Hollifield v. Monte Vista Biblical Gardens

• Decision Date: 08 August 2001
• Docket Number: No. A01A1329.,A01A1329.
• Citation: 251 Ga. App. 124,553 S.E.2d 662
• Parties: HOLLIFIELD v. MONTE VISTA BIBLICAL GARDENS, INC. et al.
• Court: Georgia Court of Appeals

553 S.E.2d 662

251 Ga. App. 124

HOLLIFIELD v. MONTE VISTA BIBLICAL GARDENS, INC. et al.

No. A01A1329.

Court of Appeals of Georgia.

August 8, 2001.

Peirce & Young, J. Wayne Pierce, Atlanta, for appellant.

King & Croft, F. Carlton King, Jr., Atlanta, for appellees.

ELDRIDGE, Judge.

James E. Hollifield owns land adjacent to lands owned by Monte Vista Biblical Gardens, Inc. and by Jack Frost II; Hollifield built a wall, driveway, and started a building encroaching on their land. Monte Vista and Frost brought an action for ejectment and trespass against Hollifield. Hollifield answered and countersued for improvements that he had made to their lands. On motions for summary judgment, the trial judge granted a writ of ejectment against Hollifield, reserving the issue of damages and attorney fees for jury trial, and granted summary judgment against Hollifield on his counterclaim for improvements. We affirm.

1. Hollifield contends that the trial court erred in granting partial summary judgment in granting a writ of ejectment against him.

(a) Hollifield contends that the plaintiffs knew of his improvements, that the improvements were on their land, and that they made no protest until the improvements were completed; therefore, the plaintiffs are now estopped from obtaining a writ of ejectment.

Hollifield admitted that he knew who the owners of the land were and had offered to purchase some of the land from Frost, but there was never an agreed-on purchase price. Further, he knew that there was only a possibility or chance that Frost would sell to him. But nonetheless, during 1994 and 1996, he proceeded to build on land that he knew that he did not own. He admitted that he erected a brick and iron-work fence, paved a driveway, and began an addition to the structure on his lot, knowing that it encroached on plaintiffs' lands, because he planned to buy the adjoining land from the plaintiffs. He also admitted paving over a path without permission of the owner, although he did not need it for ingress or egress, and he admits telling the owner on complaint that he would remove the driveway but has never done so. Defendant admits that he intended to build and did build within five feet of his property line in violation of the Fulton County Building Code and that he did not have the land surveyed or know where his property line was located. He admits that, upon notice of encroachment in building the structure, he immediately stopped construction of the block building. He admitted that, if the plaintiffs' survey is correct, he has encroached on plaintiffs' land.

On June 18, 1999, within five years of the encroachment, plaintiffs sued Hollifield for writ of ejectment from their land. Hollifield has admitted the grounds for the issuance of a writ of ejectment and denial of an estoppel defense. "Conclusive presumptions of law are termed estoppels; averments to the contrary of such presumptions shall not be allowed. Estoppels are not generally favored.... Estoppels also include all similar cases where it would be more unjust and productive of evil to hear the truth than to forbear investigation." OCGA § 24-4-24.

Under the facts and circumstances of this case, defendant's reliance upon Ga. R. &c. Co. v. Hamilton, 59 Ga. 171, 175 (1877) is misplaced, because that opinion held, "[w]e hardly think that the doctrine extends so far as to estop the company from recovering the land; but it certainly does estop the company from recovering defendant's house, if he acted in good faith in building where he did; and it is certainly difficult to see how he could have well acted in bad faith." There, the railroad had to either allow the builder/owner to remove his house from the railroad right-of-way or pay for the damage to it from removing that portion on the right-of-way as a matter of equity however, the railroad recovered its land. The Supreme Court applied equitable principles in resolving the case, because, unlike in this case, the builder acted in good faith and in ignorance.

In this case, Hollifield acted with knowledge that he was building on others' land without permission or reckless disregard of the truth; he put himself in this position with unclean hands with recklessness and knew that he was violating the county building code in building too close to his property line. Hollifield failed to determine his and his neighbors' property line by survey prior to acting and continued his knowing trespass until told to stop. Such conduct constitutes bad faith.

The party asserting the benefit of estoppel must have acted in good faith and in the exercise of reasonable diligence. See OCGA §§ 24-4-25; 24-4-27; Travelodge Corp. v. Carwen Realty Co., 223 Ga. 821, 823-824(1), 158 S.E.2d 378 (1967); Tybrisa Co. v. Tybeeland, Inc., 220 Ga. 442, 445-446, 139 S.E.2d 302 (1964); Whitco Produce Co. v. Bonanza Intl., 154 Ga.App. 92, 267 S.E.2d 627 (1980). Thus, when an adjacent property owner fails to exercise reasonable diligence by knowingly building on the land of another that he hoped to purchase, he cannot avail himself of the defense of estoppel. Travelodge Corp. v. Carwen Realty Co., supra at 824(1), 158 S.E.2d 378.

"In cases of silence there must be not only the right but the duty to speak before failure to do so can operate as an estoppel. [Cit.]" (Emphasis in original.) Tybrisa Co. v. Tybeeland, Inc., supra at 445, 139 S.E.2d 302.

Something more than mere passivity or inaction while the expense is being incurred is generally necessary to create an estoppel. In cases of silence there must be not only the right but the duty to speak, before a failure to do so can estop the owner. Where the owner merely stands by and fails to object while improvements are being constructed, he is not estopped from obtaining relief in equity against the diversion of the water, where the expenditure is made with notice, actual and constructive, of his superior rights. The defendants show no right to divert the waters of this creek from lower riparian owners. They were bound to know that it was unlawful for them so to do. They were chargeable by law with notice of the superior rights of lower riparian owners of land on this stream. They knew that the diversion of a substantial portion of the water of this stream from the land of the plaintiff was unlawful and a trespass. These facts were well known to the defendants as to the plaintiff. Where the facts are known to both parties, and where they have the same means of ascertaining the truth, there is no estoppel.

(Citations omitted.) McNabb v. Houser, 171 Ga. 744, 752 156 S.E. 595 (1931). One who has title in whole or in common to land and who sees another, in lawful possession, place valuable improvements on the land but does not give notice of his title to the builder is not subsequently estopped from asserting title. Owen v. Miller, 209 Ga. 875, 876(1), 76 S.E.2d 772 (1953).

[A]n estoppel can not be the basis of title to land, an equitable estoppel is based on the ground of promoting the equity and justice of the individual case by preventing a party from asserting his rights under a general technical rule of law, when he has so conducted himself that it would be contrary to equity and good conscience for him to allege and prove the truth.

(Citations and punctuation omitted.) Davis v. Auerbach, 78 Ga.App. 575, 579(3), 51 S.E.2d 527 (1949); see also Yaali, Ltd. v. Barnes & Noble, Inc., 269 Ga. 695, 696-697(2), 506 S.E.2d 116 (1998). "The recognition of such a property right [easement] now based solely on estoppel exceeds the reach of estoppel by deed, whether considered as an evidentiary rule or a substantive principle of property law." Yaali, Ltd. v. Barnes & Noble, Inc., supra at 697, 506 S.E.2d 116.

When a party comes into court with unclean hands, equity will not grant relief to such party. See Head v. Walker, 243 Ga. 108, 110, 252 S.E.2d 440 (1979); Fuller v. Fuller, 211 Ga. 201, 202, 84 S.E.2d 665 (1954). Here, Hollifield not only intentionally trespassed on his neighbors' land, but he also intended to violate the Fulton County Building Code by building within the mandated side yard, which ordinance acted in part to prevent such encroachments.

(b) Hollifield contends that the plaintiffs "waived any rights which they had to the property which appellant constructed upon." None of the cases relied upon by defendant regarding waiver involve "waive[r of] any rights which [an owner] had to property," but instead involve the waiver of procedural rights or claims other than property rights. Therefore, factually and legally such cases are distinguished from this action for ejectment to protect title to land.

Between 1994 and 1996, the owners demanded that the driveway be removed from their property, and Hollifield indicated that he would remove it. In 1999, after he received notice that he was building on the plaintiffs' land, he stopped construction. Thus, the plaintiffs timely protested encroachments by the defendant prior to suit.

Defendant contends that the plaintiffs lost title to their land by waiver. Other than by eminent domain, prescriptive title is the only way title to land may be lost by the action or inaction of the legal or equitable owner to another asserting rights in the land adverse to the owner. Adverse possession requires that the possession of the land be open and adverse possession continuously for 20 years by the claimant and his privies. OCGA §§ 44-5-160; 44-5-161; 44-5-163; Ga. Power Co. v. Irvin, 267 Ga. 760, 762-765(1), 482 S.E.2d 362 (1997). Thus, the adverse possession must be continuous, exclusive, uninterrupted, public, and peaceful for 20 years for a prescriptive title to be acquired by another. Ga. Power Co. v. Irvin, supra at 760, 482 S.E.2d 362. Even adverse possession under color of title requires seven years adverse possession. OCGA § 44-5-164; Spillers v. Jordan, 96 Ga.App. 426, 432-434(3), 100 S.E.2d 483 (1957). Plaintiffs...