Houston v. Flory

• Citation: 766 S.E.2d 227,329 Ga.App. 882
• Decision Date: 20 November 2014
• Docket Number: No. A14A1449.,A14A1449.
• Court: United States Court of Appeals (Georgia)
• Parties: HOUSTON et al. v. FLORY et al.

329 Ga.App. 882
766 S.E.2d 227

HOUSTON et al.
v.
FLORY et al.

No. A14A1449.

Court of Appeals of Georgia.

Nov. 20, 2014.

766 S.E.2d 228

Mitchell L. Baker Jr., Clayton, for Appellants.

Jones Law, Bonnie Lowe Jones, Dawsonville, for Appellees.

Opinion

BRANCH, Judge.

329 Ga.App. 882

In 1998, a father divided approximately 10 acres of land into two parcels and conveyed one each to his son, Earnest Smith, and daughter, Rebecka Flory. The two conveyances included mutual

329 Ga.App. 883

easements over three gravel drives located on the properties, two of which were clearly marked on plats referenced in each deed; the deeds provided only a description of the third gravel drive. Years later, after Michael and Kylie Houston acquired the son's parcel in a foreclosure sale, a dispute arose as to the location and enforceability of the third easement. Smith and Flory therefore filed suit seeking a declaration of their rights. Upon cross-motions for summary judgment by the Houstons and Smith, the trial court ruled in favor of Smith

766 S.E.2d 229

and Flory;¹ the Houstons appeal. For the reasons that follow, we affirm.

On appeal from the grant of summary judgment, appellate courts “conduct[ ] a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Shekhawat v. Jones, 293 Ga. 468, 469, 746 S.E.2d 89 (2013) (citation and punctuation omitted); Ga. Dept. of Corrections v. Developers Sur. & Indem. Co., 324 Ga.App. 371, 372, 750 S.E.2d 697 (2013).

Construed in favor of the Houstons, the record shows that on October 23, 1998, James Earl Smith divided his 10.2 acre tract of land by conveying a 7.64 acre tract to Smith² (“Tract 2”); the conveyed tract's northern boundary is both the boundary line with the remaining parcel (“Tract 1”) and a land lot line separating Land Lots 7 on the north, and 8 on the south, of the 5th Land District in Rabun County. The Smith deed references a survey plat dated August 31, 1996. The plat shows the 7.64 acre tract (a/k/a “Tract 2”) as a roughly square parcel below the land lot line immediately south of a rectangular portion of the smaller tract (a/k/a “Tract 1”); on the western end of the rectangular part of Tract 1 is an additional triangular-shaped area of Tract 1 through whose northernmost tip a gravel road enters the property with the same road also providing access to Tract 1 at its western end. The deed to Smith describes this gravel “road” as Gipson Road, a county road, and describes the three gravel “drives” as follows:

Also, as shown on said plat, two (2) gravel drives extend in a Southerly direction from said gravel road and into that

329 Ga.App. 884

portion of said 10.20 acre tract of land that lies in Land Lot 8 of the Fifth land District of Rabun County, Georgia. Also there is a gravel drive that is not depicted on said plat that extends in an Easterly direction along the land lot line from the Easternmost gravel drive that is depicted on said plat. Said gravel drive terminates within the boundaries of said 10.20 acre tract of land.

(Emphasis supplied).

On December 4, 1998, James Earl Smith conveyed Tract 1 to Flory.³ The deed references a survey plat dated November 12, 1998.⁴ The Flory deed contains essentially the same description of the three gravel drives as the Smith deed:

Also, as shown on said plat, two (2) gravel drives extend in a Southerly direction from said gravel road and into said Tract 2. Also there is a gravel drive that is not depicted on said plat that extends in an Easterly direction along the Northerly line of said Tract 2 and Southerly line of Tract 1 from the Easternmost gravel drive that is depicted on said plat. Said drive terminates within the boundaries of said Tract 1 and Tract 2.

(Emphasis supplied).

Each deed also describes the conveyance of the easements in similar, but not identical, language. The Smith deed first grants to Tract 2 easements for access to Gipson Road; it then subjects Tract 2 to an easement along the third gravel drive thereby giving “additional road access” to Tract 1:

ALSO CONVEYED is a perpetual, non-exclusive road right of way easement over and across said gravel road and the three (3) above described gravel drives for the purpose of providing road access to and from [Tract 2] with Gipson Road, a public road. [Tract 2] is conveyed SUBJECT TO those portions of the same lying within the bounds of said gravel drive that runs

766 S.E.2d 230

along said land lot line. That said gravel drive will also be used to provide additional road access to [Tract 1].

329 Ga.App. 885

(Emphasis supplied). In the easement-conveyance language of the Flory deed, there appears to be a typographical error, as indicated in the following quotation, that is not relevant to the issue presented in this appeal. Reading out the typographical error, the Flory deed first subjects Tract 1 to the easements previously granted to Tract 2; it then grants to Tract 1 an easement over the third gravel drive, thereby providing access to Gipson Road:

The above described Tract 2 [sic] is conveyed SUBJECT TO the three (3) above described drives in that said drives provide road access to Tract 2 from Gipson Road, a public road. ALSO CONVEYED is a perpetual, non-exclusive road right of way easement over and across said gravel road that lies along the property line that divides Tract 1 from Tract 2 for the purpose of providing road access to and from [Tract 1] with Gipson Road, a public road.

(Emphasis supplied).

As can be seen, the two significant asymmetries in the language of the deeds are that the Smith deed specifically subjects those portions of Tract 2 “lying within the bounds of said [third] gravel drive” to the disputed easement in favor of Tract 1; there is no corresponding language in the Flory deed. The Smith deed also states that the third gravel drive provides “additional road access” to Tract 1.

Both deeds also grant the respective owners rights to water from a spring located to the east of both parcels and running across Tract 1 to Tract 2 near the end of the disputed easement; the spring supplies water for Tract 1. Finally, Smith, who lived on the greater tract since the late 1970s, no longer has any ownership interest in Tract 2; his only interest in Tract 1 is that he leases, apparently with an option to purchase, the triangular portion of Tract 1 from his sister, where he lives with his family and helps maintain Tract 1 and the water system. Smith and Flory's parents reserved a life estate in Tract 1 and they lived on the property until their deaths in 2011.

In 2007, Smith lost title to Tract 2 in foreclosure. On July 30, 2009, the Houstons purchased Tract 2 from CitiMortgage, Inc. The Houstons' deed provides for the same easements as the Smith deed and it references the same plat referenced in the Flory deed. The Houstons' deed includes essentially the same language found in the Smith deed that established the easement for the third gravel drive,

329 Ga.App. 886

including part of the asymmetrical language noted above:

Also there is a gravel drive that is not depicted on said plat that extends in an easterly direction along the northerly line of the above conveyed tract 2 from the easternmost gravel drive that is depicted on said plat. Said drive terminates within the boundaries of said tract 1 and tract 2.... [Tract 2] is conveyed subject to those portions of the same lying within the bounds of said gravel drive that runs along said

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