Kiser v. Warner Robins Air Park Estates, Inc.
| Decision Date | 07 September 1976 |
| Docket Number | No. 31077,31077 |
| Citation | 237 Ga. 385,228 S.E.2d 795 |
| Parties | Oscar J. KISER et al. v. WARNER ROBINS AIR PARK ESTATES, INC. |
| Court | Georgia Supreme Court |
Nunn, Geiger, Rampey, Buice & Harrington, David M. Pierce, Perry, for appellants.
Aultman, Hulbert, Cowart & Daniel, Tom W. Daniel, Pamela M. Richards, Warner Robins, for appellee.
Warner Robins Air Park Estates, Inc., sought injunctive relief against Oscar J. and Ann M. Kiser, Charles E. and Margaret F. Buckman, and Norman K. and Patricia A. Funk, alleging that the defendants were threatening to fence the southern boundary of an easement owned by the plaintiff which would prevent access to its property lying south of the easement. After hearing evidence, the trial judge granted the injunctive relief sought and Kiser et al. appeal.
The appellee obtained title to the easement from Gottschalk & Gottschalk, Inc. Gottschalk obtained its title from Riley and Lily Buchanan, predecessors in title of the appellants. The deed from the Buchanans to Gottschalk conveyed land which lay mainly north of the property later conveyed to the appellants. This deed conveyed an easement as follows: 'Also conveyed is an easement 25 feet in width extending east and west across the southerly boundary of the property retained by grantor.' This easement was not contiguous to the property conveyed in the deed except for 25 feet across a strip 50 feet wide which connected property already owned by Gottschalk to the main property conveyed in the deed. For a considerably greater distance the easement was contiguous to property already owned by Gottschalk lying south of the property retained by the Buchanans (now owned by the appellants).
1. The appellants contend that the easement was appurtenant only to the strip of 50 feet, and not to the property owned by Gottschalk (later conveyed to the appellee) at the time the easement was granted.
An appurtenant easement has two tenements, the dominant tenement, to which the right belongs, and the servient tenement, upon which the obligation rests. 25 Am.Jur.2d, Easements, § 11, p. 425. An easement can be used only in connection with the estate to which it is appurtenant. 28 C.J.S. Easements § 92, p. 772.
It is not necessary that the grant of an easement accompany the conveyance of the lands forming the dominant tenement. An easement may be granted appurtenant to property already owned by the grantee. Stovall v. Coggins Granite Co., 116 Ga. 376, 42 S.E. 723 (1902).
In the construction of instruments creating easements, the court must ascertain and give effect to the intention of the parties. 28 C.J.S. Easements § 26, p. 680; Georgia Power Co. v. Leonard, 187 Ga. 608, 611, 1 S.E.2d 579 (1939).
The easement in the deed from the Buchanans to Gottschalk did not specify that it would provide ingress and egress only to and from the property therein conveyed. It was the general grant of an easement in the private driveway. The statement that the easement extended east and west merely described its location. According to the evidence, the strip of 50 feet was an air taxi strip, dangerous for vehicular traffic. The only use of the easement was to provide access from the property already owned by Gottschalk to a public street.
The trial judge did not err in finding that it was the intention of the parties that the dominant estate included the land owned by Gottschalk south of the easement. It was not error to enjoin the appellants from erecting a fence between the easement and the appellee's property on the south of the easement.
2. The appellants assert that the court erred in finding that the easement was without any limitation, and erred in failing to hold that the appellee had forfeited its right to the easement by failure to keep it in repair.
The written contract of sale, entered into prior to the deed granting the easement, described the private driveway here involved and stated: 'Second party has the right of ingress and egress over said private driveway provided it maintains same to prevent dust and potholes.' The deed executed pursuant to the contract...
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Flyboy Aviation Props., LLC v. Franck (In re Flyboy Aviation Props., LLC), Bankruptcy No. 13–55775–BEM.
...easement is extinguished by its express terms. See Weaver v. Henry, 222 Ga.App. 103, 473 S.E.2d 495 (1996); see also Kiser, 237 Ga. at 386–387, 228 S.E.2d 795 (explaining that a later deed which granted an original easement without the limiting language “could not free the easement from any......
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...232 S.E.2d 72 (1977); see also G.W. Featherston Min. Co. v. Young, 118 Ga. 564, 45 S.E. 414 (1903); Kiser v. Warner Robins Air Park Estates, Inc., 237 Ga. 385, 386, 228 S.E.2d 795 (1976). The Special Stipulations which purport to create and convey an easement fail to do so because the docum......
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...unless the language used unequivocally indicates an intention ... to that effect." Id. [¶ 16.] In Kiser v. Warner Robins Air Park Estates, Inc., 237 Ga. 385, 228 S.E.2d 795, 798 (1976), the easement provided: "Second party has the right of ingress and egress over said private driveway provi......
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...by the fact that title to the dominant tenements may have vested prior to the creation of the easements. Kiser v. Warner Robins Air Park Estates, 237 Ga. 385, 386, 228 S.E.2d 795 (1976). A provision in the agreements granting defendants a first refusal on the lots described in the warranty ......
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