McGregor v. River Pond Farm, LLC

• Citation: 719 S.E.2d 546,11 FCDR 3708,312 Ga.App. 652
• Decision Date: 16 November 2011
• Docket Number: No. A11A1244.,A11A1244.
• Parties: McGREGOR et al. v. RIVER POND FARM, LLC.
• Court: Georgia Court of Appeals

11 FCDR 3708
312 Ga.App. 652
719 S.E.2d 546

McGREGOR et al.
v.
RIVER POND FARM, LLC.

No. A11A1244.

Court of Appeals of Georgia.

Nov. 16, 2011.

[719 S.E.2d 547]

Vansant & Corriere, Alfred N. Corriere, Albany, for appellants.

Jesse G. Bowles III, Cuthbert, for appellee.

ADAMS, Judge.

[312 Ga.App. 652] River Pond Farm, LLC sued to enjoin the appellants from interfering with its alleged easement on the appellants' property. The appellants counterclaimed to quiet title and, without requesting a jury trial, asked the

[719 S.E.2d 548]

superior court to submit the matter to a special master pursuant to OCGA § 23–3–63. After both parties filed motions for summary judgment, the special master issued a report finding a prescriptive easement in favor of River Pond. Over an objection by the appellants, the superior court affirmed the special master's findings, adopted them as its own, and issued a judgment in favor of River Pond.

Most of the facts are not in dispute. R.C. Howell died in 1968 owning significant acreage along the Chattahoochee River in Early County. The parties to this suit agree that they are the successors in interest, respectively, of land held by Howell's two daughters—Louise Howell Gay and Grey Howell Bell—who inherited their father's land and, in 1972, divided it roughly equally between them. The appellants are trusts, owned by Robert Lamar McGregor, Sr., and Patricia Gay McGregor, that are successors in interest to over 700 acres of land acquired by Patricia's mother, Louise Howell Gay (the McGregor property). And since September 2004, River Pond, an entity formed by Grey Howell Bell's children, has been the successor in interest to over 700 acres of land located immediately south of the McGregor property that Grey Howell Bell received when the property was divided (the Bell property). A road runs from northeast to southwest across the McGregor property to the Bell property, providing a route from County Route 81, a/k/a “Old River Road,” to the Bell property. The road existed in 1968 and before, and it exists essentially unchanged today in the same location; ¹ but neither the road nor any related easement was mentioned in the deeds that divided the property. The owners of the Bell property, including River Pond, have used the road to access the Bell property since the division, and they maintained the road at their own expense since 1968, all with full knowledge of the McGregors.² Members of the Bell family also hunted on the McGregor property this entire time, and as far back as when R.C. Howell owned all the land.

[312 Ga.App. 653] The parties' dispute concerns the exact nature of the origin and development of the arrangement whereby the Bell family used the road and hunted on the McGregor property.

1. When River Pond sued to remove a gate that the McGregors erected blocking the road to the Bell property, the McGregors counterclaimed for “quia timet against all the world” pursuant to OCGA § 23–3–60 et seq. Those Code sections provide that the issue may be submitted to a special master who has jurisdiction to review the evidence and submit findings to the court:

[T]he special master shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner's title and all other interests in the land, or any part thereof, which may be adverse to the title claimed by the petitioner, or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge of the court[.]

OCGA §§ 23–3–66; 23–3–63.

Under this law, the McGregors had the right to demand a jury trial of any question of fact; the special master could also request a jury to try issues of fact. OCGA § 23–3–66. But because the McGregors failed to file a jury demand before the special master heard the case, the special master became “the arbiter of law and fact.” Thornton v. REB Properties, 237 Ga. 59, 226 S.E.2d 741 (1976), cited with approval in Addison v. Reece, 263 Ga. 631, 632(1), 436 S.E.2d 663 (1993). Although the special master does not divest the trial court of overall jurisdiction of the case, Harbuck v. Houston County, 284 Ga. 4, 5(1), 662 S.E.2d 107 (2008), once the trial court adopts the special master's findings and enters judgment, the court's decision is upheld by the appellate court unless clearly erroneous.

[719 S.E.2d 549]

Nelson v. Georgia Sheriffs Youth Homes, 286 Ga. 192, 193, 686 S.E.2d 663 (2009). “Therefore, if there is any evidence supporting the judgment of the trial court, it will not be disturbed.” (Citation omitted.) Cernonok v. Kane, 280 Ga. 272, 273(1), 627 S.E.2d 14 (2006). But conclusions of law are reviewed de novo. Second Refuge Church, etc. v. Lollar, 282 Ga. 721, 724(2), 653 S.E.2d 462 (2007).

2. Here, the special master found that the use and maintenance of the road by River Pond, its agents, and its predecessors in title for at least 20 years (from 1968 to 1988, i.e., dating back to before the property was divided), being known to the McGregors, and without seeking permission and without objection by the McGregors, presented adverse notice to the McGregors that the users intended to use the road as their own. The special master also found that the law only requires seven years of such action and that any actions adverse [312 Ga.App. 654] to their claim of easement taken by River Pond or its predecessors in interest after seven years of such use could not cause a forfeiture or abandonment of an established prescriptive easement.³ The trial court adopted the facts as found by the special master and found that the special master's report was consistent with the evidence presented at the November 4, 2008 hearing on the temporary restraining order and the hearing on the motion for summary judgment, neither of which the special master witnessed. The court then affirmed and incorporated the report of the special master in a final judgment, purportedly granting summary judgment in favor of River Pond, and finding that River Pond had a prescriptive easement across the McGregor property. The court also granted the McGregors' action to quiet title with regard to all possible claims other than the prescriptive easement.

More specifically, on the law, the special master cited four well-known requirements for a prescriptive easement: uninterrupted use for seven years or more; the width of the easement does not exceed twenty feet; the width did not deviate from the original width; and that the plaintiff kept the easement open and in repair for seven uninterrupted years. See generally Jackson v. Norfolk...