Moxley v. Adams

• Citation: 8 S.E.2d 525,190 Ga. 164
• Decision Date: 11 April 1940
• Docket Number: 13175
• Parties: MOXLEY v. ADAMS.
• Court: Georgia Supreme Court

8 S.E.2d 525

190 Ga. 164

MOXLEY v. ADAMS.

13175

Supreme Court of Georgia

April 11, 1940

Jackson & Darby, of Vidalia, for plaintiff in error.

Sharpe & Graham, of Lyons, Duncan Graham, of Vidalia, and T Ross Sharpe, of Lyons, for defendant in error.

Syllabus Opinion by the Court.

JENKINS Justice.

1. The right to take from land a part of its soil or timber, often designated as an easement but also referred to as constituting a larger interest, may arise from an express grant for a valuable consideration; and when so created, it is not revocable at the will of the grantor. Harrell v. B. W Williams & Sons, 159 Ga. 230(1, a), 125 S.E. 452; 19 C.J. 870, 905, §§ 10, 11, 89. See Code, § 85-1404.

2. 'An easement may be lost by abandonment, or forfeited by nonuser, if the abandonment or non-user shall continue for a term sufficient to raise the presumption of release or abandonment.' Code, § 85-1403. But 'the evidence to establish a forfeiture of an easement by abandonment or nonuser must be decisive and unequivocal'; and where the testimony is in dispute as to the facts, the question as to any abandonment is for the jury, in applying to the evidence the law charged by the judge. Gaston v. Gainesville, etc., Ry. Co., 120 Ga. 516(2, 3), 519, 48 S.E. 188; Calfee v. Jones, 54 Ga.App. 481, 483, 484, 188 S.E. 307.

(a) Where in a grant of a right to take from land soil or timber no time is specified within which the right is to be exercised it is the general rule that this must be done 'within a reasonable time,' and that question is 'to be decided in the light of all the facts and circumstances of the transaction.' Harrell v. Williams, supra, and cit.

3. While there are legal principles to the effect that covenants pertaining to a lease, when coupled with an option to purchase, may become inoperative upon the exercise of such option, on the theory that the lesser estate with the covenants pertaining thereto have thus become merged into the greater estate by purchase (16 R.C.L. 804, 805; and see Augusta Land Co. v. Augusta Ry., etc., Co., 140 Ga. 519(1), 522, 79 S.E. 138; Carr v. Augusta Grocery Co., 183 Ga. 346, 188 S.E. 531; Keiley v. Citizens' Savings Bank & Trust Co., 173 Ga. 11, 159 S.E. 527; Nelson v. Atlanta, etc., Ry. Co., 135 Ga. 572, 69 S.E. 1118; Bentley v. Barrett, 26 Ga.App. 527(3), 106 S.E. 815), these principles of merger would have no application to a lease with an option to purchase, in a case such as this, where the instrument contained, not only the lease and option to purchase the described leased premises, but an additional grant to the lessee and optionee of a right to remove soil from another and different lot owned by the lessor for the purpose of 'filling in' the leased premises, and this grant was a part of the consideration for both the agreed amount of rentals and the agreed amount of purchase-price. Under the sworn pleadings and other evidence at the interlocutory hearing, such a right to remove soil from a lot other than the leased premises was not lost by any merger of the lease into a subsequent deed to the leased premises, executed to the lessee under the option to purchase, even though the deed did not itself refer to the easement relating to the other lot.

(a) In the absence of any express provision, limiting the time within which the grantee of the right of soil removal should exercise that right, the...