Norton v. Holcomb

• Decision Date: 29 March 2007
• Docket Number: No. A06A2437.,A06A2437.
• Citation: 285 Ga. App. 78,646 S.E.2d 94
• Parties: NORTON v. HOLCOMB.
• Court: Georgia Court of Appeals

285 Ga. App. 78

646 S.E.2d 94

NORTON v. HOLCOMB.

No. A06A2437.

Court of Appeals of Georgia.

March 29, 2007.

Reconsideration Denied April 13, 2007.

William A. Neel, Jr., Cartersville, for appellant.

George L. Welborn, Elizabeth H. Brabham, Downey & Cleveland, Marietta, for appellee.

MIKELL, Judge.

Vinnie Worley Holcomb sued Dirone C. Norton in Norton's home county of Cherokee for wilful trespass and intentional infliction of emotional distress, alleging that he unlawfully and intentionally carved out a road and knocked down trees on property she owns in Pickens County. Norton filed a counterclaim in three counts as follows: (1) action to quiet title, OCGA § 23-3-61; (2) condemnation of a private way;¹ and (3) damages for wrongful obstruction. He also moved to transfer the case to Pickens County because the case involved title to land in that county. The trial court denied the motion to transfer and granted summary judgment in favor of Holcomb on her trespass claim and Norton's counterclaim. Norton appeals these rulings. For reasons that follow, we affirm.

On appeal from a grant of summary judgment, this court conducts a de novo review of the evidence viewed in the light most favorable to the nonmovant, to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.² So viewed, the evidence shows that in 1996, Holcomb inherited 10.07 acres of land in Pickens County, which had been acquired by her father Ernest Worley in 1944 from Sion Bennett, and was bounded on its northerly side by Cove Mountain Road. In 2003, Norton purchased from U.S. Pipe Realty, Inc., 59.88 acres of land located south of and adjacent to Holcomb's property. The deed of conveyance did not include any express written easement or right-of-way for access to the property.³ However, an old unpaved roadbed on Holcomb's land, known as the Marble Company Road, extended from Cove Mountain Road to Norton's property. In 2003, Norton approached Holcomb and offered to trade one and one half acres of his property for one acre of her property, including the Marble Company Road, thereby "eliminating the road that . . . just sort of dissects the middle of her property." Holcomb declined to trade or sell her property at that time.

In 2004, Norton attempted to meet with Holcomb to discuss his plans to hire a timber company to remove trees on his property. Robert Lowery, Holcomb's son-in-law, told Norton that Holcomb would not meet with him and was not interested in trading or selling her land. In June 2004, Norton entered into a contract with Georgia Mountain Forestry Service, Inc. ("GMFS"), to cut and remove timber on his property. Norton testified that he met with GMFS representative Henry Anderson and directed GMFS to use the old roadbed on Holcomb's property to access his property. Norton did not tell Holcomb about his contract with GMFS.

On the morning of June 7, 2004, GMFS began to clear the old roadbed on Holcomb's property, until Lowery objected, advised Norton that he was trespassing and called the police. On June 11, 2004, Norton was advised that barbed-wire cable and a no trespassing sign had been erected across the roadway. On June 14, 2004, GMFS workers returned to the site, removed the cable and sign—as instructed by Norton—and began to cut timber until police ordered them to remove their equipment from the property. According to Norton, GMFS could not remove any timber and left 29 pushed trees laying in the roadbed. When asked if he directed GMFS to push down the trees along the roadbed, Norton testified that "[i]t was at my direction that Henry Anderson authorize [sic] someone or get somebody to do it. I did not know who they were going to hire, but yes. The timber company hired the bulldozer and they, you know accessed the road."

With respect to the road, Norton averred that it had existed since 1883 and had been used by the Georgia Marble Company, but that Holcomb had never given him permission to travel across her property. Norton further testified that he was aware that he could initiate a legal proceeding to obtain a private right-of-way across Holcomb's property, but chose not to do so. Both Holcomb and Lowery testified that there was no road on the property and that Norton cut down trees to make a road. Holcomb also testified that she did not visit the property from 1970 to 1995, when her mother owned it.

1. OCGA § 44-9-1 provides that

[t]he right of private way over another's land may arise from an express grant, from prescription by seven years' uninterrupted use through improved lands or by 20 years' use through wild lands, [or] by implication of law when the right is necessary to the enjoyment of lands granted by the same owner [or by condemnation in Superior Court].

A related statute concerning easements, OCGA § 44-9-54, states that "[w]henever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way." This latter statute has spawned a plethora of opinions which recite that the required time period to acquire a private way is seven years without clearly distinguishing between "wild" and "improved" lands.⁴ A 1904 case,⁵ however, construes the predecessor statutes "in pari materia" to mean that "[s]even years uninterrupted use will acquire the right of way over improved lands, but twenty years of such use is necessary to establish such right over wild or unimproved lands."⁶ That case remains valid today. Consequently, to the extent that the allegedly servient lands in the case at bar are unimproved, 20 years' continuous use is required in order for a prescriptive easement to arise.

2. In several related enumerations, Norton contends that the trial court erred in granting summary judgment to Holcomb on her trespass claim because he acquired a private way by prescription and hence had a right to use the roadway. We disagree.

A claim of prescriptive title requires proof that the possession did not originate in fraud and was (1) public; (2) continuous; (3) exclusive; (4) uninterrupted; (5) peaceable; and (6) accompanied by a claim of right.⁷ "The use must also be adverse rather than permissive."⁸ In order to establish the existence of a private way, Norton was required to make three showings: (1) that he, or a predecessor in title, has been in uninterrupted use of the alleged private way for at least twenty years; (2) that the private way is no more than twenty feet wide, and that it is the same twenty feet originally appropriated; and (3) that he has kept the private way in repair during the period of uninterrupted use.⁹ Merely using a roadway is not enough to acquire prescriptive rights.¹⁰

To allow a person to acquire prescriptive rights over the lands of another is a harsh result for the burdened landowner. Thus, Georgia courts have strictly construed the elements of OCGA § 44-9-1 against the party who asserts a right of entry over the lands of another. If the prescriber fails to show any of the elements necessary to establish prescriptive rights, he cannot recover.¹¹

Possession by different predecessors in interest may be added together when the previous possession also satisfies the other elements of adverse possession.¹² Proof that the claimant made any necessary repairs is required because such repairs would give notice to the owner of the servient land that the use of the roadway was adverse.

Norton claims he is entitled to a prescriptive easement because the roadbed running through Holcomb's property was possessed and continually used by his predecessor in interest, the Marble Company "and its representatives," as a means of access since 1883. As the party opposing summary judgment, the evidence must be construed most favorably to Norton, and he must be given the benefit of all favorable inferences and reasonable doubts which arise from the evidence.¹³ However, even utilizing this standard, Norton's evidence is insufficient to raise a question of fact.

Norton tendered several affidavits in opposition to Holcomb's motion. Josh Fitts, a resident of the area for over 80 years, averred that the roadbed has existed for as long as he can remember, and that one time in 1957, while he was employed by the Marble Company, his employer instructed him to use the road to access the company's property. Patsy Daniel, another lifelong resident of the area, averred that she traversed the road in the 1940s on her way to pick crabapples and muscadines on the Marble Company property. Bud Duncan, also a lifelong resident of the area, similarly averred that in the 1930s and 1940s his father used the old roadbed to access the Marble Company property. Tom Daniel, a 40-year resident of the area, averred that the road was obvious and always used to get into the Marble Company land. The Pickens County Commissioner averred that he is familiar with the "old road," that the Marble Company constructed many roads in the area, and that some of the roads are still in use today. Norton in his own affidavit averred as follows:

At the time we purchased this property we were fully aware that the deed of transfer to us did not include any written easement to an EXISTING ROADWAY known to me as the Marble Company Road which connected the land we purchased to Cove Road by crossing over property owned by Vinnie Worley Holcomb. However, having grown up on the nearby land, I was very familiar with this old Marble Company Road that runs off of Cove Road . . . and I personally knew that this Marble Company Road had always been used as the means of access to such land. When we purchased the above-referenced tract of land, I was not concerned about the access to the land because of the continued use of Marble Company Road by many people...