Stovall v. Coggins Granite Co.
| Citation | 42 S.E. 723,116 Ga. 376 |
| Parties | STOVALL v. COGGINS GRANITE CO. et al. |
| Decision Date | 29 October 1902 |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A written conveyance, under seal, from the owner of land to S. & E., conveying a strip of land to the latter for the purpose of building a spur track from the main stem of a railroad to the stone quarry, the stone and the right to mine it having been previously purchased from another by S. & E., and reserving the right to re-enter when S. & E. "get through using said road in working quarry," conveyed an easement which is appurtenant to the dominant estate of S. & E., and which passed to their successors in title in the quarry, although the conveyance of the strip contained no words of assignability.
Error from superior court, Elbert county; H. M. Holden, Judge.
Action by J. T. Stovall against the Coggins Granite Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.
I. C Van Duzer and W. D. Tutt & Son, for plaintiff in error.
J. N Worley and P. P. Proffitt, for defendants in error.
On April 27, 1894, Swift & Etheridge, a partnership, purchased from Almand "all the rock on" a certain tract of land, with the right to erect all buildings that might be "needed to carry on the business of mining or quarrying of stone on said land," and a strip of land 50 feet wide, extending from the quarry toward a named railroad, as far as the line of the land of Stovall. On May 5, 1894, Stovall executed an instrument under seal, which, after acknowledging receipt of $100 from Swift & Etheridge, conveyed to them a strip of his land about 100 feet wide and 350 feet long, "for the purpose of building and grading and using as a sidetrack" from the railroad to the line between the land of Stovall and the 50-foot strip granted by Almand. In this instrument it was provided that: Stovall. In June, 1895, Almand, by deed, conveyed to Thomas M. Swift and John W. Etheridge (the two partners) the entire lot of land on which the quarry was located. In 1896 the firm of Swift & Etheridge was dissolved. In January, 1898, Swift conveyed to Long his half interest in the land on which the quarry was located, together with his interest in the "tools, derricks, and fixtures now used or which have been used in the quarrying business" heretofore mentioned. In 1901 Stovall brought suit against certain persons, including Long and a partnership of which Long and Etheridge were members, for the recovery of the strip of land on which the right of way was located. In their answer the defendants denied any interference with the fee in the land, but claimed that the right of way over it from the quarry to the railroad track was an easement appurtenant to the quarry, and was the right and property of the defendants. On the trial there was no conflict in the evidence as to any material fact. The conveyances above mentioned were introduced, and the evidence showed that the firm of Swift & Etheridge had been dissolved in 1896. It also appeared that the spur track had been constructed from the quarry to the main stem of the railroad, and that the land here involved was rough and uneven, and, independently of this spur track and of its use in connection with the quarry, worth not more than $10. The defendants are now operating the quarry and using the right of way in connection with the business. The judge directed a verdict for the defendants. The plaintiff moved for a new trial, and the judge overruled the motion. To this ruling exception is taken. The principal question made in the motion for new trial, and the only one argued here, was whether the judge erred in directing a verdict for the defendants.
The right of way granted by the plaintiff was to Swift & Etheridge, and the conveyance is by both sides treated as a conveyance to a partnership. This firm was subsequently dissolved, and the new firm, which is one of the defendants is a distinct entity, although it includes among its members Etheridge and the assignee of Swift's interest in the quarry. If the instrument executed by Stovall created but a right of way in gross, such right could be exercised only by the old firm, as such, operating and working the quarry, and determined when the partnership was dissolved. If, on the other hand, the right was an easement appurtenant to the quarry, it ran with the quarry, and may be exercised by the grantees' successors in title so long as they are operating and working the quarry. If the easement was appurtenant, it passed with the dominant estate, although the conveyance thereof may not have expressly mentioned the easement, or contained a general conveyance of the appurtenances of the estate. U.S. v. Appleton, 1 Sumn. 492, Fed. Cas. No. 14,463; Taylor v. Dyches, 69 Ga. 455; Lide v. Hadley, 36 Ala. 627, 76 Am.Dec. 338; Barnes v. Lloyd, 112 Mass. 224; Hollenbeck v. McDonald, Id. 247; Washb. Easem. (4th Ed.) *26; 10 Am. & Eng. Enc. Law (2d Ed.) p. 418. The decision of this case must therefore depend upon the question whether the right granted by Stovall was a right of way in gross or an easement appurtenant. An easement has been defined to be "a privilege without profit which the owner of one neighboring tenement has of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land for the advantage of the dominant owner." 10 Am. & Eng. Enc. Law (2d Ed.) p. 398. An easement in gross, as the term is now commonly used, is a mere personal right in the land of another, while an easement appurtenant is an incorporeal right which is attached to and belongs to some greater or superior right. Id. p. 403. In determining whether a right granted is appurtenant or in gross, courts must consider the terms of the grant, the nature of the right, and the...
To continue reading
Request your trial