Strozzo v. Coffee Bluff Marina Property
Decision Date | 12 June 2001 |
Docket Number | No. A01A0334, No. A01A0335. |
Citation | 550 S.E.2d 122,250 Ga. App. 212 |
Court | Georgia Court of Appeals |
Parties | STROZZO et al. v. COFFEE BLUFF MARINA PROPERTY. Rosso Corsa Enterprises, Inc. v. Coffee Bluff Marine Rescue Squadron of America, No. 2A. |
OPINION TEXT STARTS HERE
Cletus W. Bergen II, Savannah, for appellants (case no. A01A0334).
Buchsbaum & Lowe, Alan S. Lowe, James W. Krembs, Savannah, for appellant (case no. A01A0335).
Todd E. Schwartz, Atlanta, C. James McCallar, Jr., Savannah, for appellees.
Rosso Corsa Enterprises, Inc., grantee under a trustee's deed after foreclosure, filed this quia timet petition under OCGA § 23-3-60 to establish itself as the fee simple title holder to real property commonly known as Coffee Bluff Marina, fronting on the Forrest River in Chatham County. Tony Strozzo and other property owners in the so-called Town of Rosedew asserted an express easement and also claimed a general right-of-way, alleging the land had been dedicated and accepted as a public park. Coffee Bluff Marine Rescue Squadron of America, No. 2A (MRS) also responded, claiming a prescriptive easement to a portion of the property.
The case was referred to a special master, who considered cross-motions for summary judgment and recommended that summary judgment be granted to Rosso Corsa as against the residents because as property owners they abandoned any express easement and as members of the public at large they acquired no easement. The special master further recommended that fee simple title to the entire property be established in Rosso Corsa but subject to a prescriptive easement in favor of MRS to access, use, and maintain improvements it made which exceeded the scope of the original permissive use granted to it by Mrs. Phillip Falligant, Rosso Corsa's predecessor in title. The trial court adopted the special master's report and entered summary judgment in accordance with its recommendations. In Case No. A01A0334, the residents appeal the grant of summary judgment in favor of Rosso Corsa, and in Case No. A01A0335, Rosso Corsa appeals the grant of summary judgment establishing a prescriptive easement in favor of the MRS.1
1. Appellants, as Falligant Subdivision landowners and also as members of the public at large, enumerate the grant of summary judgment against their claims to an easement. When reviewing the grant or denial of summary judgment, this Court conducts a de novo review of the law and the evidence, construing the evidence and all reasonable deductions therefrom in favor of the non-movant.2 Viewed in this light, the record shows the following.
According to a copy of the recorded 1887 plat of the Falligant Subdivision of the Coffee Bluff Plantation in the Town of Rosedew, Chatham County, Dr. L.A. Falligant (the common owner in appellant-residents' chains of title) set aside Park Place East, Rosedew Park, and Park Place West from the numbered lots of the subdivision. Park Place East and West are narrow rectangular strips 30 feet wide and running approximately 480 feet south from the edge of Back Street to the low water mark of the river. Rosedew Park is approximately 80 feet wide and 480 feet long. Rosso Corsa claims only the outermost 20 feet on each side of Rosedew Park because in 1955, Phillip L. Falligant deeded to Chatham County a right-of-way to the middle 40 feet for an extension of Coffee Bluff Road, and the City of Savannah has since annexed the property.
It is undisputed that the 1887 plat is referred to in subsequent deeds to various lots in the Falligant Subdivision, including Rosso Corsa's deed from the trustee. There is also evidence that, while the park was originally intended exclusively for Rosedew residents, the general public has used the bluff and beach for recreational purposes, at least since the 1920's. Either the county or the city once built a boat ramp at the water's edge, but since at least 1976 that ramp was condemned and access to it blocked by a fence. Only remnants of the paving for the extension of Coffee Bluff Road remain. Since 1972, a chain-link fence along the northern portion blocks all entrance to the property except an opening to a privately operated marina, erected by Rosso Corsa's predecessor in title. The property is not posted as a public park, nor maintained by any local government.
2. Rosso Corsa enumerates the trial court's conclusion that the MRS acquired a prescriptive easement in Park Place East and the eastern portion of Rosedew Park, arguing that all possession and use were permissive.
It is quite true that permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice are given to the other party.13 Pretermitting whether any material fact questions exist under this assignment of error,14 we nevertheless affirm the grant of summary judgment to MRS because the express parol license Mrs. Falligant granted MRS subsequently became an easement due to the expenses MRS incurred. 15
It is undisputed that in 1960 Mrs. Falligant "graciously agreed to permit ..." MRS to conduct its marine rescue operations from her riverfront property and to erect a gear shack identified in a building plan so long as her property taxes would not be increased and her tenant would not be disturbed. That same year, MRS built the envisioned one-story concrete block gear shack of approximately 900...
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