Walker v. Duncan

• Decision Date: 11 February 1976
• Docket Number: No. 30720,30720
• Citation: Walker v. Duncan, 223 S.E.2d 675, 236 Ga. 331 (Ga. 1976)
• Parties: Homer J. WALKER, Jr. v. W. Ray DUNCAN et al.
• Court: Georgia Supreme Court

Page 675

223 S.E.2d 675

236 Ga. 331

Homer J. WALKER, Jr. v.W. Ray DUNCAN et al.

No. 30720.

Supreme Court of Georgia.

Feb. 11, 1976.

Rehearing Denied Feb. 24, 1976.

Byrd, Groover & Buford, Denmark Groover, Jr., Macon, Walker, Clarke, McConnell, Richardson & Moore, L. A. McConnell, Jr., Warner Robins, for appellant.

Adams, O'Neal, Hemingway, Kaplan, Stone & Brown, H. T. O'Neal, Jr., Manley F. Brown, James, Shipp & Wilcox, T. D. Wilcox, Macon, for appellees.

HALL, Justice.

Owners of lots in a subdivision located near a lake sought to enjoin the developer of the subdivision from building a club and condominiums around the lake.The trial court granted partial summary judgment in favor of the plaintiff landowners, and the developer appeals.We affirm.When a developer sells lots according to a subdivision plat, which has a lake area designated on it, the purchasers acquire an irrevocable easement in that park, with which the developer may not interfere.

When Homer Walker, Sr. died in 1947 his land was divided equally among his widow and two sons.They drew and recorded a subdivision plat, but in 1955, they recorded a resubdivision of the original plat.Lots were then sold referring to the newer plat, which included several streets and the lake area designated Tommy Walker Memorial Park.

In 1974, the developer built a large shed, since destroyed by fire, on the northern portion of the lake, and filed a request to rezone the southern half of the lake for condominiums.The subdivision owners notified the developer of their dissatisfaction with the plans, and of their intention to protect their rights.Thereafter, they filed their complaint to enjoin any actions by the developer interfering with their rights in the southern portion of the lake and park as shown on the subdivision plat.They later amended their petition seeking to enjoin the development of the northern portion of the lake area also.

The partial summary judgment granted to the lot owners enjoins the developer from any interference with the rights of the lot owners in the southern portion of the park.It is only this judgment that is now before us on appeal.

It is well-established that where a developer sells lots according to a recorded plat, the grantees acquire an easement in any areas set apart for their use.Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349(1929).An easement acquired in this manner is considered an express grant, and is an irrevocable property right.The rationale is that the grantees of the property have given consideration for its enhanced value in the increased price of their lots.Stanfield v. Brewton, 228 Ga. 92, 184 S.E.2d 352(1971);East...