Westbrook v. Comer
| Decision Date | 08 March 1944 |
| Docket Number | 14796. |
| Citation | 29 S.E.2d 574,197 Ga. 433 |
| Parties | WESTBROOK et al. v. COMER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. If an owner of a tract of land makes a subdivision of the south portion thereof and divides it into lots and an alley running between such subdivision and the north portion of the tract, records a plat thereof, and conveys the lots by reference to the plat which shows the lots as abutting the particular alley, the grantee in virtue of the grant will acquire a private easement in the alley as appurtenant to the land for the purpose of ingress and egress to and from the lots; and this principle applies whether the alley extends from one street to another or is a cul de sac extending only from one street to a terminus at the line of a given lot in the subdivision.
2. Where a deed or grant refers to a plat as furnishing the description of the land conveyed, the plat itself and the words and marks on it are as much a part of the grant or deed, and control, so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself.
3. In such circumstances it is not essential to the acquisition of such easement by purchasers of lots that there was a dedication of the alley to public use and acceptance by the public, evidenced by its use.
4. As to the acquirement of an easement, a distinction is to be drawn where the maker of the plat has parted with title to the alley, or servient fee, at the time he executes a deed to land to which such alley is contiguous. The implied grant of an easement is dependent upon the grantor's ownership of the servient fee, and when he conveys the alley to another after the plat has been recorded, such deed of record is notice to the world that thenceforth he is in no position to create an easement in the alley as against such grantee although as between him and a subsequent grantee of a contiguous lot he is estopped by his deed from contesting with such grantee the latter's right to use the alley.
5. Where a right of way or other easement is created by grant deed, or reservation, no duty is thereby cast upon the owner of the dominant estate thus created to make use thereof or enjoy the same as a condition to the right to retain his interest therein, and the mere nonuser of such an easement for a period however long will not amount to an abandonment. The mere fact that one does not immediately begin to exercise his right of use under an easement, or that he delays doing so for a number of years, would not occasion a loss of the easement. His right being complete, he could not be deprived thereof except by express abandonment, or by such conduct as would be tantamount to the same.
6. While an injunction will not be granted where the main purpose is to require affirmative action, an order may be granted the essential nature of which is to restrain although in submitting to the restraint the defendant may incidentally be compelled to perform some act.
(a) The fact that to prevent obstruction of an alley, as required by an order of court, a defendant would incidentally be obliged to remove a fence which he had erected across the alley, would not make the injunction mandatory in nature.
7. Under the agreed statement of facts and the principles of law applicable thereto, only one of the petitioners had acquired an easement in the alley which it was alleged the defendants were preventing the petitioners from using; and the judgment enjoining the defendants from preventing use of the alley by all of the petitioners must, under the direction being given by this court, be modified so as to exclude the other three petitioners from the benefits of the injunction.
8. The evidence failed to show any forfeiture of easement by nonuser on the part of the prevailing petitioner.
Statement of Facts by DUCKWORTH, Justice:
Mrs. G. C. C.omer, Mrs. Minnie L. Flournoy, Elaine Hammond, and R. C. Holleman, filed an equitable petition against W. L. Westbrook, Virgil Cox, and Marjorie Cargill Petri, to enjoin them from interfering with the petitioners' use of a certain alley in the City of Columbus. Under an agreed statement of facts the case was submitted to the judge without a jury. For a proper consideration of the merits, the following summary of the facts will suffice.
On July 1, 1893, William A. Little was the owner of a tract of land near Columbus, Muscogee County, Georgia. Out of this tract two subdivisions, a plat of which is a part of the record, were subsequently carved, as will hereinafter appear. Between them is a strip of land which is referred to as a 20-foot alley, and which is the subject matter of this litigation. On July 1, 1893, Little, still the owner, made a subdivision of the south portion of the parent tract and recorded, in the office of the clerk of the superior court of Muscogee County, a map or plat showing such subdivision as Little's Wynnton Survey. This map or plat showed the north boundary of the survey as being the north boundary of the 20-foot alley running east and west the full width of the survey, which survey was bounded on the east by Eighteenth Avenue and on the west by Sixteenth Avenue. When Little sold off lots from this survey, the title to which is now held by the petitioners, except as to the south portion of lot 14, they were sold with reference to the recorded map or plat, and all deeds, which were duly recorded, from him and successive conveyances from those claiming under him, duly recorded, conveyed the lots 'with all and singular the rights, members and appurtenances thereof to the same in any manner belonging.' Mrs. G. C. Comer, the owner of lot 11, Elaine Hammond, the owner of lot 13, and R. O. Holleman, the owner of the northern portion of lot 14, did not acquire title to the lots in Wynnton Survey until February 15, 1918, October 10, 1941, and July 12, 1938, respectively, and no title to any of the lots now owned by them passed from Little to any predecessor in title or to any of these three before March 5, 1901.
On June 20, 1899, Little and others deeded from the parent tract to C. W. Munro certain land from which Boulevard Terrace, north of the 20-foot alley, was carved by H. Land, a remote grantee of Munro. The deed from Little and others to Munro recited that the south line of the land conveyed was the north line of four certain lots (in Little's Wynnton Survey) which adjoined the 20-foot alley here involved. Little warranted title to all the land except the portion embraced in the alley. On August 18, 1911, Munro conveyed to Thomas L. Walters the land now comprising Boulevard Terrace, north of the alley, but restricted the south line to the north line of the alley. On August 18, 1923, the executrix of Walters conveyed to B. E. Wiggers by the identical description. On August 27, 1924, Wiggers conveyed to H. Land by the identical description. The defendants, W. L. Westbrook, Virgil Cox, and Marjorie Cargill Petri, own three of the lots in Boulevard Terrace, the subdivision made by H. Land out of the land originally conveyed to Munro; and each lot was sold by Land with reference to a recorded map or plat of such subdivision filed by him on July 8, 1927, and the 20-foot alley was designated as 'existing street twenty feet.' When H. Land sold to the defendants their respective lots in Boulevard Terrace with reference to his recorded map or plat, which showed the south boundary of that subdivision to be the north boundary of the 20-foot alley, he also executed to the respective grantees a quitclaim deed to that portion of the alley south of the conveyed lot and between imaginary prolongations of lines representing the eastern and western boundaries of the respective lots. After acquiring the lots from Land, the grantees respectively executed certain security deeds to named parties, but excluded from the conveyances the land embraced in the 20-foot alley.
Although the alley was disignated on the map or plat of Boulevard Terrace as an 'existing street twenty feet,' and also appears on maps of the city of Columbus in general use by the public as an existing street or alley, it has never been in actual use by the public or actually opened, worked, and adopted by the City of Columbus, and has remained in the possession of the owners of the land contiguous to same from the time it was laid off by Little as an alley on July 1, 1893. The alley has been used as a private alley by Mrs. Minnie L. Flournoy, one of the petitioners, in connection with her possession of lot 12 of Little's Wynnton Survey. The alley has been used as a private alley by R. O. Holleman in connection with his possession of lot D of the subdivision of lot 14 of Little's Wynnton Survey.
After the defendants acquired said lots in Boulevard Terrace, they erected and installed immediately south of their lots fences across the 20-foot alley between Boulevard Terrace and Little's Wynnton Survey. Said fences extend across the alley and along the south line of the same. The eastern and western lines of each of said fences are prolongations of the eastern and western lines of each of the aforesaid lots of the said defendants. The fences so erected and maintained incorporate into each of the lots of each of the defendants all of the alley south of each of the defendants' lots as the fences are erected on the eastern and western sides of the prolongations of the eastern and western lines of each of the defendants' lots, and also run along the south line of the alley between the prolongations. The fences prevent the petitioners from using the alley by foot or vehicle. The defendants are using that part of the alley, which he or she has fenced off, for gardens and the planting of shrubbery therein, and thereby prevent the use...
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