Norton v. Holcomb
Norton v. Holcomb
Opinion of the Court
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;
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
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
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].
Arelated 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.
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
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.
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.
Norton tendered several affidavits in opposition to Holcomb’s motion. Josh Fitts, a resident of the area for over 80 years, averred
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, including but not limited to myself and the prior owners and their representatives. . . . [T]his road had existed and been in continuous use as the access road to the property for all of my lifetime.
(Emphasis in original.) During his deposition, Norton also produced aerial maps from over the last 50 years depicting the roadway in question.
In examining Norton’s evidence, we draw reasonable inferences from the admissible evidence after discounting the conclusory assertions contained therein.
Title by prescription requires notice to the owner of the servient property that the use of the roadway is adverse to the title of the servient estate. Building a road across the lands of another may be the strongest possible example of constructive notice to the owner of those lands that the builder is asserting a claim of right and is taking action adverse to the owner’s title and interests.
But there is no evidence of any use by the Marble Company prior to 1938 or between 1938 and 1957. Nor is there any evidence that the Marble Company or U. S. Pipe Realty, Inc., used the road between 1957 and 2003, when Norton purchased his property. Evidence via the aerial photographs that someone used the road cannot be elevated to proof that the Marble Company used the road. Patsy Daniel, a lifelong resident of the area said that she used the road “on her way to pick crabapples and muscadines” on the Marble Company property. Such a traverse would seem to be a lark and frolic of her own. The testimony by Bud Duncan, that his father used the road to access the Marble Company’s property and the testimony by Tom Daniel that the road was “always” used to get into its property, both lack any assertion that the Marble Company was using the road. The road, i.e., the gap in the trees shown in the aerial photographs, could have been kept open by hunters, loggers, or by Holcomb’s predecessors in
The record is silent as to the Marble Company’s use of the allegedly dominant property, and we will not speculate on it. Norton’s brief describes the parcel as “rugged mountain land.” By contrast, for example, in Anneberg v. Kurtz,
Because the record contains no evidence that the Marble Company or its agents used the road continuously for at least twenty years, it did not acquire a private way by prescription and Norton has no private way by prescription over Holcomb’s land.
3. Norton contends the evidence was insufficient to support a finding that his trespass on Holcomb’s land was intentional. Rather, Norton claims his trespass was innocent because he believed the road had been used continuously by the Marble Company and its representatives. Norton also disputes the trial court’s finding that he changed the character of the road instead of merely clearing the roadbed.
The burden is on Norton to show that his trespass was innocent.
A wilful trespasser can be defined in general terms as one who knows that he is wrong, while an innocent trespasser is one who believes that he is right. The question as to whether the trespass was wilfully or innocently done is generally for*85 the jury to determine, except in those cases where the trespasser acts with such entire want of care and reckless indifference as would clearly amount to a disregard of the rights of the other party.22
Notwithstanding the condition of the road, the evidence clearly shows that Norton was not an innocent trespasser. It is undisputed that Norton directed GMFS to clear the roadbed and cut timber on Holcomb’s property knowing that he did not have a written easement or permission from Holcomb to access her property. It is also undisputed that on or about June 11, 2004, Norton directed GMFS to remove newly erected barbed wire and a no trespassing sign across the roadbed.
As we ruled in Division 2, Norton’s belief that the road was used “continuously” by the Marble Company was not the evidence needed to prove that the Marble Company had acquired a private way.
Because trespass is an intentional tort, Holcomb is entitled at least to nominal damages.
4. Norton contends that the trial court erred in granting summary judgment to Holcomb on his counterclaims. The trial court ruled as follows:
Additionally, [Norton’s] counterclaim, denominated as an action to quiet title, does not present a question of fact that must be resolved by a jury. A plaintiff in an action to quiet title must assert that he holds some current record title or current prescriptive title, not only an expectancy, in order to maintain his suit.... For the reasons stated above, [Norton] has failed to establish by the evidence of record that he has a meritorious claim of prescriptive title, and has admitted that he had no title of record. Accordingly, [Holcomb’s] Motion for Summary Judgment against [Norton’s] Counterclaim is hereby GRANTED.
Norton contends that the trial court erred in granting summary judgment on his claim to quiet title because he acquired an easement by prescription. In light of our ruling in Division 2, this argument is meritless and the trial court correctly granted summary judgment to Holcomb on this claim.
5. Norton next contends that the trial court erred in denying his motion to transfer the case to Pickens County because this case concerns title to land in that county. We disagree.
A suit involving title to land shall be brought in the county where the land lies.
6. Norton further contends that the trial court erred in finding that the prescriptive rights of a grantor over servient, adjacent land do not pass with title unless specifically mentioned in the deed. The precedent cited by the trial court, Olsen v. Noble,
7. The case is still pending in the court below. Although the trial court granted summary judgment to Holcomb as to Norton’s liability on the trespass claim, damages must still be determined. Moreover, the trial court did not address Norton’s counterclaims for wrongful obstruction of a private way and for condemnation of such a way. Though Norton’s wrongful obstruction claim is moot in light of our rulings above, his claim for condemnation is not. Accordingly, after Holcomb’s claim for damages has been finally resolved, the trial court should dismiss the claim for condemnation of a private way, without prejudice to Norton’s right to begin or continue litigation on that claim in the Superior Court of Pickens County.
8. The record shows positively that the road has existed since at least 1938. But the law requires continuous use by the claimant, Norton, or his predecessors in interest, for twenty years. The dissent relies heavily upon Norton’s own affidavit in which he testifies that he lived in the area and personally knows of “continuous use” by the Marble Company “and its representatives” for all of his life.
If Norton’s affidavit is not discounted as being conclusory then very few affidavits will be discounted as being conclusory. There is no substantiating detail. Did the Marble Company use the road for one week every ten years to remove timber from its land? Did it use the road once each year to get in and check its property lines? Norton himself has used the road only since 2003.
We cannot rule as a matter of law that the Marble Company’s use was continuous, because the record does not reveal what that use was. A claimant who seeks land by adverse possession, when faced by
Judgment affirmed in part and case remanded with direction.
See OCGA§ 44-9-40.
Hobbs v. Lovelady, 272 Ga. App. 111, 112 (611 SE2d 661) (2005), citing OCGA § 9-11-56 (c) and Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
Norton deposed that he was unaware of any surveys after 1979 that show a roadway running to the property across Holcomb’s property. Additionally, Norton acknowledged that he purchased the property without exploring options for obtaining access to it.
See, e.g., Jackson v. Norfolk Southern R., 255 Ga. App. 695 (566 SE2d 415) (2002); Stover v. Tipton, 252 Ga. App. 427, 428 (555 SE2d 151) (2001); Trammell v. Whetstone, 250 Ga. App. 503, 505 (1) (552 SE2d 485) (2001); Lopez v. Walker, 250 Ga. App. 706, 707 (1) (551 SE2d 745) (2001); Jackson v. Stone, 210 Ga. App. 465, 467 (2) (436 SE2d 673) (1993).
Watkins v. Country Club, 120 Ga. 45 (47 SE 538) (1904), cited with approval in First Christian Church v. Realty Investment Co., 180 Ga. 35, 38 (178 SE 303) (1934).
Watkins, supra at 49. See Gill v. Prehistoric Ponds, 280 Ga. App. 629, 632 (2) (634 SE2d 769) (2006) (“It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together”) (punctuation and footnote omitted).
Moody v. Degges, 258 Ga. App. 135, 137 (573 SE2d 93) (2002), citingOCGA§ 44-5-161. See also Childs v. Sammons, 272 Ga. 737, 739 (2) (534 SE2d 409) (2000).
(Footnote omitted.) Moody, supra.
See id. Though Moody states that the prescriber must show uninterrupted use for seven years, as we established in Division 1, the proper prescriptive period in this case is twenty years.
See BMH Real Estate Partnership v. Montgomery, 246 Ga. App. 301, 304 (3) (540 SE2d 256) (2000).
(Footnotes omitted.) Moody, supra.
Roylston v. Conway, 251 Ga. App. 648, 653 (2) (555 SE2d 28) (2001).
Mitchell v. Haygood’s Hauling & Grading, 194 Ga. App. 671, 672 (1) (391 SE2d 481) (1990).
Keene v. Herstam, 225 Ga. App. 115, 117 (1) (483 SE2d 335) (1997) (“an affidavit which is conclusory and is unsupported hy substantiating fact or circumstances is insufficient to raise a genuine issue of material fact”) (citation omitted).
Our use of “built” is giving the claimant the benefit of every inference. The record is silent as to the nature of the roadway. We do not know whether making it required excavation and grading or merely clearing trees so that horses and wagons could get through.
See generally Roylston, supra, citing Fraser v. Dolvin, 199 Ga. 638, 642 (34 SE2d 875) (1945); Chancey v. Ga. Power Co., 238 Ga. 397, 398 (1) (233 SE2d 365) (1977).
197 Ga. 188 (28 SE2d 769) (1944).
Id. at 192 (1).
Supra.
Id. at 301. See also, e.g., Anneberg, supra; Lee v. Collins, 249 Ga. App. 674, 677 (3) (547 SE2d 583) (2001) (claimant and his guests used road on weekends for ten years).
Young v. Faulkner, 228 Ga. App. 587, 588 (492 SE2d 331) (1997); Autry v. Adams, 95 Ga. App. 207, 209 (97 SE2d 585) (1957); Santiago v. Cauley, 2005 U. S. Dist. LEXIS 34768 (II) (S.D.Ga. 2005). See generally Black v. Ga. Power Co., 151 Ga. App. 727 (261 SE2d 461) (1979) (punitive damages authorized where utility, which was under a mistaken belief that it owned an easement - and advice of its counsel - bulldozed trees on plaintiff s property after being told not to enter).
(Citation and punctuation omitted.) Young, supra.
Id. (summary judgment authorized when trespasser had notice that his belief in his ownership may have been unsound); Groves v. City of Atlanta, 213 Ga. App. 455, 456-457 (1) (444 SE2d 809) (1994) (summary judgment for defendant affirmed when evidence clear that trespass was innocent). But cf. Nichols v. Ga. Television Co., 250 Ga. App. 789, 790 (1) (552 SE2d 550) (2001) (summary judgment for defendant not authorized when reasonableness of belief not clear); Santiago, supra (summary judgment for defendant not authorized; burden on defendant to show his innocence).
See Eileen B. White & Assoc. v. Gunnells, 263 Ga. 360, 362 (434 SE2d 477) (1993) (“[u]se alone is insufficient to acquire prescriptive title”), quoting Cox v. Zucker, 214 Ga. 44, 52 (4) (102 SE2d 580) (1958). See also Puryear v. Clements, 53 Ga. 232, 234 (1) (1874) (evidence must show “constant and uninterrupted use") (emphasis in original); Dunaway v. Windsor, 197 Ga. 705, 710 (30 SE2d 627) (1944) (“[t]he mere fact that the public uses the property of a private individual is not necessarily inconsistent with the retention of dominion by the owner”) (punctuation omitted).
Young, supra. But see Sims v. Majors, 178 Ga. App. 679-680 (1)-(2) (344 SE2d 501) (1986) (liability determined on summary judgment; issues of intent and damages reserved for jury). See generally C. Adams, Georgia Law of Torts, § 2-5 (Trespass to Realty) (2007); Pindar’s Georgia Real Estate Law and Procedure with Forms, § 1-10 (Right to Exclude) (2007).
Williams v. Harris, 207 Ga. 576, 579 (2) (63 SE2d 386) (1951). Accord Page v. Braddy, 255 Ga. App. 124 (564 SE2d 538) (2002).
262 Ga. App. 659 (586 SE2d 364) (2003). See generally OCGA § 51-12-2 and cases cited therein; Georgia Law of Damages with Forms, § 27-3 (Damages for Trespass) (2007). But see Brown v. Smith, 2007 Md. App. LEXIS 44 (2007).
Ga. Const, of 1983, Art. VI, Sec. II, Par. II. Compare Ga. Const, of 1983, Art. VI, Sec. II, Par. VI, which provides generally that a civil case shall be tried in the county where the defendant resides.
Anderson v. Black, 191 Ga. 627, 631 (13 SE2d 650) (1941) (“[i]f an action be one for trespass to realty, and not one to recover possession of the land, ownership of the land is only incidentally involved, and the fact that the land may be situated in another county will not deny jurisdiction to determine the main controversy, even though it depends upon the contested ownership of the realty”) (citation omitted).
See id. Compare Hayes v. Howell, 251 Ga. 580, 581-582 (1) (308 SE2d 170) (1983) (in action against mineral owner for declaratory judgment, claiming ownership of certain mineral
209 Ga. 899 (76 SE2d 775) (1953).
Id. at 906 (1).
Dissenting Opinion
dissenting.
I respectfully dissent. The majority opinion concludes that Norton tendered “insufficient” evidence to support a finding that the road running through Holcomb’s property was used continuously by the Marble Company for 20 years so as to entitle him to a prescriptive easement as the successor in interest of the Marble Company. I disagree.
As set forth in the majority opinion, Norton’s own 2006 affidavit sets forth (1) that Norton (who was 55, having been born in 1951) grew up and lived his entire life near the properties in question, thus establishing his personal knowledge of the use of the roadway in question; (2) that he was very familiar with the roadway in question; (3) that he “personally knew that this Marble Company Road had always been used as the means of access to such land”; (4) that based on his personal observations, the Marble Company and its representatives had continually used the roadway as the access road to the property until it was sold to him in 2003; and (5) that since his purchase, he had so used the roadway himself on a continuous basis. Norton also produced aerial maps showing the markings of the roadway over 50 years to back up his testimony. Thus, we have direct evidence that the road was continuously used for over 20 years by the Marble Company and its representatives (and then by the successor-in-interest Norton), and thus an issue of fact was created as to this matter.
I disagree with the majority’s discounting this concise testimony as conclusory and unsupported by substantiating fact or circumstances. It is true that, as stated in Keene v. Herstam,
Significantly, when Holcomb took Norton’s deposition, Holcomb carefully avoided asking for the specifics of Norton’s observations. See McLean, supra (“True, he might, when questioned, go into greater detail, and it is the power of the other side to push the inquiry into those details”). We should hardly reward Holcomb for her coyness by now saying that insufficient specifics have been identified to substantiate Norton’s clear testimony.
The question therefore is whether we can simply ignore Norton’s testimony of his personal observations of continuous use and the 50-year-old aerial maps which showed such usage. The majority concludes that we can. I disagree. “Affidavit testimony must speak for itself. On summary judgment it is inappropriate for this Court to weigh evidence or determine its credibility.” (Punctuation omitted.) Walden v. Burke.
This is a summary judgment case. We must construe the record, including all inferences, in favor of the nonmovant Norton. In this context, I cannot say that Norton has produced insufficient evidence of continuous use. Accordingly, I dissent.
I am authorized to state that Presiding Judge Andrews and Presiding Judge Smith join in this dissent.
Keene v. Herstam, 225 Ga. App. 115, 117 (1) (483 SE2d 335) (1997).
McLean v. Clark, 47 Ga. 24, 67 (1) (1872).
Walden v. Burke, 282 Ga. App. 154, 156 (2) (637 SE2d 859) (2006).
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