FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
February 27, 2026
In the Court of Appeals of Georgia A26A0141. MARKS v. CATES.
BARNES, Presiding Judge.
We granted the application of defendant Alexander Marks for interlocutory
review of the trial court’s denial of summary judgment concerning his claimed
easement as to a driveway built by his predecessors in 1987. The estate of the abutting
landowner, now the Cates family, brought this action for trespass in 2023. On appeal,
Marks argues that the trial court erred in denying him summary judgment because
undisputed evidence established his right to the driveway as a private way by
prescriptive easement. We agree and reverse.
[A] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and
punctuation omitted). “In our de novo review of the grant of a motion for summary
judgment, we must view the evidence, and all reasonable inferences drawn therefrom,
in the light most favorable to the nonmovant.” Id. at 624 (1) (a) (citation and
punctuation omitted).
Thus viewed in Cates’s favor, the record shows that in in 1979, Marks’s
predecessor, the Beatty family, bought a 5-acre tract of land abutting the 35-foot strip
of land at issue, which was the property of G. E. “Buddy” Monk. The Beattys built
an east-west driveway on the strip in approximately 1987, and completed a house on
their property in 1990. From 1979 to 1992, the large tract to the east of the Beattys’
property was also owned by Monk. During this period, Monk often visited the Beattys
and never objected to the driveway or the Beattys’ use of it. Monks died in 1992, and
his daughter Sherry Cates became the executor of his estate. In 1997 or 1998, the
Beattys built a carport near the eastern end of the driveway.
2 Jerry Beatty died in 2008. Shortly after her husband’s death, Betty Jean Beatty
found Sherry’s husband Steve Cates on the driveway inspecting the carport. When
Betty Jean asked what he was doing, Steve said that he planned to move the carport
so that he could log the Monk property. Betty Jean told him that he could not move
the carport and that he should leave her alone.
Nothing further was heard from the Cateses until September 2023, more than
four years after Alexander Marks bought the property from Betty Jean Beatty, when
Sherry Cates filed this trespass action. Marks counterclaimed for a declaration of his
right to the driveway by adverse possession and prescriptive easement. In February
2024, Marks moved for partial summary judgment on his adverse possession
counterclaim. In March 2024, Marks filed a second motion for partial summary
judgment as to prescriptive easement of a private way and as to his defense of laches.
The Cateses responded to Marks’s first motion with evidence including five
affidavits purporting to show that the Beattys’ use of the driveway had been merely
permissive. Two of the affidavits were by Sherry and Steve Cates; the remaining three
are identical except for the names of the signatories. Steve Cates testified that he had
used the driveway “to prevent trespassers and vandalism and [for] hunting
3 purposes,” that he had never been informed that the Beattys claimed ownership of it,
and that Betty Jean “did not object” to his assertion of right over the property. Steve
admitted, however, that Monks had “allow[ed] the Baty’s [sic] to temporarily use [the
driveway strip] for a carport.” The remaining three affidavits averred that each
witness had seen “Jerry [Beatty] coming to the office of PKW Building Suppply [sic]”
to deliver office supplies, “at which time [Beatty] freely and voluntarily admitted that
he was using the [driveway] with the consent of . . . Monk and [that] he would be
required to return the use of this property when [Monk] requested him to do so.”
None of the three affidavits state where PKW Building Supply is, whether each
witness was a worker or a customer there, or why Beatty would have been talking
about his driveway with them. Marks moved to strike the affidavits as impermissible
hearsay, notwithstanding Monks’s death.
After a hearing, the trial court filed two orders. The first denied Marks’s first
motion for summary judgment on the ground that questions of fact remained as to his
adverse possession claim. The second denied Marks’s second motion for summary
judgment, finding that questions of fact remained as to whether the Beattys’ use of the
property was permissive and thus whether laches barred Cates’s claim. The trial court
4 did not specifically rule, however, on Marks’s claim for a prescriptive easement,
finding only that “multiple issues of material fact” remained. The trial court granted
a certificate of immediate review, and we granted Marks’s application for
interlocutory review.
Marks’s application raised a question only as to the trial court’s holding as to
a prescriptive easement. Likewise, his brief on appeal asserts error only as to this issue,
arguing that undisputed evidence shows that he obtained a prescriptive easement as
to the driveway.
Under Georgia statutory law, “[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.” OCGA
§ 44-9-54. See also OCGA § 44-9-1. To obtain a prescriptive easement providing
ingress and egress to his or her property over the land of another, a property owner
must show that: (1) he or she used the easement without interruption for at least seven
years; (2) the width of the easement does not exceed 20 feet; (3) the width and path
of the easement never varied over the prescription period; and (4) the landowner kept
the easement open and in good repair during the prescription period. See McGregor
5 v. River Pond Farm, LLC, 312 Ga. App. 652, 654 (2) (719 SE2d 546) (2011); Revocable
Trust of Timothy W. Griffin v. Timberlands Holding Co. Atlantic, 328 Ga. App. 33, 37
(2) (761 SE2d 458) (2014). Moreover, the use of the easement must be of such a
nature that the property owner is put on notice that the user intends to appropriate the
land on which the easement sits as his own. See Douglas v. Knox, 232 Ga. App. 551,
552-553 (2) (502 SE2d 490) (1998). Generally, this notice requirement is satisfied
where the user maintains and makes any repairs necessary to facilitate the easement’s
use. See Griffin, 328 Ga. App. at 38 (3) (“the gist of the requirement as to repairs [and
maintenance] is not so much the repairs [and maintenance] as the notice which is
given by the [same]”) (citation, punctuation and emphasis omitted).
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FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
February 27, 2026
In the Court of Appeals of Georgia A26A0141. MARKS v. CATES.
BARNES, Presiding Judge.
We granted the application of defendant Alexander Marks for interlocutory
review of the trial court’s denial of summary judgment concerning his claimed
easement as to a driveway built by his predecessors in 1987. The estate of the abutting
landowner, now the Cates family, brought this action for trespass in 2023. On appeal,
Marks argues that the trial court erred in denying him summary judgment because
undisputed evidence established his right to the driveway as a private way by
prescriptive easement. We agree and reverse.
[A] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and
punctuation omitted). “In our de novo review of the grant of a motion for summary
judgment, we must view the evidence, and all reasonable inferences drawn therefrom,
in the light most favorable to the nonmovant.” Id. at 624 (1) (a) (citation and
punctuation omitted).
Thus viewed in Cates’s favor, the record shows that in in 1979, Marks’s
predecessor, the Beatty family, bought a 5-acre tract of land abutting the 35-foot strip
of land at issue, which was the property of G. E. “Buddy” Monk. The Beattys built
an east-west driveway on the strip in approximately 1987, and completed a house on
their property in 1990. From 1979 to 1992, the large tract to the east of the Beattys’
property was also owned by Monk. During this period, Monk often visited the Beattys
and never objected to the driveway or the Beattys’ use of it. Monks died in 1992, and
his daughter Sherry Cates became the executor of his estate. In 1997 or 1998, the
Beattys built a carport near the eastern end of the driveway.
2 Jerry Beatty died in 2008. Shortly after her husband’s death, Betty Jean Beatty
found Sherry’s husband Steve Cates on the driveway inspecting the carport. When
Betty Jean asked what he was doing, Steve said that he planned to move the carport
so that he could log the Monk property. Betty Jean told him that he could not move
the carport and that he should leave her alone.
Nothing further was heard from the Cateses until September 2023, more than
four years after Alexander Marks bought the property from Betty Jean Beatty, when
Sherry Cates filed this trespass action. Marks counterclaimed for a declaration of his
right to the driveway by adverse possession and prescriptive easement. In February
2024, Marks moved for partial summary judgment on his adverse possession
counterclaim. In March 2024, Marks filed a second motion for partial summary
judgment as to prescriptive easement of a private way and as to his defense of laches.
The Cateses responded to Marks’s first motion with evidence including five
affidavits purporting to show that the Beattys’ use of the driveway had been merely
permissive. Two of the affidavits were by Sherry and Steve Cates; the remaining three
are identical except for the names of the signatories. Steve Cates testified that he had
used the driveway “to prevent trespassers and vandalism and [for] hunting
3 purposes,” that he had never been informed that the Beattys claimed ownership of it,
and that Betty Jean “did not object” to his assertion of right over the property. Steve
admitted, however, that Monks had “allow[ed] the Baty’s [sic] to temporarily use [the
driveway strip] for a carport.” The remaining three affidavits averred that each
witness had seen “Jerry [Beatty] coming to the office of PKW Building Suppply [sic]”
to deliver office supplies, “at which time [Beatty] freely and voluntarily admitted that
he was using the [driveway] with the consent of . . . Monk and [that] he would be
required to return the use of this property when [Monk] requested him to do so.”
None of the three affidavits state where PKW Building Supply is, whether each
witness was a worker or a customer there, or why Beatty would have been talking
about his driveway with them. Marks moved to strike the affidavits as impermissible
hearsay, notwithstanding Monks’s death.
After a hearing, the trial court filed two orders. The first denied Marks’s first
motion for summary judgment on the ground that questions of fact remained as to his
adverse possession claim. The second denied Marks’s second motion for summary
judgment, finding that questions of fact remained as to whether the Beattys’ use of the
property was permissive and thus whether laches barred Cates’s claim. The trial court
4 did not specifically rule, however, on Marks’s claim for a prescriptive easement,
finding only that “multiple issues of material fact” remained. The trial court granted
a certificate of immediate review, and we granted Marks’s application for
interlocutory review.
Marks’s application raised a question only as to the trial court’s holding as to
a prescriptive easement. Likewise, his brief on appeal asserts error only as to this issue,
arguing that undisputed evidence shows that he obtained a prescriptive easement as
to the driveway.
Under Georgia statutory law, “[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.” OCGA
§ 44-9-54. See also OCGA § 44-9-1. To obtain a prescriptive easement providing
ingress and egress to his or her property over the land of another, a property owner
must show that: (1) he or she used the easement without interruption for at least seven
years; (2) the width of the easement does not exceed 20 feet; (3) the width and path
of the easement never varied over the prescription period; and (4) the landowner kept
the easement open and in good repair during the prescription period. See McGregor
5 v. River Pond Farm, LLC, 312 Ga. App. 652, 654 (2) (719 SE2d 546) (2011); Revocable
Trust of Timothy W. Griffin v. Timberlands Holding Co. Atlantic, 328 Ga. App. 33, 37
(2) (761 SE2d 458) (2014). Moreover, the use of the easement must be of such a
nature that the property owner is put on notice that the user intends to appropriate the
land on which the easement sits as his own. See Douglas v. Knox, 232 Ga. App. 551,
552-553 (2) (502 SE2d 490) (1998). Generally, this notice requirement is satisfied
where the user maintains and makes any repairs necessary to facilitate the easement’s
use. See Griffin, 328 Ga. App. at 38 (3) (“the gist of the requirement as to repairs [and
maintenance] is not so much the repairs [and maintenance] as the notice which is
given by the [same]”) (citation, punctuation and emphasis omitted). Finally,
successive possessions may be tacked together to meet the required prescriptive
period. OCGA § 44-5-172; see Pineda v. Lewis, 369 Ga. App. 346, 348 (1) (893 SE2d
512) (2023).
Here, the uncontroverted evidence showed that Marks acquired a prescriptive
easement by private way over the driveway. The driveway is used to access the
Beatty/Marks property from a public roadway; it was used exclusively and
continuously by the owners of that property for 36 years without objection from Monk
6 or his heirs; the driveway’s path and width has remained unaltered since it was first
established in 1987; the width of the driveway has never exceeded 20 feet; the Beattys
improved the driveway by clearing, grading, and paving it; and since 1987, the
driveway has been improved, repaired and/or maintained continuously by the owners
of the Beatty/Marks property. Moreover, although Cates presented some evidence
that the Beattys’ use of the driveway was permissive, that evidence showed only that
permission was given, if at all, by Buddy Monk. Any permissive use would have ended
at the time of Monk’s death in April 1992, at which point prescriptive use would have
begun.
In addition, undisputed evidence showed that in the five to six years following
Monk’s death, the Beattys erected a carport on the eastern end of the driveway, and
they also maintained part of their garden on the unpaved portion of the eastern end.
Both the carport and the garden were in a location that arguably interfered with access
between Monk’s property and the driveway. Despite the erection of the carport,
however, and though its presence arguably exceeded the alleged permissive use of the
property, no representative of Monk’s estate objected to this use until 2008 — more
than a decade after the carport was erected. At that time, Steve Cates told Betty Jean
7 Beatty that the carport would need to be moved to allow access for logging trucks
coming from the Monk property. Betty Jean, however, refused to allow the carport to
be moved and she told Steve “to leave her alone.” For the next 15 years, moreover,
no one from the Monk estate attempted to interfere with Beatty’s or Marks’s
possession and use of the driveway.
While some cases hold that permissive use is insufficient to establish a
prescriptive easement, those cases involve the permissive use of or repairs to an
existing roadway. See Pineda, 369 Ga. App. at 349-350 (1) (no prescriptive easement
established where evidence showed that use of an existing driveway was done with the
express permission of the property owner); McGregor, 312 Ga. App. at 655 (“when
performed with permission of the landowner, . . . repairs to [an existing] road are
insufficient, standing alone, to provide notice of adverse use”). See also Keng, 267 Ga.
at 472 (prescriptive easement established where evidence showed that property owner
claiming the easement used the driveway in question continuously, refused to allow
its removal, and repaired a considerable portion thereof; these “actions were sufficient
to place [the owners of the property on which the easement was situated] and their
8 predecessor in title on notice of [the claimant’s] adverse claim to the driveway and
initiate the running of the prescriptive period”).
Here, by contrast, the Beattys did not avail themselves of an existing roadway
on the Monk property. Instead, they were granted use of the property by Monks, built
the driveway, and maintained it in good repair. Further, and more than 20 years after
building the driveway, the Beattys established a portion of their garden and a carport
structure on the end of the driveway closest to the Monk property, thereby hindering
access to their driveway from that property. Given these undisputed facts, the Monk
heirs had more than seven years’ notice that the Beattys were claiming use of the
property on which the driveway was situated.
Because undisputed evidence shows that Beatty and Marks gained a private
right of way over the driveway by prescriptive easement, the trial court erred when it
denied Marks summary judgment on this question.
Judgment reversed. Markle and Hodges, JJ., concur.