THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR JUDGE FULLER
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
October 4, 2023
In the Court of Appeals of Georgia A23A0909. PINEDA v. LEWIS et al.
DOYLE, Presiding Judge.
In this dispute between neighbors over the right to a private way, Juana Pineda
appeals from a probate court order1 holding that Venerra and John Lewis are entitled
to a private way over Pineda’s property. Specifically, Pineda argues that (1) the
probate court erred because the Lewises failed to demonstrate that they met the
elements to establish a prescriptive use, and (2) because the probate court failed to
1 Pineda originally appealed the probate court order to the superior court, which properly transferred the case to this Court. See generally OCGA §§ 15-9-120 (b), 15- 9-123 (a) (“Either party to a civil case in the probate court shall have the right of appeal to the Supreme Court or the Court of Appeals from any decision made by the probate court, except an order appointing a temporary administrator or an order appointing an emergency guardian or emergency conservator. . . . ). rule on the trespass claim, the case should be remanded for such a ruling. For the
reasons that follow, we reverse.
This case originated in March 2021 when the Lewises filed a complaint in
superior court against their adjacent landowner, Pineda. The dispute arose because
Pineda allegedly blocked the Lewises from using a shared driveway that runs over
Pineda’s property and between the two houses. The complaint asserted two claims:
one for relief under OCGA § 44-5-592 (pertaining to the removal of obstructions to
private ways) and one for money damages due to roof damage allegedly caused by
tree work done by Pineda. After Pineda filed an answer, the parties agreed to the entry
of a consent order by the superior court transferring the case to the probate court “for
2 OCGA § 44-9-59 (a) provides, in relevant part:
In the event the owner . . . of land over which a private way may pass . . . obstructs, closes up, or otherwise renders the private way unfit for use, the party or parties injured by the obstructions . . . may petition the judge of the probate court. . . to remove the obstructions. . . . If it appears that the private way has been in continuous, uninterrupted use for seven years or more and no steps were taken to prevent the enjoyment of the same, the judge shall grant an order directing the party or parties so obstructing or otherwise interfering with the right of way to remove the obstructions. . . .
2 adjudication of the issue of an obstruction over an alleged private way pursuant to
OCGA § 44-9-59.” The order transferring the case also stated that “all other issues
are reserved until further hearing by the [c]ourt.”
The probate court held a hearing in September 2021, but no transcript appears
in the appellate record. It is undisputed, however, that the probate court had before
it and considered a deposition and affidavit by Steve Morgan, the Lewises’ immediate
predecessor in interest. According to Morgan’s account, which is not materially
disputed by either party, his uncle purchased the Lewises’ property in the 1960’s and
later transferred it to Morgan’s mother, who transferred it to Morgan and his sister
before they transferred it to the Lewises in 2016. During the time Morgan’s uncle
owned the property, Pineda’s property was owned by Sam Elliot. Morgan grew up on
the street and was familiar with his uncle’s house as well as Elliot’s house. During
that time, Elliot permitted Morgan’s uncle to use the driveway as a shared driveway:
“He said just don’t ever block the driveway. He said we’ll just use it and share it.”
Later, sometime in the 1990s, Morgan recalled helping his grandmother put
gravel on the driveway to keep it from washing out. His grandmother asked Elliot for
permission to put the gravel on the driveway, and Elliot said, “[w]ell if you want to
pay for it, it’s fine with me. . . There was always an understanding. There was no
3 bickering.” According to Morgan, Elliot had always permitted them to share the
driveway, and his affidavit states clearly that “[n]ever in my entire life (I am almost
65 years old) has there been any issue with the driveway not being shared or co-
owned. It was just understood that both houses needed access to the driveway[,] and
it was shared. No issue was ever brought up about this during all these years.”
Based on the evidence before it, the probate court issued a single-sentence
order in favor of the Lewises: “The Court finds a private way exists between the
parties’ properties and orders [Pineda] to remove all obstructions from the private
way to allow access to the [Lewises].”
Pineda filed a notice of appeal in the probate court, seeking to appeal its ruling
to the superior court. The superior court initially took the appeal, creating a separate
case number from the initial case filed by the Lewises.3 Following an evidentiary
hearing, the superior court determined that the appeal was properly made to this Court
under OCGA § 15-9-123, which provides that “[e]ither party to a civil case in the
probate court[4] shall have the right of appeal to the Supreme Court or the Court of
3 For this reason, the case before us is not interlocutory; it is a separate appeal apart from the trespass case, which remains in the superior court. 4 In this context, the term “probate court” refers to the probate court in counties populated by more than 90,000 people. See OCGA § 15-9-120. It is undisputed that
4 Appeals from any decision made by the probate court. . . .” Accordingly, without
addressing the appeal, the superior court transferred it to this Court, and it took no
action on the separate case addressing the trespass claim regarding damage to the
Lewises’ roof allegedly caused by Pineda’s tree work. We now address the appeal
transferred to this Court.
1. Pineda contends that the probate court erred because the Lewises did not
establish the elements of a prescriptive easement under OCGA § 44-9-54. Based on
the undisputed evidence that the historical use and improvements to the driveway
have always occurred with the permission of Pineda’s predecessor, we agree.
The right of private way over another’s improved land may arise from prescription by seven years’ uninterrupted use [under] OCGA § 44-9-1.
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THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR JUDGE FULLER
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
October 4, 2023
In the Court of Appeals of Georgia A23A0909. PINEDA v. LEWIS et al.
DOYLE, Presiding Judge.
In this dispute between neighbors over the right to a private way, Juana Pineda
appeals from a probate court order1 holding that Venerra and John Lewis are entitled
to a private way over Pineda’s property. Specifically, Pineda argues that (1) the
probate court erred because the Lewises failed to demonstrate that they met the
elements to establish a prescriptive use, and (2) because the probate court failed to
1 Pineda originally appealed the probate court order to the superior court, which properly transferred the case to this Court. See generally OCGA §§ 15-9-120 (b), 15- 9-123 (a) (“Either party to a civil case in the probate court shall have the right of appeal to the Supreme Court or the Court of Appeals from any decision made by the probate court, except an order appointing a temporary administrator or an order appointing an emergency guardian or emergency conservator. . . . ). rule on the trespass claim, the case should be remanded for such a ruling. For the
reasons that follow, we reverse.
This case originated in March 2021 when the Lewises filed a complaint in
superior court against their adjacent landowner, Pineda. The dispute arose because
Pineda allegedly blocked the Lewises from using a shared driveway that runs over
Pineda’s property and between the two houses. The complaint asserted two claims:
one for relief under OCGA § 44-5-592 (pertaining to the removal of obstructions to
private ways) and one for money damages due to roof damage allegedly caused by
tree work done by Pineda. After Pineda filed an answer, the parties agreed to the entry
of a consent order by the superior court transferring the case to the probate court “for
2 OCGA § 44-9-59 (a) provides, in relevant part:
In the event the owner . . . of land over which a private way may pass . . . obstructs, closes up, or otherwise renders the private way unfit for use, the party or parties injured by the obstructions . . . may petition the judge of the probate court. . . to remove the obstructions. . . . If it appears that the private way has been in continuous, uninterrupted use for seven years or more and no steps were taken to prevent the enjoyment of the same, the judge shall grant an order directing the party or parties so obstructing or otherwise interfering with the right of way to remove the obstructions. . . .
2 adjudication of the issue of an obstruction over an alleged private way pursuant to
OCGA § 44-9-59.” The order transferring the case also stated that “all other issues
are reserved until further hearing by the [c]ourt.”
The probate court held a hearing in September 2021, but no transcript appears
in the appellate record. It is undisputed, however, that the probate court had before
it and considered a deposition and affidavit by Steve Morgan, the Lewises’ immediate
predecessor in interest. According to Morgan’s account, which is not materially
disputed by either party, his uncle purchased the Lewises’ property in the 1960’s and
later transferred it to Morgan’s mother, who transferred it to Morgan and his sister
before they transferred it to the Lewises in 2016. During the time Morgan’s uncle
owned the property, Pineda’s property was owned by Sam Elliot. Morgan grew up on
the street and was familiar with his uncle’s house as well as Elliot’s house. During
that time, Elliot permitted Morgan’s uncle to use the driveway as a shared driveway:
“He said just don’t ever block the driveway. He said we’ll just use it and share it.”
Later, sometime in the 1990s, Morgan recalled helping his grandmother put
gravel on the driveway to keep it from washing out. His grandmother asked Elliot for
permission to put the gravel on the driveway, and Elliot said, “[w]ell if you want to
pay for it, it’s fine with me. . . There was always an understanding. There was no
3 bickering.” According to Morgan, Elliot had always permitted them to share the
driveway, and his affidavit states clearly that “[n]ever in my entire life (I am almost
65 years old) has there been any issue with the driveway not being shared or co-
owned. It was just understood that both houses needed access to the driveway[,] and
it was shared. No issue was ever brought up about this during all these years.”
Based on the evidence before it, the probate court issued a single-sentence
order in favor of the Lewises: “The Court finds a private way exists between the
parties’ properties and orders [Pineda] to remove all obstructions from the private
way to allow access to the [Lewises].”
Pineda filed a notice of appeal in the probate court, seeking to appeal its ruling
to the superior court. The superior court initially took the appeal, creating a separate
case number from the initial case filed by the Lewises.3 Following an evidentiary
hearing, the superior court determined that the appeal was properly made to this Court
under OCGA § 15-9-123, which provides that “[e]ither party to a civil case in the
probate court[4] shall have the right of appeal to the Supreme Court or the Court of
3 For this reason, the case before us is not interlocutory; it is a separate appeal apart from the trespass case, which remains in the superior court. 4 In this context, the term “probate court” refers to the probate court in counties populated by more than 90,000 people. See OCGA § 15-9-120. It is undisputed that
4 Appeals from any decision made by the probate court. . . .” Accordingly, without
addressing the appeal, the superior court transferred it to this Court, and it took no
action on the separate case addressing the trespass claim regarding damage to the
Lewises’ roof allegedly caused by Pineda’s tree work. We now address the appeal
transferred to this Court.
1. Pineda contends that the probate court erred because the Lewises did not
establish the elements of a prescriptive easement under OCGA § 44-9-54. Based on
the undisputed evidence that the historical use and improvements to the driveway
have always occurred with the permission of Pineda’s predecessor, we agree.
The right of private way over another’s improved land may arise from prescription by seven years’ uninterrupted use [under] OCGA § 44-9-1. Where an owner of land over which a private way passes obstructs the private way, the injured party may[, as the Lewises did here,] petition the probate court to remove the obstruction [under] OCGA § 44-9-59 (a). Successive users [such as the Lewises] may tack prescriptive title [under] OCGA § 44-5-172. A private way may not be acquired by prescription where use of the private way is with the
the probate court at issue, Floyd County Probate Court, meets this definition.
5 owner’s permission until an adverse claim is made and actual notice [of the adverse claim] is given to the owner or party in possession.5
Here, there is uncontroverted evidence that the Lewises’ predecessor used the
shared driveway with the explicit permission of Pineda’s predecessor, Elliot. There
was never a dispute about the shared use of the driveway, and Elliot had always
allowed the use of it, including granting explicit permission to improve the driveway
by adding gravel. “Repairs performed with the owner’s permission or by agreement
cannot establish a prescriptive easement.”6 Thus, the undisputed evidence
conclusively establishes that the use of the shared driveway was permissive, not
adverse.7
The Lewises argue that they did not need to demonstrate notice of an adverse
claim, citing OCGA § 44-9-54, which provides that “[w]henever a private way has
been in constant and uninterrupted use for seven or more years and no legal steps
5 (Citations and punctuation omitted.) Douglas v. Knox, 232 Ga. App. 551, 552 (2) (502 SE2d 490) (1998). 6 Wilkes 581 Farms, LLC v. McAvoy, 356 Ga. App. 732, 737 (c) (848 SE2d 905) (2020). 7 The Lewises had owned their property for only 4 years and 11 months before they filed this action. Therefore, they cannot show that their use, if somehow shown to be adverse, satisfied the 7-year use requirement.
6 have been taken to abolish it, it shall not be lawful for anyone to interfere with that
private way.” Based on this language, they contend that they are not seeking a
prescriptive/adverse right by their use, but instead a private way. But this ignores
long-established statutory and case law in Georgia that the private way interest
described in OCGA § 44-9-54 is part of the scheme set out in OCGA § 44-9-1 et seq.,
which establishes how it may be acquired: “The right of private way over another’s
land may arise from an express grant [or] from prescription by seven years’
uninterrupted use. . . .”8 This prescriptive right is the very relief the Lewises sought
in their action in the probate court under OCGA § 44-9-59, and it requires notice of
adverse use to initiate the prescriptive period.9
8 (Emphasis supplied.) 9 See OCGA §§ 44-9-1; 44-9-54; 44-9-55. See also Holloway v. Birdsong, 139 Ga. 316, 317 (77 SE 146) (1913) (“The act of 1872, codified in §§ 824, 825, 826, and 827 of the Civil Code, [now OCGA §§ 44-9-54 and 44-9-59] giving the ordinary jurisdiction to try summarily the question of removing obstructions to private ways, is confined to cases of private ways which arise by prescriptive right acquired by seven years or longer, of possession or user of the same.”) (emphasis supplied). See generally Burnum v. Thomas, 71 Ga. App. 690, 693 (31 SE2d 925) (1944) (“‘When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that he has changed his position from that of a mere licensee to that of a prescriber. . . .’”); Wilkes 581 Farms, LLC, 356 Ga. App. at 734-735 (explaining that “to obtain a private way over the land of another from prescription by seven years’ uninterrupted use” under OCGA § 44-9-1, the use must “be adverse rather than permissive”) (punctuation
7 Cases addressing claims to private ways under the same statutory scheme relied
on by the Lewises illustrate this. “[T]he right which [the Lewises seek] under [OCGA
§ 44-9-1], if obtained, is a prescriptive right by use, and, the decisions of this court
are that under [OCGA § 44-9-1], the notice required is notice of the assertion of an
adverse use, under claim of right, as distinguished from a mere permissive use.”10
Notice of adverse use
is particularly requisite when the use originates under a [permissive] license[, as it did here.] Where an open and visible use originated in a license and subsequently becomes adverse, knowledge that the use is under a claim of right, and not under the license, must be brought home to the owner of the servient estate, either expressly or impliedly. . . .11
Here,
[t]he evidence showing [the prior permissive] use of the [driveway] as the only notice given to [Pineda and her predecessors] fails utterly to
omitted). 10 (Citations and punctuation omitted.) Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360, 362 (434 SE2d 477) (1993). 11 (Punctuation omitted; emphasis supplied.) Id. at 362. See also Ponder v. Williams, 80 Ga. App. 145, 151 (2) (80 SE2d 145) (1949) (“If the use and repairs made on this road by [the plaintiff] were by permission of the owner of the . . . land, as was her first right to use it [by permission], then in such circumstances she did not acquire a prescriptive right or title to the road in question.”)
8 prove that [Pineda and her predecessors] were appri[s]ed of [the Lewises’s] adverse claim. In such circumstances, the [probate] court erred in sustaining [the Lewises’ claim].12
Accordingly, we reverse the judgment of the probate court granting a private way
through prescriptive use.13
2. Pineda contends that this Court should remand the case for determination of
the Lewises’ trespass claim. But as noted above, that claim was given a separate case
number and remains pending in the superior court. Accordingly, the trespass case is
not before us, and it need not be remanded.
Judgment reversed. Gobeil, J., and Senior Judge C. Andrew Fuller concur.
12 (Punctuation omitted.) Eileen B. White & Assocs., 263 Ga. at 362. 13 See Douglas, 232 Ga. App. at 553 (2) (affirming a judgment denying a petition to remove an obstruction in a private way because the petitioner “failed to prove that he and his predecessors made adverse use of the trail for seven or more years”) (emphasis supplied); Eileen B. White & Assocs., 263 Ga. at 362 (“An owner’s acquiescence in the mere use of his road establishes, at most, a revocable license.”).