O'Barr v. Duncan

2 S.E.2d 82, 187 Ga. 642, 1939 Ga. LEXIS 457

• Court: Supreme Court of Georgia
• Decided: March 8, 1939
• Docket: No. 12569
• Status: Published

Opinion

Atkinson, Presiding Justice.

1. The ground of the motion for new trial which contends that a portion of the court’s charge therein referred to was not adjusted to the plaintiffs’ contention as made by the pleadings and evidence, when considered in connection with the entire charge, is without merit.

2. A charge which in effect instructs the jury that an easement appurtenant created by deed passes with the dominant estate, although the conveyance thereof may not have expressly mentioned the easement, was pertinent to the issue, and stated a correct principle of law. Stovall v. Coggins Granite Co., 116 Ga. 376, 378 (42 S. E. 723).

3. It was not error to instruct the jury that where an easement has been acquired by grant, a mere nonuser without further evidence of an intention to abandon it will not constitute abandonment. Mayor &c. of Savannah v. Barnes, 148 Ga. 317 (96 S. E. 625, 9 A. L. R. 419) ; Tietjen v. Meldrim, 169 Ga. 678 (151 S. E. 349).

4. A reservation of an easement in a deed by which land is conveyed is equivalent, for the purpose of the creation of the easement, to an express grant of the easement by the grantee. 17 Am. Jur. § 29, and cit.

5. The evidence was sufficient to support the verdict, and none of the grounds require the grant of a.new trial.

Judgment affirmed.

All the Justices concur. Maddox, Matthews & Owens, for plaintiffs. Wright & Covington, for defendant.