Revocable Trust of Griffin v. Timberlands Holding Co. Atlantic, Inc.

761 S.E.2d 458, 328 Ga. App. 33, 2014 WL 3057170, 2014 Ga. App. LEXIS 462
CourtCourt of Appeals of Georgia
DecidedJuly 8, 2014
DocketA14A0660
StatusPublished
Cited by2 cases

This text of 761 S.E.2d 458 (Revocable Trust of Griffin v. Timberlands Holding Co. Atlantic, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Revocable Trust of Griffin v. Timberlands Holding Co. Atlantic, Inc., 761 S.E.2d 458, 328 Ga. App. 33, 2014 WL 3057170, 2014 Ga. App. LEXIS 462 (Ga. Ct. App. 2014).

Opinion

RAY, Judge.

The Revocable Trust of Timothy W. Griffin and Timothy W. Griffin, individually and as trustee of the aforementioned trust (collectively “Griffin”), appeal the trial court’s grant of summary judgment upholding Timberlands Holding Company Atlantic, Inc.’s (“Timberlands”) claim of prescriptive easement over Griffin’s property. Asserting error, Griffin appeals. For the reasons that follow, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in OCGA § 9-11-56, must set forth specific facts showing that there is a genuine issue for trial. A defendant may meet its burden on a motion for summary judgment by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations, punctuation and emphasis omitted.) Glatfelter v. Delta Air Lines, 253 Ga. App. 251, 252 (2) (558 SE2d 793) (2002).

The evidence shows that Griffinbought an approximately 91-acre tract of land in Wilcox County from Jesus Brito in October 2011. Timberlands and its predecessor, Rayonier Forest Resources, L.P., had been using an access road that runs east-west across the tract for some years. After purchasing the tract, however, Griffin erected a gate and communicated that access along the road would not be [34]*34permitted. Timberlands’ predecessor1 sued Griffin claiming a prescriptive easement, then moved for summary judgment. After a hearing, which was not transcribed,2 the superior court granted Timberlands’ motion for summary judgment, and Griffin appeals.

Prescriptive rights are to be strictly construed, and the prescriber must give some notice, actual or constructive, to the landowner he intends to prescribe against. OCGA § 44-9-54 provides that a private way, that is, “a right of ingress and egress over the land of another,” may be established by prescription in the following manner: Whenever 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. In order to establish a private way by prescription, the petitioner must also show that the private way did not exceed 20 feet in width, that the use continued along the same route without shifting from one path to another, and that the prescriber kept the way open and in repair during the period of prescription. If the prescriber fails to show any of these elements necessary to establish prescriptive title, he cannot recover.

(Punctuation and footnotes omitted; emphasis supplied.) Yawn v. Norfolk Southern R. Co., 307 Ga. App. 849, 851-852 (2) (706 SE2d 197) (2011). In addition to showing that the private way does not exceed twenty feet in width, the prescriber also must show “that it is the same twenty feet originally appropriated.” (Footnote omitted.) Moody v. Degges, 258 Ga. App. 135, 137 (573 SE2d 93) (2002).

1. Griffin argues that the trial court erred in its determinations related to the width of the private way.

OCGA § 44-9-40 (a) provides, in pertinent part:

The superior court shall have jurisdiction to grant private ways to individuals to go from and return to their property and places of business. Private ways shall not exceed 20 feet in width and may be as much less as the applicant may choose or as the court may find to be reasonably necessary. . . .

[35]*35(Emphasis supplied.) “[T]he private way could not exceed ... twenty feet in width[.]... [T]he burden is on the prescriber to show that it did not exceed the width permitted.” (Citations omitted; emphasis supplied.) Bedingfield v. McCullough, 106 Ga. App. 759, 760 (128 SE2d 374) (1962). See also Yawn, supra.

(a) First, Griffin contends that the trial court made a factual error when it determined that Timberlands provided evidence that the access road “did not exceed twenty feet in width during the prescriptive period.” Specifically, Griffin asserts that the evidence supplied by Timberlands shows merely that the prescriptive use of the roadway — rather than the actual width of the road itself— was 20 feet or less.3 We agree.

In its complaint, Timberlands seeks a 20-foot-wide easement, which OCGA § 44-9-40 gives the superior court jurisdiction to grant provided the other elements of a prescriptive easement are met. However, Timberlands has presented evidence only as to the width of its use, not as to the width of the roadway.

Timberlands offered evidence in the form of an affidavit from Chad Lamb, a resource land manager for Timberlands’ predecessor, Rayonier, that “From early 2000 through mid-2011 Rayonier’s use of the Access Road continued along this same path of less than 20 feet in width without shifting.” (Emphasis supplied.) The prior owner, Brito, stated in an affidavit that Rayonier and its predecessor “adversely used the same twenty (20) feet of access road[.]” (Emphasis supplied.) Also, Clifton McCranie, a crewman for Rayonier, stated in an affidavit that he worked for Rayonier from 1971 to 2009; that he performed repairs on the access road; and that he was “familiar with the Rayonier property illustrated” in a survey dated August 20, 2012. This survey delineates the access road’s width as 20 feet, but the survey post-dates the prescriptive period. McCranie’s affidavit does not state whether he is “familiar” with the road as it appeared during the prescriptive period or at the time the survey was made. Timber-lands urges us to use McCranie’s affidavit to infer that this later [36]*36survey indubitably represents the width of the roadway during the prescriptive period. We cannot make such an inference on Timber-lands’ motion for summary judgment, however, as we must view all reasonable inferences in favor of Griffin as the nonmovant. Glatfelter, supra. Thus, Timberlands has failed to show the width of the roadway and has failed to meet one of the required elements to show a prescriptive easement. Yawn, supra.

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Bluebook (online)
761 S.E.2d 458, 328 Ga. App. 33, 2014 WL 3057170, 2014 Ga. App. LEXIS 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/revocable-trust-of-griffin-v-timberlands-holding-co-atlantic-inc-gactapp-2014.