Sermons v. Agasarkisian

746 S.E.2d 596, 323 Ga. App. 642, 2013 Fulton County D. Rep. 2453, 2013 WL 3497897, 2013 Ga. App. LEXIS 648
CourtCourt of Appeals of Georgia
DecidedJuly 15, 2013
DocketA13A0750
StatusPublished
Cited by5 cases

This text of 746 S.E.2d 596 (Sermons v. Agasarkisian) 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
Sermons v. Agasarkisian, 746 S.E.2d 596, 323 Ga. App. 642, 2013 Fulton County D. Rep. 2453, 2013 WL 3497897, 2013 Ga. App. LEXIS 648 (Ga. Ct. App. 2013).

Opinion

Boggs, Judge.

Veronica and Barry Sermons (collectively “the Sermons”) appeal from the order of the superior court adopting the report of a special master and decreeing that they have no interest in an alleged alley running to the rear boundary of their property and that all interest in the disputed property is vested in Sarkis Agasarkisian and William Martin “pursuant to the deeds of record describing their individual interests in the disputed property.”1 The Sermons contend that the trial court erred by: (1) concluding that the alley was abandoned by nonuse; (2) relying upon an unauthenticated document not admitted into evidence; (3) failing to consider their objections to the special master’s report; (4) failing to vest a portion of the abandoned alley into their title; and (5) entering a final order without resolving their trespass and nuisance claims. For the reasons explained below, we reverse the trial court’s order based upon an error of law.

[O]nce the trial court adopts the special master’s findings and enters judgment, the court’s decision is upheld by the appellate court unless clearly erroneous. Therefore, if there is any evidence supporting the judgment of the trial court, it will not be disturbed. But conclusions of law are reviewed de novo.

(Citations and punctuation omitted.) McGregor v. River Pond Farm, 312 Ga.App. 652, 653(1) (719 SE2d 546) (2011). So viewed, the record shows that the Sermons own property located at 816 Berkeley Avenue in Fulton County. William Martin owns property facing Forrest Street with a rear boundary that adjoins the rear property line of the Sermons’ property. A lot owned by John Green adjoins both the Sermons’ property and that of Agasarkisian and faces Howell Mill Road. Agasarkisian’s property is situated on the corner of Forrest Street and Howell Mill Road. The deeds to all of the properties [643]*643reference an alley running between the properties of Martin and Agasarkisian, along the rear of Green’s property, and to the rear of the Sermons’ property.

After a load of dirt was placed in the middle of the alley in 2008, the Sermons and other adjoining property owners, who are not parties to this appeal, filed a complaint against Martin and Agasarkisian seeking damages for trespass, nuisance, and a judgment declaring the existence of the alley for the mutual use of all adjoining landowners. Martin and Agasarkisian denied liability and counterclaimed for a judgment declaring the disputed alley does not exist and has been abandoned. They also asserted that Martin was the owner in fee of the portion of the easement used by him as a driveway and had acquired an exclusive easement by prescription in the remaining portion of the disputed alley. Following its grant of an interlocutory injunction preventing interference with the plaintiffs’ use of the alley by foot or vehicle, the trial court appointed a special master “to conduct hearings and make such findings of fact and conclusions of law as may be necessary.”

In a hearing held by the special master in December 2009, Barry Sermons testified that he has lived at 816 Berkeley Avenue since 1991, and that he purchased the property in 1995. He testified that from the time he first lived at 816 Berkeley Avenue, pedestrians used an alley running from the back of his property to Forrest Street to travel between Berkeley Avenue and Forrest Street, as well as to walk their dogs. He testified that a survey showing the alley factored into his decision to purchase 816 Berkeley Avenue. He testified that he currently uses the alley to access a garage on the rear of his property, that he has always used the alley to walk his dog, and that he started using it “for vehicular traffic” beginning in the year 2000. He testified that he and an adjoining property owner “put just under $3,000 in [gravel] and dirt and topsoil in to keep it passable.” He also installed a silt fence on one side of the alley and railroad ties on the other to prevent erosion.

He testified that in the year 2000, he obtained a building permit to construct a driveway on the rear portion of his property, that Martin and Agasarkisian sought a temporary restraining order to prevent him from using the alley to access the driveway, but they later “dropped their case.” Since 2000, the Sermons have continuously used the alley. In July 2008, however, Agasarkisian dumped a load of dirt in the middle of the alley to block the Sermons’ use of it. After the trial court granted an interlocutory injunction, Sermons moved the dirt out of the way with a skidloader and resumed his use of the alley.

Sermons initially testified that he obtained a building permit in 2000 to put up a fence on the rear of his property and construct a [644]*644driveway, but during cross-examination, he was shown a building permit for the driveway issued on December 12, 2002. Sermons admitted that after he obtained the permit, he placed gravel in the disputed alley as well as on his own property. In 2006, he obtained a second building permit to build a two-story addition to his house, including a two-car garage, and the work began in 2007. Before adding on to their home, the Sermons had access to the rear of their property from a driveway off of Berkeley Avenue.

Green, who owns property facing Howell Mill Road and adjoining both the Sermons’ and Agasarkisian’s property, testified that he has lived in the area around the alleged alley since 1970 and has knowledge of the area dating back to the 1940s. He testified that he has continuously used the alley since 1967, when his mother moved into the neighborhood.2

Martin testified that he purchased his property in 1966 or 1967, that he never saw an alleyway on his property, and that he installed a driveway on his property and in a portion of the disputed alley to gain access to the rear of his commercial building. Martin testified that before he installed the driveway, the area was not developed and “was just a steep hill.”

Martin’s son testified that after his father purchased the property in 1967, he helped his father build a commercial building on the property to house his electrical motor repair business. During construction, a gravel driveway going to the rear of the building was constructed in the disputed alley. He testified that the portion of the disputed alley beyond the constructed driveway for the commercial building “was an absolute ravine . . . overgrown with kudzu.” This ravine ran from the rear portion of Agasarkisian and Martin’s properties and was “all overgrown, trees falling in it, all that kind of stuff.” Between 1967 and 2002, Martin’s son never saw the disputed alley “in any condition to be used for egress and ingress” or anyone “trying to grade a road in there or drive a vehicle.” He never saw anyone who previously owned the Sermons’ property attempt to develop the disputed alley to gain access to Forrest Street. Finally, no one ever attempted to prevent his father from using the driveway he constructed in the area of the disputed alley.

Agasarkisian testified that when he purchased his property in 1988, there were many trees and a steep hill in the end of the alleged [645]*645alley between his property and Martin’s property, rendering it impossible for a vehicle to pass through to the Sermons’ property. In 2002, after Sermons had been cutting down trees for years, Sermons brought in dirt to fill the area. He testified that he knew John Green and never saw him use the alley from the time he purchased his property in 1988 through the time of the hearing.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

CAROLYN JONES v. LICK LOG CREEK, INC.
Court of Appeals of Georgia, 2023
Hardy v. United States
Federal Claims, 2021
BROWN v. SAPP; And Vice Versa.
829 S.E.2d 169 (Court of Appeals of Georgia, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
746 S.E.2d 596, 323 Ga. App. 642, 2013 Fulton County D. Rep. 2453, 2013 WL 3497897, 2013 Ga. App. LEXIS 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sermons-v-agasarkisian-gactapp-2013.