Thomason v. Kern & Co.

376 S.E.2d 872, 259 Ga. 119, 1989 Ga. LEXIS 100

• Court: Supreme Court of Georgia
• Decided: March 2, 1989
• Docket: 46183
• Status: Published

Opinions

Gregory, Justice.

Appellant Thomason filed a complaint in Fulton Superior Court on three counts: count one, for an injunction; count two, for damages; and count three, for attorney fees and expenses.

Thomason alleged that he had acquired a prescriptive easement through Kern’s land and he sought to enjoin Kern from blocking a driveway on the corporation’s land. Thomason had used the driveway since he purchased his house in 1962. Kern purchased the adjoining land in 1986. In August 1986, Thomason learned that Kern intended to move the driveway in order to prepare the land for commercial development. On September 5, 1986, Thomason gave Kern written notice of his right to a prescriptive easement.

Kern negotiated with Thomason in an effort to grant him an express easement over a new driveway in exchange for the old driveway, but the parties were unable to agree. On April 24, 1987, Thomason filed this action. In its answer, Kern pleaded the defense of laches.

Both parties moved for summary judgment. The trial court granted summary judgment for Kern and denied Thomason’s summary judgment motion. The trial court held that Thomason had acquired a prescriptive easement but that Kern could alter the path of the easement as long as Thomason was not inconvenienced. Although the trial court did not reach the laches issue, the court found that Kern had spent more than one million dollars in preparing its property for development. The court also found that Thomason learned of the impending road relocation at least nine months before he filed suit and that he let Kern spend substantial amounts of money before asserting his legal rights.¹

We agree that Thomason had acquired a prescriptive easement over Kern’s land, but we also hold that Kern could not alter the path of the easement. One who would acquire a prescriptive easement must not have shifted the path from place to place during the establishment period. Raines v. Petty, 170 Ga. 53, 57 (152 SE 44) (1929). It follows that once the easement has been acquired, the owner of the servient tenement may not alter the path of the easement.

Kern argues that the new driveway improved Thomason’s rights. But even if Kern had offered Thomason a gold-plated driveway, Kern could not force Thomason to accept a different easement merely because the corporation wanted to develop its land. Therefore, we reverse the trial court’s granting of summary judgment for Kern. Because laches is ordinarily a question of fact properly submitted to a factfinder, we remand this case to determine whether Thomason’s request for an injunction is barred. Bacon v. Edwards, 234 Ga. 100, 103 (214 SE2d 539) (1975).

Because Kern could not alter the path of Thomason’s easement, Thomason’s claims for damages and fees also survive summary judgment.

Judgment reversed and remanded.

All the Justices concur, ex cept Smith, J., who concurs in part and dissents in part. Weltner, J., disqualified.

1 We note that an injunction will be denied a party who with full knowledge of his rights has been guilty of delay in asserting them and has allowed large expenditures to be made by another party on whom great injury would be inflicted by the grant of the injunction. Bacon v. Edwards, 234 Ga. 100, 102 (214 SE2d 539) (1975). Furthermore, a mere objection or protest, or a mere threat to take legal action, is not sufficient to exclude the consequences of laches. Id. at 103.