WS CE RESORT OWNER, LLC v. HOLLAND

884 S.E.2d 282, 315 Ga. 691

• Court: Supreme Court of Georgia
• Decided: February 21, 2023
• Docket: S22G0030
• Status: Published

Opinion

315 Ga. 691 FINAL COPY

S22G0030. WS CE RESORT OWNER, LLC v. HOLLAND et al.

PINSON, Justice.

A resort community in North Georgia includes a golf course

next to a subdivision. The current owner of the resort wants to

redevelop the golf course into a residential property, and several

homeowners in the subdivision sued to stop it. The trial court

concluded that the homeowners had an easement in the golf course

and granted a permanent injunction preventing the course from

being put to any other use, and the Court of Appeals affirmed.

We granted certiorari and now vacate the Court of Appeals’

decision and remand for further proceedings. Both courts below

concluded that the homeowners acquired an easement in the golf

course because their lots were bought with reference to a subdivision

plat that designated a “golf course” next to the subdivision. That

conclusion relied on a long line of our decisions recognizing that easements in features like streets, parks, and lakes could be

acquired on this basis, which amounts to an easement by express

grant. But golf courses are different. Given the wide range of

interests that an easement in a golf course could possibly include—

interests in a view, access, use, or enjoyment, to name a few—merely

designating a “golf course” on a subdivision plat and selling lots with

reference to the plat cannot give reasonable certainty as to the scope

of a claimed easement. And unlike with streets and parks, we are

not aware of longstanding and settled expectations about golf

courses from which intent to grant easements of reasonably certain

scope may be inferred. So, although subdivision owners might be

able to acquire an easement in a given adjacent golf course, the

intent to convey such an interest must be shown through evidence

based in the relevant documents taken as a whole, rather than

presumed based on the golf course’s mere designation on a plat. For

these reasons and more set out below, we vacate the contrary

decision below and remand for further proceedings consistent with

this opinion.

2 1. Background

(a) The Land

In 1993, Fountainhead Development, Inc. developed the

Chateau Elan resort property, which is currently owned by

appellant WS CE Resort Owner, LLC (the “resort owner”). Chateau

Elan includes hotels, a spa, a winery, a tennis center, an equestrian

center, residential subdivisions, and four golf courses, including the

nine-hole “Par 3 Course” at issue here. The Par 3 Course is adjacent

to a residential subdivision known as the “Manor Homes”

subdivision.

In 1995, a surveyor, Donald Jones, prepared “The Final Plat

for Executive Estates — Block A.” The Plat was a representation of

the Manor Homes subdivision, and also noted the owners and uses

of some adjacent properties. On the other side of one boundary of the

subdivided area, the plat listed “Fountainhead Development, Inc.

(Golf Course).” The adjacent properties were noted on the Plat only

generally, with no delineation of boundary lines, specification of

acreage, or identification of reference points. Jones stated in an

3 affidavit that listing adjacent property owners was “typical for plats

and [per] local subdivision regulations,” but that he did not survey

the adjacent golf course and did not intend to include the golf course

as part of the Plat.

A realtor for Chateau Elan, Ben Harrison, testified that within

the Chateau Elan development, residential lots were known for

having either a wooded view or a golf course view, with the golf

course views being more expensive. As part of Harrison’s pitch to

prospective buyers, he would share with them the Master Site Plan,

which showed three 18-hole golf courses and the nine-hole Par 3

Course, as well as wooded-view and golf course-view residential lots.

He also showed them a marketing brochure for the Manor Homes

subdivision, which noted various amenities of the Chateau Elan

property, including the golf courses. The brochure explained that

“[t]his year we will be introducing an exciting new ‘Manor Home’

development of smaller homes overlooking the Par 3 golf course.”

(b) The Homeowners

Evelyn and John McCarthy (with Harrison’s help) purchased a

4 lot in the Manor Homes subdivision in 1995. Evelyn testified that

the couple were “especially interested” in the lot “because it was

adjacent to an existing Par 3 Golf Course and had a good view of the

golf course from its back yard,” and that that particular lot’s

proximity and access to the course was the “sole reason” for their

purchase. In purchasing their home, the McCarthys relied on the

Master Site Plan and marketing brochure provided to them by

Harrison. The McCarthys paid a $15,000 site premium for their lot,

which they understood to be because of its proximity and access to

the course. The couple played golf on the Par 3 Course, enjoyed their

view daily, and also received a free discount card for the course “by

virtue of being a homeowner.”

Thomas and Connie Holland (with the help of Harrison and the

president of Fountainhead) purchased a lot in the Manor Homes

subdivision in 1996. Thomas testified that the couple were

“especially looking for a home in a golf community.” He noted that

“[t]he Par 3 Golf Course was an essential part of the concept [of

buying a home in Manor Homes]. . . . We were very much drawn to

5 the Manor Homes because of the Par 3 Golf Course.” The Hollands

paid a $15,000 site premium for their lot, which they understood to

be because of its proximity to the course. The Hollands relied on the

Plat’s depiction of the Par 3 Course as adjacent to the Manor Homes.

(c) Proposed Redevelopment of the Par 3 Course

According to the resort owner, the Par 3 Course is not

profitable. As a result, the resort owner applied to rezone the Par 3

Course to enable its conversion into a residential development. After

its rezoning application was granted, Evelyn McCarthy1 and the

Hollands (collectively, the “homeowners”) sued the resort owner in

Barrow County Superior Court, seeking (1) an interlocutory

injunction to enjoin the resort owner from “taking any action to

change the use of the Par 3 Course”; (2) a declaratory judgment that

(a) the Par 3 Course is subject to a use restriction limiting the use to

operation as a golf course, (b) the use of the property as a golf course

cannot be eliminated, and (c) the Par 3 Course cannot be converted

to residential uses or any uses other than that as a golf course; and

1 John McCarthy passed away in 2008.

6 (3) attorney fees.

(d) Decisions Below

The parties cross-moved for summary judgment. The trial

court granted summary judgment to the homeowners, finding that

they had established an implied easement that required the resort

owner to keep the Par 3 Course operating as a golf course. The court

found that an easement had been created by two different methods,

which it called the “common-grantor” and “oral assurances”

methods, relying on Peck v. Lanier Golf Club, Inc., 315 Ga. App. 176

(726 SE2d 442) (2012).

Applying Peck’s common-grantor method, the trial court looked

to the plat and other evidence to determine whether the Par 3

Course was “set apart” for the homeowners’ use. The court concluded

that it was, noting that the plat included “Fountainhead

Development, Inc. (Golf Course)” as a description of property

adjacent to the subdivision, McCarthy’s status as a homeowner in

the Manor Homes gave him a special use discount on the course, and

the homeowners had paid a premium price to “purchase[ ] an

7 adjacency and proximity” to the course.

Applying Peck’s oral-assurances method, the trial court also

found that Fountainhead had made oral assurances to the

homeowners that the Par 3 Course would remain a golf course. The

court pointed out that Fountainhead’s marketing materials

advertised the Manor Homes as “overlooking the Par 3 Course,” and

that Fountainhead told buyers they would be buying lots “in a golf

course community” and that they could use the course.

Based on these findings, the trial court held that the

homeowners were entitled to a permanent injunction “preventing

the Par 3 Course from being put to any other use.”

The resort owner appealed, and the Court of Appeals affirmed.

The Court of Appeals agreed with the trial court that an easement

had been created under Peck’s common-grantor method. See WS CE

Resort Owner, LLC v. Holland, 360 Ga. App. 720, 725-732 (860 SE2d

637) (2021). The court explained that the homeowners purchased

their lots according to a recorded plat that showed the Par 3 Course

next to the Manor Homes subdivision, and that the homeowners

8 paid a site premium for that proximity to the course, which, the

court held, was enough to acquire an easement. See id. The Court of

Appeals also upheld the injunction, concluding that the trial court

order had sufficiently described the Par 3 Course and the acts to be

restrained in relation to it. See id. at 732-735.

We granted certiorari.

2. Analysis

(a) Speaking generally, an easement is an interest in land

owned and possessed by another. See, e.g., Hollomon v. Bd. of Ed. of

Stewart County, 168 Ga. 359, 364 (147 SE 882) (1929) (“[a]n

easement is a right in the owner of one parcel of land, by reason of

such ownership, to use the land of another for a special purpose not

inconsistent with the general property in the owner”) (citation and

punctuation omitted). See also Southern R. Co. v. Wages, 203 Ga.

502, 503 (1) (47 SE2d 501) (1948) (holder of an easement has an

interest in “realty” but “is not the owner or occupant of the estate

over which the right extends”); Daniel F. Hinkel, 1 Pindar’s Ga. Real

Estate Law & Procedure § 8:1 (7th ed., Apr. 2022 update)

9 (“Pindar’s”); Jon W. Bruce & James W. Ely, Jr., The Law of

Easements & Licenses in Land § 1:1 (Aug. 2022 update). That

interest, which can be created in a number of ways, see OCGA § 44-

9-1, typically amounts to some limited right to use the land—

common examples include the right to access utilities (like power or

gas lines), see Simpson v. Colonial Pipeline Co., 269 Ga. 520, 521 (2)

(499 SE2d 634) (1998) (gas utility had easement in its gas pipelines

across homeowners’ property); Ga. Power Co. v. Leonard, 187 Ga.

608, 609 (1 SE2d 579) (1939) (electric utility held easement giving it

“the privilege of erecting and maintaining a power line over” subject

property while landowner reserved “the right of cultivation and

ingress and egress”), or to access other land, see Sadler v. First Nat.

Bank of Baldwin County, 267 Ga. 122, 122 (475 SE2d 643) (1996)

(bank held easement in access road across other property).

This case concerns a kind of easement specific to residential

subdivisions. Georgia law has long recognized that when a developer

conveys lots with reference to a subdivision plat, the grantees may

receive easements in certain features—mostly streets and parks—

10 that are designated on the plat. See Stanfield v. Brewton, 228 Ga.

92, 94-95 (1) (a)-(b) (184 SE2d 352) (1971) (citing Schreck v. Blun,

131 Ga. 489 (62 SE 705) (1908)) (explaining that “[w]here the owners

of a tract of land subdivide it into lots, record a map or plat showing

such lots, with designated streets and a public park, and sell lots

with reference to such map or plat,” the purchasers “have an

easement in these public areas”); East Atlanta Land Co. v. Mower,

138 Ga. 380 (75 SE 418) (1912); Ford v. Harris, 95 Ga. 97, 101 (22

SE 144) (1894) (“[I]f the owner of land lays out streets and alleys and

afterwards sells lots bounding upon them, . . . the purchasers of

those lots acquire the right to have the strips designated as streets

remain open for their use as a perpetual easement over the ground

for ingress to and egress from their property.”); 1 Pindar’s § 8:15.

Our early decisions recognizing the rights of subdivision lot

owners in streets and parks designated on their plats were often

grounded in a theory of estoppel. The reasoning went that

subdivision developers include features like streets and parks to

“mak[e] the residence lots more desirable to prospective

11 purchasers,” Caffey v. Parris, 186 Ga. 303, 306 (1) (197 SE 898)

(1938), and conveying those lots with reference to a unified plan that

integrates and designates those basic features is a “representation”

that the features are meant for the grantees’ future use and

enjoyment. Schreck, 131 Ga. at 492. Because “it is just to presume

that the purchasers paid the added value” for the benefits of living

next to a park or within a convenient network of streets, Adair v.

Spellman Seminary, 13 Ga. App. 600, 606 (79 SE 589) (1913), the

purchaser had “a right to rely upon the plan which the grantor

promulgated, and on which he acted,” Schreck, 131 Ga. at 491

(explaining that “[s]ome of the considerations inducing the

purchase” of a lot with reference to a subdivision plat that

designated a street “may have been the probability of having

neighbors, particular uses to which the purchased premises might

be put because of the street, and the prospect of an advance in value

from buildings to be erected on other lots”). See also Adair, 13 Ga.

App. at 606 (“[c]ertainly, as every one knows, lots with convenient

cross streets are of more value than those without”); 1 Pindar’s §

12 8:15 (“The fact that a lot is surrounded by a network of streets and

alleys is generally considered as greatly increasing its market value

through added accessibility, availability of public utilities and

services, and the attraction of desirable neighbors.”). So, when a

subdivision owner sold lots with reference to a plat that designated

streets or parks, we would hold that the seller was “estopped from

asserting a claim adverse to the right of the purchasers” to use the

streets and parks and have them kept open for their use. Caffey, 186

Ga. at 306 (1). See Tietjen v. Meldrim, 169 Ga. 678, 697 (151 SE 349)

(1930) (“When a grantor sells lots of land . . . shown upon a plat . . .

referred to [in the deeds] as laid out in a subdivision of the grantor’s

land, he is estopped to deny the grantees’ right to use the streets

delineated in such plat.”); Mower, 138 Ga. at 388 (“[I]f the lots were

sold with reference to the plats which contained a delineation of the

parks, and the original purchasers bought with reference thereto,

the seller is estopped from setting up a claim adverse to the right of

private individuals, or their assigns, who so bought.”); Schreck, 131

Ga. 489; Ford, 95 Ga. 97. See also Law of Easements & Licenses in

13 Land § 4:30 (explaining that easements implied from deed

descriptions may be grounded in an estoppel theory, citing Hamil v.

Pone, 160 Ga. 774 (129 SE 94) (1925), among other decisions).

This estoppel theory, however, has given way in our decisions

to the view that these interests in streets and parks acquired by

owners who buy lots with reference to subdivision plats are in fact

easements acquired by “express grant.” Walker v. Duncan, 236 Ga.

331, 332 (223 SE2d 675) (1976). The rationale is mostly the same: it

still starts with the understanding that conveying lots with

reference to a subdivision plat that integrates features like streets

and parks can represent that they are “set apart for” the grantees’

use. Id. And this inference is still strengthened by the commonsense

presumptions that developers include these features to induce

buyers to buy, and pay more for, their property. See, e.g., Higgins v.

Odom, 246 Ga. 309, 309-310 (271 SE2d 211) (1980) (in holding that

the sale of lots by reference to a subdivision plat with “a lake area

designated on it” granted an easement in the lake, explaining that

“[t]he availability of the lake constitutes a material part of the value

14 of the adjoining property, and is often the principal incentive for its

purchase”) (citation omitted); Walker, 236 Ga. at 332 (explaining

that “[t]he property owners were enticed into purchasing their lots,

and presumably paid a greater price for them, by the implied

promise of the developer to preserve this lake area as a park”). This

inference, however, is more than a basis for estoppel: because the

plat in these cases is a graphical representation of the plan the

purchaser is buying into, we have recognized that the grantees who

buy with express reference to the plat have “acquired an easement

[in the streets or parks designated on the plat] as effectively as if the

deed had specifically granted it.” Westbrook v. Comer, 197 Ga. 433,

439 (29 SE2d 574) (1944). See also Tietjen, 169 Ga. 678; Law of

Easements & Licenses in Land § 4:31 (putting Georgia decisions in

category of cases that “suggest that such easements are really

express servitudes because they are graphically represented on the

plat” (citing, among other decisions, Sadler, 267 Ga. 122; Fairfield

Corp. No. 1 v. Thornton, 258 Ga. 805 (374 SE2d 727) (1989); Smith

v. Gwinnett County, 248 Ga. 882 (286 SE2d 739) (1982); Walker, 236

15 Ga. 331)).

(b) Of course, not every word or mark that designates property

on a subdivision plat grants an easement to lot owners. For example,

subdivision plats routinely identify or describe the various lots in

the subdivision as well as neighboring properties, but no one would

seriously suggest that a lot owner who buys with reference to the

plat gets an easement in all of their neighbors’ property merely

because it is labeled.2 Instead, the question is whether we can infer

from the designation on the subdivision plat a “clear intent” to set

apart the designated area for the lot owners’ use or enjoyment.

Miller v. Wells, 235 Ga. 411, 416 (219 SE2d 751) (1975), disapproved

on other grounds, Wheatley Grading Contractors, Inc. v. DFT

Investments, Inc., 244 Ga. 663 (261 SE2d 614) (1979). See also

Goodyear v. Trust Co. Bank, 247 Ga. 281, 285 (2) (276 SE2d 30)

(1981) (declining to recognize that lot owners in beach subdivision

had a recreational easement in beach because the plats in question

2 Georgia’s standards for property surveys require plats to include “[t]he

names of adjacent property owners on all lines” of the plat. Ga. Comp. R. & Regs., r. 180-7-.07 (d) (14). 16 “do not indicate any intent on the part of the developer to create”

such an easement); Rolleston v. Sea Island Properties, Inc., 254 Ga.

183, 184 (1) (327 SE2d 489) (1985) (explaining that in Goodyear, the

crucial inquiry was to look at “the intent of the parties at the time

of the conveyances to determine whether any recreational easement

had been conveyed”); Smith v. Bruce, 241 Ga. 133, 143 (1) (244 SE2d

559) (1978) (focusing inquiry on the “intent of the subdivider to grant

easements in this open area”); Walker, 236 Ga. at 332 (“It is well-

established that where a developer sells lots according to a recorded

plat, the grantees acquire an easement in any areas set apart for

their use.”).

(i) For a small category of features, designating them

appropriately on the subdivision plat is enough, absent contrary

evidence based in the plat or deed, to demonstrate clear intent to

grant an easement in the features to lot owners who bought with

reference to the plat. Our decisions have included in this category

(1) streets designated and laid out on the subdivision plat, see

Schreck, 131 Ga. 489; Ford, 95 Ga. 97; (2) parks, see Caffey, 186 Ga.

17 303; Mower, 138 Ga. 380; and (3) lakes, which we have equated to

parks, see, e.g., Higgins, 246 Ga. 309; Walker, 236 Ga. 331.

These features share two related things in common. First,

there is simply a well-settled understanding, reflected in more than

a century of our decisions, that when these basic features are

designated on a subdivision plat, there is ordinarily no reason to

doubt that they are included as part of the unified plan for the

subdivision and meant for the lot owners’ use. See, e.g., Hendley v.

Overstreet, 253 Ga. 136, 136 (318 SE2d 54) (1984) (“It is well settled

that when a subdivision contains an attraction such as a park or

lake which renders the lot more desirable, the sale of lots in

reference to a plat showing the attraction will create an irrevocable

easement in such an area for the lot owners.”). Second, these are the

sort of features for which designation or delineation on the plat alone

can give reasonable certainty about the scope of the easement

granted. See Macon-Bibb County Indus. Auth. v. Central of Ga. R.

Co., 266 Ga. 281, 283 (3) (466 SE2d 855) (1996) (“An express grant

of an easement must contain language sufficient to designate

18 with reasonable certainty the land over which it extends.” (quoting

1 Pindar’s § 8:18)); Howard v. Rivers, 266 Ga. 185, 186 (2) (465 SE2d

666) (1996) (“The description of an easement is sufficient if it

provides a key so that the land where the easement is located can be

identified.”). When a subdivision plat designates a strip of land as a

street, it conveys with reasonable clarity that purchasers would

acquire a right to have the strip “remain open for their use . . . for

ingress to and egress from their property”—that is, to use it as a

street. Ford, 95 Ga. at 101. The same goes for a park or lake: when

these open and passive recreational features are delineated on a

plat, the designation itself identifies with reasonable certainty an

easement for recreational use that extends across the delineated

area. See, e.g., Mower, 138 Ga. at 391 (“The word ‘Park,’ written

upon a block of land designated upon a map, is as significant of a

dedication, and of the use to which the land is dedicated, as is the

word ‘street,’ written upon such map. The word carries with itself

the idea of an open or enclosed tract of land for the comfort and

enjoyment of the inhabitants of the city or town in which it is

19 located, and is so defined by lexicographers. . . . In London, as well

as in any city in this country, the term ‘park’ signifies an open space

intended for the recreation and enjoyment of the public, and this

signification is the same, whether the word be used alone or with

some qualifying term, as Hyde Park, or Regent’s Park, or, as in the

present case, ‘Central Park.’” (quoting Archer v. Salinas City, 28 P.

839, 841 (Cal. 1892)); Higgins, 246 Ga. at 310 (lake designated on

plat “should be regarded as in effect a dedication of the lake as a

recreational area for the benefit of all adjoining owners”). In other

words, settled expectations rooted in more than a century of practice

and the relative ease with which the scope of an easement in these

features can be discerned support a strong presumption that

designating these features on a subdivision plat conveys an intent

to grant an easement to lot owners who buy with reference to the

plat.

(ii) For other kinds of features, however, our decisions have not

accepted mere designation on a subdivision plat as sufficient indicia

of intent to grant an easement.

20 In a series of decisions involving asserted easements in

beaches, rather than simply noting that lots were sold with

reference to a subdivision plat that designated the beach areas in

question, we looked to the plat as a whole (and the deed referencing

the plat) for evidence of the developer’s intent to grant easements.

See Rolleston, 254 Ga. at 183-184 (1); Goodyear, 247 Ga. at 285 (2);

Smith, 241 Ga. at 141-143 (1). In Smith, for example, we concluded

that a sale with reference to a plat granted easements in the beach

designated on it based on a list of clues from the plat that established

the requisite intent, including

[t]he naming of the subdivision, “East Beach Subdivision”; the subdividing of practically all of the land area owned except the beach area; the designating of the front or easternmost street as “Beach Drive”; the leaving of an open area between an area designated as “smooth, hard beach” and “Beach Drive” without any reservations; the entering on the plat “Atlantic Ocean”; the failure to afford otherwise any reasonable means of access from the lots and streets in East Beach Subdivision to the smooth, hard beach and ocean; the designation of a line as “mean high water line” between the area designated as smooth, hard beach and “Beach Drive”; and the selling of one or more lots referring to such area in the recorded plat.

Id. at 142 (1). And we reached the opposite conclusion in Goodyear

21 because the plats in question included “express reservation[s]” as to

the beach and did not otherwise “indicate any intent on the part of

the developer to create a recreational easement.” 247 Ga. at 285 (2).

See also Rolleston, 254 Ga. at 183-184 (1) (pointing out that the

crucial inquiry in Goodyear was to look at “the intent of the parties

at the time of the conveyances to determine whether any

recreational easement had been conveyed” and reaffirming

conclusion that plats in those cases did not show intent to convey

easement in beach areas in question).

We also rejected the simplified plat-designation-as-intent

analysis that we had applied to streets and parks in concluding that

subdivision lot owners did not have an easement in a “commercial

boating and swimming venture.” Altman v. Quattlebaum, 253 Ga.

341, 342 (1) (320 SE2d 179) (1984). The venture had been in

existence (and owned by the subdivision developer) when it was

designated on the subdivision plat as a “Recreational Center.” Id. In

denying the lot owners’ easement claims, we pointed out that while

the venture was in operation, “subdivision lot owners, as well as

22 members of the general public, were charged fees for boating and

swimming privileges” there; the tract “was under fence, except for

the lake frontage, and it was closed each year to everyone from after

Labor Day until early April”; “[n]o subdivision lot owner ever

complained of having to pay use fees, or of being excluded during the

fall and winter seasons, or of exclusion from the tract while used by

the YMCA, or when it was closed later to all uses”; and “[t]here were

no deed covenants, plat restrictions, or property association

agreements in reference to the tract.” Id. Although there was

“testimony that some subdivision lot owners had used picnic

facilities without charge,” the evidence as a whole did not establish

any “right to use the tract” in favor of the lot owners. Id.

We did not explain in these decisions why we required a

demonstration of intent to convey an easement based on the deed

and plat as a whole rather than the simplified analysis used for

streets, parks, and lakes. But the distinction we identify today is

reasonable. We are aware of no longstanding or entrenched

expectations about beaches or active businesses like those

23 animating our decisions recognizing easements-by-subdivision-plat

in streets, parks, or lakes. That difference alone seems enough to

decline to extend the near-automatic recognition of such easements

to other features. In addition, at least for the swimming and boating

venture (and other active businesses open to the public), designation

or delineation on the plat alone would not normally provide enough

certainty about the nature or scope of the easement granted as

would designating a passive feature like a street, park, or lake.

Simply put, it is not clear or obvious to us what property interests a

lot owner’s “easement” in an adjacent business might include, and

such uncertainty cuts against recognizing such an easement based

on only the business’s mere designation on a plat.3

In sum, our easement-by-subdivision-plat decisions have

distinguished between easements in two kinds of features.

Historically, easements in basic features like streets, parks, and

3 We acknowledge that beaches do not seem all that different from parks

or lakes in this regard, but the lack of well-settled expectations about beaches as integrated features of subdivisions, at least as far as our decisions show, is enough to distinguish them from streets, parks, and lakes. 24 lakes that are integral parts of a unified subdivision plan, the scope

of which typically can be ascertained with reasonable certainty from

their mere designation on the plat, can be granted by such

designation plus sale of lots with reference to the plat. Before

recognizing easements in other features, by contrast, our decisions

have required a more traditional showing of intent inferred from

evidence based in the relevant documents taken as a whole.

(c) Do golf courses fall into the limited category of features for

which recognizing an easement-by-subdivision-plat is near-

automatic? We cannot reject the idea out of hand. As with streets,

parks, and lakes, developers almost certainly include golf courses in

subdivision plans to induce buyers to buy, and pay more for, lots in

those subdivisions, and those buyers might reasonably expect the

promised golf course to be built, maintained, and operated for their

use or enjoyment for years to come. These sound like some of the

reasons our past decisions have given for recognizing easements-by-

subdivision-plat as a general matter.

But the reasons for recognizing easements in streets, parks,

25 and lakes based on plat designations alone—rather than the more

typical showing of intent we have required for other features—do

not apply to golf courses. First, whatever assumptions based in

common sense or experience one might have about golf course

subdivisions, they pale in comparison to the longstanding and

widely accepted understanding about the meaning of designating

streets or parks on a subdivision plat. The ease with which our

decisions have recognized easements in these features based on

mere plat designations comes in large part from more than a century

of settled expectations about the intent that can be inferred from

such designations. See Ford, 95 Ga. at 101; Mower, 138 Ga. at 391.

We are not aware of (and the parties have not identified) any even

remotely similar set of longstanding expectations about golf courses.

Second (and related to the first reason), merely designating a

golf course on a plat, without more, typically does not give

reasonable certainty about the scope of any easement in it. See

Howard, 266 Ga. at 186 (2); 1 Pindar’s § 8:18. The difficulty is that

there is much more to a golf course than a mere strip of land or open

26 area. Even at its most basic, a golf course is an area of land that is

laid out and actively maintained in a configuration and condition

that allows someone to play the game of golf on it. See, e.g., Golf

course, Merriam-Webster's Unabridged Dictionary,

https://unabridged.merriam-

webster.com/unabridged/golf%20course (last visited January 25,

2023) (“an area of land laid out for the game of golf with a series of

9 or 18 holes each including tee, fairway, and putting green and

often one or more natural or artificial hazards”). Anyone familiar

with golf courses would likely also expect one to include basic

supporting amenities: golf carts, a clubhouse with restrooms and

locker rooms, a pro shop, and even some kind of food and beverage

service. And as far as we know, developing and maintaining all of

these things that make up a typical golf course requires an ongoing

business.4

4 This brief description of a generic golf course and its expected features

should not be taken as an opinion, authoritative or otherwise, about the fundamental characteristics of a “golf course” or the game of golf. We leave such questions to the proper authorities. Cf. PGA Tour, Inc. v. Martin, 532 U.S.

27 This relative complexity means it is not at all obvious what an

easement in any given golf course might look like. Would it give a

lot owner merely the right to a view of something that looks like a

golf course, or a greater right to access or even play golf on the

course? If the interest includes access, could the lot owner traverse

the entire property? This is not to say that lot owners could never

acquire an easement in a golf course. But it does mean that, in

contrast to streets, parks, and lakes, merely printing the phrase

“golf course” on a subdivision plat does not provide reasonable

certainty as to the scope of a claimed easement in the golf course.

The range of possible property interests a lot owner might desire or

expect from such an easement is too wide, and no longstanding or

settled expectations exist to narrow or fix the interests in question.

The bottom line is that golf courses do not fall into the limited

661, 700 (121 SCt 1879, 149 LE2d 904) (2001) (Scalia, J., dissenting) (declaring (with no small amount of sarcasm) that “[i]t has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power ‘to regulate Commerce with foreign Nations, and among the several States,’ to decide What Is Golf.” (cleaned up)).

28 set of features for which a plat designation alone presumptively

demonstrates the clear intent needed to recognize an easement in

those features. Instead, the necessary intent must be demonstrated

case-by-case through evidence based in the deed and plat as a whole.

See Smith, 241 Ga. at 142 (1); Goodyear, 247 Ga. at 285 (2); Altman,

253 Ga. at 342 (1).

(d) Here, the Court of Appeals concluded that the lot owners

acquired an easement in a golf course based only on a showing that

the lot was purchased with reference to a recorded subdivision plat

that “depicted” the course adjacent to the subdivision and paid a

premium for the lot’s proximity to the course. See WS CE Resort

Owner, LLC, 360 Ga. App. at 725-726. That conclusion was

understandable: our body of easement-by-subdivision-plat decisions

is old and messy, and the distinction between the simplified plat-

designation-plus-sale analysis and the broader intent analysis was,

until now, implicit. But because our holding today rejects the former

analysis for golf courses, we vacate the Court of Appeals’ decision

29 and remand for further proceedings.5

On remand, the key question is simply whether the intent to

grant an easement in the golf course was shown with sufficient

clarity. Our past decisions addressing that question outside of the

special cases of streets, parks, and lakes offer some guidance. In

those decisions, we looked to evidence based in the deed and plat as

a whole and considered, for example, how integral to the subdivision

the feature in question appeared, see Smith, 241 Ga. at 142 (1)

(noting centrality of beach to subdivision based on names of

5 We also disapprove the Court of Appeals’ earlier decision in Peck v.

Lanier Golf Club, Inc., 315 Ga. App. 176 (726 SE2d 442) (2012), to the extent that it applied the same plat-designation-plus-sale analysis to golf courses. We further note that some decisions of the Court of Appeals appear to have required proof that a lot owner actually paid a premium for her lot as a prerequisite for recognizing an easement by subdivision plat. See WS CE Resort Owner, LLC, 360 Ga. App. at 727-728; Camp Cherokee, Inc. v. Marina Lane, LLC, 316 Ga. App. 366, 369 (729 SE2d 510) (2012) (concluding that no implied easement existed for lake access, where the lake was not set apart for the lot owners’ use when there was no evidence that the owners paid premiums for their lots and the lots were not adjacent to the lake); Peck, 315 Ga. App. at 179 (explaining that to establish an implied easement in a subdivision golf course, plaintiff had to show that he purchased lot according to plat and that he “paid more” for a “golf course lot”). Although our decisions recognizing such easements have noted that lot owners paid or “presumably paid” a premium for lots that reflects the enhanced value created by including features like streets, parks, or lakes, we see no basis in those decisions for requiring specific proof of such higher payments to establish that an easement was granted. We disapprove these decisions to the extent they impose such a requirement. 30 subdivision and street, among other things); whether the feature

was included without any express reservations, see id. (open beach

area noted on plat “without any reservations”); Goodyear, 247 Ga. at

285 (2) (noting “express reservation” made to use and title in the soft

sand beach in question); and whether the plat provided for other

reasonable access to the feature, see id.

Other questions may inform this intent analysis for a golf

course. For example, North Carolina courts addressing whether lot

owners had an easement-by-subdivision-plat in a golf course have

looked to how precisely the golf course was depicted on the plat: in

their view, plats did not show that a developer “clearly intended” to

grant an easement in the golf course when they (1) included a

“dotted line location of the golf course greens and fairways” with no

metes and bounds, Friends of Crooked Creek, L.L.C. v. C.C. Partners,

Inc., 802 SE2d 908, 914 (N.C. Ct. App. 2017); (2) showed “golf course

holes . . . depicted adjacent to some of the residential lots” with the

“outer boundaries” of the golf course “either not marked at all or . . .

depicted with dotted lines” with no metes and bounds, Home Realty

31 Co. & Ins. Agency, Inc. v. Red Fox Country Club Owners Assn., Inc.,

852 SE2d 413, 427 (N.C. Ct. App. 2020); or (3) did not “depict the

entire Subject Property, complete with a metes and bounds

description, being used as a golf course” but only “label[ed] or

illustrate[d]” some of the holes of a golf course and did not

“demarcate between areas labeled as a golf course” and other “future

development,” Cape Homeowners Assn., Inc. v. Southern Destiny,

LLC, 876 SE2d 568, 576 (N.C. Ct. App. 2022). The second of these

decisions explained that “because nothing on the plat or referred to

therein would enable a title attorney to determine the precise

boundaries of the area burdened with the golf course easement, the

plat is not capable of describing or reducing an easement in the golf

course to a certainty.” Red Fox Country Club Owners Assn., 852

SE2d at 427 (cleaned up). Although we do not suggest that North

Carolina easement-by-subdivision-plat law is identical to Georgia’s,

we agree that looking to how precisely the golf course is described

and depicted on the plat is relevant to the intent analysis required

by our law, particularly given the need to provide reasonable

32 certainty as to the nature and scope of any claimed easement in the

golf course. See Macon-Bibb County Indus. Auth., 266 Ga. at 283 (3);

Howard, 266 Ga. at 186 (2). But see Murdock v. Ward, 267 Ga. 303,

303 (1) (477 SE2d 835) (1996) (“[T]he law does not require perfection

in the legal description of an easement.”).

A final point about evidence. Our easement-by-subdivision-plat

decisions have largely focused only on the plat itself (and the deed

that references the plat) to determine whether an easement has

been granted. See, e.g., Goodyear, 247 Ga. at 285 (2) (explaining that

homeowner did not have easement to soft sand portion of beach

because the “plats [did] not indicate any intent . . . to create a

recreational easement as to the entire soft sand beach”); Smith, 241

Ga. at 141-142 (1) (describing plat and concluding that “the sale of a

single lot with reference to the plat would complete the granting of

an easement”); Caffey, 186 Ga. at 306-307 (1) (referring to plat

showing land subdivided into streets, residential lots, and parks,

and concluding that homeowner who purchased lot “with reference

to the plat” acquired easement in park); Schreck, 131 Ga. at 491-492

33 (holding that where landowner sells land “with reference to” a plat,

the purchaser “has a right to rely upon” an easement shown on the

plat). This approach seems to us most consistent with the rationales

for recognizing this kind of easement, and it is supported by the

practical concern that a title attorney, unaware of extrinsic evidence

like marketing materials or oral assurances made decades ago, still

needs to be able to discern the existence of this kind of easement

through a careful title search. See, e.g., Neeley v. Fields, 879 SE2d

728) (N.C. Ct. App. 2022) (attorneys did not commit malpractice by

drafting warranty deed that stated property was subject to “Utility

Easements, of record, if any,” without specifying any such

easements, because title search would have revealed existing

easement); Smith v. Tolbert, 211 Ga. App. 175, 176 (438 SE2d 655)

(1993) (sellers of land not required to defend purchasers against

easement-holder’s claim to possess easement in fee simple, when

purchasers’ title search revealed existence of easement and

purchasers did not include easement in list of matters to be resolved

before closing). See also Merlino v. City of Atlanta, 283 Ga. 186, 188-

34 189 (1) (657 SE2d 859) (2008) (holding that purchaser acquired land

free of an easement when neither title search nor land survey nor

other “ordinary diligence” revealed its existence).

That said, in a couple of these decisions, we have also

considered evidence from beyond the plat and deed. See Altman, 253

Ga. at 342 (1) (considering historical limitations on homeowners’

ability to access and use the commercial boating and swimming

venture at issue, including that they paid fees, that the tract was

fenced except for the lake frontage, and that the business was closed

altogether in the fall and winter); Miller, 235 Ga. at 413-416 (when

plat designated “reserved” strip of land behind residential lots but

was ambiguous as to whether land was reserved for original grantor

or adjacent lots, considering testimony about history of use). We did

not explain in those decisions why we considered such evidence.

Perhaps we applied the rule we have set out for express easements,

which allows consideration of parol evidence if the written

instrument is ambiguous. See Irvin v. Laxmi, Inc., 266 Ga. 204, 205

(1) (467 SE2d 510) (1996). That rule makes sense for construing a

35 true express easement, where the grant of an easement is clear—so

a title search could discover it—and the ambiguity in question would

concern the easement’s scope. See, e.g., Crabapple Lake Parc Cmty.

Assn., Inc. v. Circeo, 325 Ga. App. 101, 105-106, 109 (1) (a) (751 SE2d

866) (2013) (applying ordinary rules of contract construction to

determine scope of express easement and considering parol evidence

to resolve ambiguity). See also Mun. Elec. Auth. of Ga. v. Gold-Arrow

Farms, Inc., 276 Ga. App. 862, 866-867 (1) (625 SE2d 57) (2005)

(explaining that construing the language in express easements is

governed by rules of contract construction, including the

consideration of parol evidence if “the written instrument is

ambiguous”). Or, maybe this question of what evidence is properly

considered to determine the existence of an easement-by-

subdivision-plat simply was not raised. In any event, we are

skeptical that evidence from outside the plat and deed is properly

considered, at least as a general matter, in determining whether an

easement is created by the sale of a lot with reference to a

subdivision plat rather than with express language in a deed.

36 The above guidance is just that. The ultimate inquiry cannot

be reduced to a multi-factor test, but rather asks simply whether the

evidence, taken as a whole, demonstrates clear intent to grant an

easement in the property in question. See Miller, 235 Ga. at 416;

Smith, 241 Ga. at 142; Goodyear, 247 Ga. at 285 (2); Altman, 253

Ga. at 342 (1). We leave it to the courts below to answer this question

in the first instance.6

Judgment vacated and case remanded. All the Justices concur.

6 We leave for remand the question whether any material issues of disputed fact preclude summary judgment on this question. And because we vacate and remand the decision below for further proceedings as to the existence of an easement in the golf course, we also do not reach any questions about the appropriateness or scope of the trial court’s injunction against the resort owner. We further express no opinion on whether the trial court correctly found that an easement was granted under Peck’s oral-assurances method, although we note that Peck indicates that such method could establish an “implied covenant,” not an easement. See Peck, 315 Ga. App. at 178, 181 (explaining that the lot owner claimed an “easement or an implied covenant in the golf course” and citing as support for the “oral assurances” method only Knotts Landing Corp. v. Lathem, 256 Ga. 321 (348 SE2d 651) (1986), an “implied covenant” decision). 37 Decided February 21, 2023.

Certiorari to the Court of Appeals of Georgia — 360 Ga. App.

720.

Smith Gambrell & Russell, Leah Ward Sears, Edward D.

Burch, Jr., Edward H. Wasmuth, Jr.; Burr & Forman, John O.

Sullivan, Kevin R. Stone; Dillard Sellers, Julie L. Sellers, Jeffrey S.

Haymore, Randolph B. Russell, for appellant.

Stell Smith & Mattison, John E. Stell, Jr., for appellees.

Miles Hansford & Tallant, Joshua A. Scoggins, K. Stanton

Kincaid III, amici curiae.