Opinion
18809.
ARGUED JANUARY 12, 1955.
DECIDED FEBRUARY 14, 1955. REHEARING DENIED MARCH 16, 1955.
Complaint for land. Before Judge Hendrix. Fulton Superior Court. September 24, 1954.
J. V. Poole, G. B. Walker, for plaintiff in error.
J. Walter LeCraw, Joseph S. Crespi, contra.
1. Where an easement has been acquired by grant, the doctrine of non-user does not apply, and a more non-use, without further evidence of an intent to abandon such easement, will not constitute an abandonment. Tietjen v. Meldrim, 169 Ga. 678 ( 151 S.E. 349); Owens Hardware Co. v. Walters, 210 Ga. 321 ( 80 S.E.2d 285). Where, as here, the court charged that an easement may be lost by abandonment or forfeited by non-use, and there was no claim of an express grant, as in this case, the error, if any, was not harmful to the movant, as such grant of the easement was in the petitioner's deeds and not in the movant's. The ruling in the Owens Hardware case above might require that the boundary of the petitioner's lot by the alley be considered an express grant of an easement to the alley, which could not be lost by non-use, but none of the deeds in the defendant's chain of title contain any reference to the alley or show the lot as abutting the alley, and hence there is no merit in the 3rd, 4th, 5th, and 6th special grounds, which complain of the charge of the court as not being applicable, since there is no express grant of an easement to the alley in the defendant's chain of title.
2. Special ground 1, complaining that the court failed to give a correct understandable summary of the movant's theory and contentions in the case, is without merit since it is too general, vague, and indefinite to raise any question for determination by this court.
3. The second special ground, complaining of testimony that there was no traveled passageway in the rear of the petitioner's property, is wholly without merit, since the mere fact that the petitioner's deed recites that it is bounded on an alley would not estop him to deny that any alley ever existed.
4. Special ground 7, which complains that the court erred in failing to direct the verdict in favor of the movant is also without merit for the same reason as the general grounds, since the evidence was conflicting and the matter properly submitted to the jury for its consideration and it was ample to support the verdict. For all the foregoing reasons the court did not err in overruling the motion for new trial as amended.
Judgment affirmed. All the Justice concur.
ARGUED JANUARY 12, 1955 — DECIDED FEBRUARY 14, 1955 — REHEARING DENIED MARCH 16, 1955.
This is a suit by Sims Estates, Inc. (the defendant in error here), against John R. Walker (the plaintiff in error), for the recovery of a strip of land 6.8 feet wide and 50 feet in length, which is claimed by the petitioner as being a part of a city lot owned by it and located in Buckhead in Fulton County, Georgia. This is the second appearance of this case in this court. See Sims Estates, Inc. v. Walker, 209 Ga. 534 ( 74 S.E.2d 465). The petitioner's lot is approximately 179 feet by 50 feet, fronting 50 feet on Pharr Road, and bounded on the north side by a 15-foot alley; and its contention is that the defendant is claiming the alley, if an alley ever existed, and 6.8 feet of the north side of its lot. However, the suit is only to recover the 6.8 feet. The defendant's land is a lot approximately 190 feet by 50 feet, lying generally north of the petitioner's property; and both properties are bounded on the west by a 20-foot alley, which is now a street called Bolling Way. Both parties claim under a common grantor, with the petitioner's chain of title commencing June 18, 1912, and the defendant's commencing November 24, 1915.
On the trial of the case much evidence was submitted in the form of oral testimony, documents, photographs, and deeds, and it is conflicting as to the location of the two lots and the alleged alley, if any alley ever existed, both in respect to the location of the lots in respect to each other and to the alleged alley, depending upon which points are used as beginning points in measuring the lots. The defendant's contention is that his lot fronts 50 feet on Buckhead Avenue and runs back a distance of 190 feet, and that the widening and paving of Pharr Road to 50 feet has resulted in the petitioner losing 25 feet off the front of its lot, and that Sims Estates is now claiming 179 feet from the intersection of Pharr Road and Bolling Way instead of measuring 179 feet from the land lot line which is in the center of Pharr Road. The defendant's answer further alleges that the petitioner is claiming this land in order to close the long-established alley between the properties; that he and his predecessors in title have been, under warranty deeds, in continuous, open, exclusive, uninterrupted, and actual possession since 1915, under a claim of right; that, regardless of the suit pending, the petitioner has taken charge of the alley and is now grading same, thereby ruining and destroying it and the defendant's use of the same, and he prays for damages and injunctive relief. The evidence shows that Pharr Road was established as a public road, 50 feet wide, in 1910. The deed from the alleged common grantor in 1912 to the petitioner's predecessor, after stating that the land was in land lot 99 of Fulton County, reads as follows: "Commencing at the west corner of the said lot at the twenty-foot alley [now Bolling Way], leading from Pharr Road to Simms Avenue [now Buckhead Avenue]; thence northeasterly (179) one hundred and seventy-nine feet to a (15) fifteen-foot alley — thence east along said alley (50) fifty feet to a corner; thence south and parallel with the twenty-foot alley a distance of (179) one hundred and seventy-nine feet to formerly Line Street now Pharr Road; thence west along Pharr Road a distance of (50) fifty feet to the (20) twenty-foot alley and starting point." The deed to the defendant's predecessor in 1915 reads as follows: " . . . in land lot ninety-nine (99), commencing at Sussie Spinks' lot, running west fifty (50) feet to a twenty (20) foot alley [now Bolling Way]; thence south one hundred ninety (190) feet, more or less; thence east fifty (50) feet to Sussie Spinks lot; thence back to the beginning point one hundred and ninety (190) feet to Smith Street [now Buckhead Avenue]."
The jury returned a verdict for the petitioner, and the defendant filed a motion for new trial, which was amended by adding seven special grounds. After a hearing and argument, the motion was denied, and the exception here is to this judgment.