Section inapplicable when owner receives adequate compensation.

- The principles of O.C.G.A. § 44-9-1 are not to be confounded with the principles of sections regulating the establishment of a new or necessary way in any of those cases wherein adequate compensation to the landowner is provided. Hendricks v. Carter, 21 Ga. App. 527, 94 S.E. 807 (1918).

Right of way over land of another may be acquired by one of four methods: (1) by express grant; (2) by prescription, seven years' uninterrupted use through improved lands, or 20 years' use over wild lands; (3) by implication of law, when such right is necessary to the enjoyment of lands granted by the same owner; and (4) by compulsory purchase and sale in the manner prescribed by law. Jones v. Mauldin, 208 Ga. 14, 64 S.E.2d 452 (1951).

Way of necessity by implication of law.

- Right of private way over another's land may arise by implication of law when the right is necessary to the enjoyment of lands granted by the same owner; thus, a way of necessity arises in Georgia by implication of law under O.C.G.A. § 44-9-1 when the common owner sells the dominant estate first and retains the servient estate. DeNapoli v. Owen, 341 Ga. App. 517, 801 S.E.2d 314 (2017).

Absent an adequate remedy at law, equity will protect right to use a private way. Phinizy v. Gardner, 159 Ga. 136, 125 S.E. 195 (1924).

Injunctive relief against the infringement of a private right is well established. Stone Mt. Scenic R.R. v. Stone Mt. Mem. Ass'n, 230 Ga. 800, 199 S.E.2d 216 (1973).

Cited in Neal v. Neal, 122 Ga. 804, 50 S.E. 929 (1905); Hill v. Miller, 144 Ga. 404, 87 S.E. 385 (1915); Tift v. Golden Hwde. Co., 204 Ga. 654, 51 S.E.2d 435 (1949); Wheelus v. Trammell, 204 Ga. 883, 52 S.E.2d 471 (1949); Burton v. Atlanta & W.P.R.R., 206 Ga. 698, 58 S.E.2d 424 (1950); Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269, 58 S.E.2d 553 (1950); Nassar v. Salter, 213 Ga. 253, 98 S.E.2d 557 (1957); Croker v. Lewis, 217 Ga. 762, 125 S.E.2d 50 (1962); Wagnon v. Keith, 222 Ga. 859, 152 S.E.2d 865 (1967); Southern Ry. v. Shealey, 382 F.2d 752 (5th Cir. 1967); Waldrep v. Hall County, 227 Ga. 554, 181 S.E.2d 833 (1971); Swygert v. Roberts, 136 Ga. App. 700, 222 S.E.2d 75 (1975); Riggenbach v. Smith, 144 Ga. App. 24, 240 S.E.2d 299 (1977); Jackson v. Stone, 210 Ga. App. 465, 436 S.E.2d 673 (1993); Howard v. Rivers, 266 Ga. 185, 465 S.E.2d 666 (1996); Mitchell v. Mitchell, 220 Ga. App. 682, 469 S.E.2d 540 (1996); Khamis Enterprises, Inc. v. Boone, 224 Ga. App. 348, 480 S.E.2d 364 (1997); Lanier v. Burnette, 245 Ga. App. 566, 538 S.E.2d 476 (2000); MacGibbon v. Akins, 245 Ga. App. 871, 538 S.E.2d 793 (2000); BMH Real Estate Pshp. v. Montgomery, 246 Ga. App. 301, 540 S.E.2d 256 (2000); Thompson v. McDougal, 248 Ga. App. 270, 545 S.E.2d 701 (2001); Trammell v. Whetstone, 250 Ga. App. 503, 552 S.E.2d 485 (2001); Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709 (2011).

Easement by prescription not acquired where O.C.G.A.

§ 44-9-1 not complied with. - Defendant landowner, which had conveyed parcel to plaintiff landowner's predecessor in title without reserving any easement in deed, did not acquire an easement by prescription where adverse use could not begin until after the severance of the two estates and where the strip of land over which the easement is claimed was owned by the claimant until a time less than seven years prior to bringing of action by the plaintiff landowner seeking to enjoin defendant landowner from the continued use of the strip of land in question. Farris Constr. Co. v. 3032 Briarcliff Rd. Assocs., 247 Ga. 578, 277 S.E.2d 673 (1981).

Creation of easement.

- While notice may subject a purchaser of land to an existing easement even where the easement is not referenced in the deed of conveyance, notice that there is a driveway across purchased property cannot create an easement where none exists. Deas v. Hughes, 264 Ga. 9, 440 S.E.2d 458 (1994).

A conveyance of land accompanied by a plat showing the existence of a rail line on adjacent property did not create an express or implied easement over the rail lines. Macon-Bibb County Indus. Auth. v. Central of Ga. R.R., 266 Ga. 281, 466 S.E.2d 855 (1996).

Where written statement giving permission to go on land contained no legal description, it was, at best, a revocable license which never ripened into an easement because defendant did not expend money preceding use of the road. Lovell v. Anderson, 242 Ga. App. 537, 530 S.E.2d 233 (2000).

Adequate description of easement found.

- Partial summary judgment in favor of the lot owners was affirmed as, although the record did not contain a plat showing property designated as "Area #6," the description in a conveyance to a homeowners' association as "located between Lot No. 77, Lake George, and Pine Avenue, including causeway to the creek, near the railroad bridge, known as the headwaters of the Gress River" disclosed with sufficient certainty the location of the lot owners' easement; moreover, all the parties described the 1.542 acres eventually conveyed to the property owner contesting the easement as "Area # 6." Wynns v. White, 273 Ga. App. 209, 614 S.E.2d 830 (2005).

Because the deed of certain landowners incorporated a recorded plat's reservation of a 1.32 acre strip of the landowners' property to be used for access to the neighbor's property, and because the plat was recorded, the landowners were deemed to have been on notice of that reservation and took title subject to the easement described therein; since there was nothing ambiguous or unclear about the location or the nature of the use of the 1.32 acre strip of land, the trial court did not err by declaring a judgment in favor of the neighboring property owner. Hernandez v. Whittemore, 287 Ga. App. 251, 651 S.E.2d 180 (2007).

Claim of easement of necessity invalid.

- Where defendant's property borders on a public street but the only way to the rear of their building is through a neighbor's property, there can be no claim of an easement of necessity. Greer v. Piedmont Realty Invs., Inc., 248 Ga. 821, 286 S.E.2d 712 (1982).

Necessity based.

- Private way by implication is based on necessity and not convenience; moreover, a reasonable necessity for a way must exist at the time of the severance to support the implication of a way of necessity. DeNapoli v. Owen, 341 Ga. App. 517, 801 S.E.2d 314 (2017).

Word "appurtenances" in a deed only carries easements already existing, and appurtenant to estate granted; it will not include an inchoate prescriptive right over the land of another. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953).

Way appurtenant cannot be created without a dominant, as well as a servient, estate. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953).

Railroad tracks "improved land."

- If a railroad was constructed and the tracks were made to cross a private way by means of a trestle, the land of the railroad company at such a point of intersection was "improved land" within the meaning of O.C.G.A. § 44-9-1, and the period of prescription would be seven years. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516, 85 S.E. 863, 1917A Ann. Cas. 497 (1915).

"Wild lands" used in contradistinction to "improved lands."

- "Wild lands," as used in O.C.G.A. § 44-9-1, is evidently used in contradistinction to the descriptive words "improved lands." Watkins v. Country Club, 120 Ga. 45, 47 S.E. 538 (1904).

"Wild" land located separate and apart from cultivated lands.

- The land which O.C.G.A. § 44-9-1 designates as "wild" is that which is located separate and apart from lands which are partly in cultivation. Smith v. E.B. Burney Constr. Co., 231 Ga. 772, 204 S.E.2d 93 (1974).

"Wild land" is segregated tract of land remaining, as it were, in state of nature, unenclosed, and with no indicia pointing to use by the owner. Smith v. E.B. Burney Constr. Co., 231 Ga. 772, 204 S.E.2d 93 (1974).

Party setting up prescription claim required to strictly follow law.

- While a right of private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands, where a private way is claimed by prescription, the party setting up such a claim must be strictly within the requirements of the law. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967).

Use may originate in permission, yet ripen by prescription.

- Possession must be adverse in order to form the basis for prescription. A notable exception exists, however, in the case of private ways. The use may originate in permission, and yet may ripen by prescription. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944); Ponder v. Williams, 80 Ga. App. 145, 55 S.E.2d 668 (1949).

Tenant cannot originate adverse user in landlord's favor where easement not included in lease.

- A tenant cannot originate an adverse user in landlord's favor where the lease does not expressly or impliedly include the easement; use by the tenant inures to the landlord's benefit if it expressly or impliedly includes the easement. Olsen v. Noble, 209 Ga. 899, 76 S.E.2d 775 (1953).

Tenant in common may acquire prescriptive rights.

- A limited partner, as a tenant in common of the real estate of the partners, may acquire prescriptive rights even though one of the other tenants in common might be barred from acquiring such prescriptive rights because of that tenant's purported permissive possession. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967).

One tenant cannot deprive other tenants from prescribing adversely.

- One tenant in common who is in possession of jointly owned property cannot deprive the other tenants in common who are also in possession thereof from prescribing adversely against a third party. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967).

Prescriber acquires private way by continuous use for statutory period.

- If a private way was less than 15 (now 20) feet in width, and the prescriber kept it in repair and used it as such continuously for the statutory period required by O.C.G.A. § 44-9-1, the prescriber would acquire a private way by prescription. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516, 85 S.E. 863, 1917A Ann. Cas. 497 (1915).

One of the prime requisites to title by prescription of a private way is that the same private way be used the entire period necessary to establish the prescriptive right. Fulford v. Fulford, 228 Ga. 772, 187 S.E.2d 867 (1972).

Use, to constitute prescriptive right, must be uninterrupted.

- The use of a private way through the improved lands of another for a period of seven years, to constitute a prescriptive right, must be shown to have been uninterrupted to come within the terms of O.C.G.A. § 44-9-1. Puryear v. Clements, 53 Ga. 232 (1874).

Prescription arises notwithstanding fact prescriber knows land is another's property.

- A prescription under O.C.G.A. § 44-9-1 may arise notwithstanding the fact that the prescriber may know that the land over which the individual undertakes to prescribe is the property of another. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516, 85 S.E. 863, 1917A Ann. Cas. 497 (1915).

Prescriber must give notice.

- It is fundamental that prescription is to be strictly construed, and that the prescriber must give some notice, actual or constructive, to the one against whom the prescriber intends to prescribe. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944); Ponder v. Williams, 80 Ga. App. 145, 55 S.E.2d 668 (1949).

Use alone is insufficient to acquire prescriptive title under O.C.G.A. § 44-9-1. An owner's acquiescence in the mere use of the owner's road establishes, at most, a revocable license. To establish a prescriptive easement over the private property of another pursuant to O.C.G.A. § 44-9-1, it is necessary to show that the owner was given notice that the user intended to appropriate it as the user's own. Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360, 434 S.E.2d 477 (1993).

Easement and right of way.

- In a dispute over a landowners' patio built on a neighbor's land and use of a roadway over the neighbor's land, the patio did not create a prescriptive right of way as the patio was not a road or path and the bottom part of the road was not taken by adverse possession as mere use was not notice of an adverse claim; however, as the landowner might have met the time and notice requirements to obtain a right of way by prescription for the top part of the road, summary judgment was not proper on that point. Moody v. Degges, 258 Ga. App. 135, 573 S.E.2d 93 (2002).

When use originates by permission, prescription runs upon notification of changed position.

- When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that the user has changed position from that of a mere licensee to that of a prescriber. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944); Ponder v. Williams, 80 Ga. App. 145, 55 S.E.2d 668 (1949).

One who seeks to ripen an absolute right to the use of a private way by prescription, instead of obtaining it by express grant, must, when that individual enters with the consent of the owner, bring some affirmative notice to the owner, by making repairs or otherwise, of intention to prescribe through seven years' use. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).

Use of a trail.

- Where neighbor's use of a trail across private property was permissive, and there was no showing of any adverse use, a private way by prescription was not established. Douglas v. Knox, 232 Ga. App. 551, 502 S.E.2d 490 (1998).

Use by members of the public alone is insufficient to acquire prescriptive title. It must be kept open and in repair. Tribble v. Mayor of Forsyth, 225 Ga. 204, 167 S.E.2d 142 (1969).

Notice by repair requirement.

- The crux of the requirement for repairs lies not in the actual effectuation of repairs by the prescriber but in the notice of adverse use the performance of such repairs would give to the property owner. The importance of this "notice by repair" requirement is best illustrated in situations where the initial use of the private way was permissive. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594, 420 S.E.2d 39 (1992).

Showing repairs is required in order to give notice to the landowner that the prescriber's use of a road is adverse and not permissive. Chota, Inc. v. Woodley, 251 Ga. 678, 309 S.E.2d 132 (1983).

Prescriber must show that way kept open and in repair during statutory period.

- In order to set up a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the prescriber has kept it open and in repair during this period. Rogers v. Wilson, 171 Ga. 802, 156 S.E. 817 (1931).

The right of a private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands, but in order to set up this prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the prescriber has kept it open and in repair during this period. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).

In order for one to take or keep another's land as a road for that person's private use, the person should be compelled to keep it open and in repair. Keeping it open and working it would be the best evidence of that person's intention to appropriate it for a road, and would put the owner upon notice that the person did intend to appropriate it. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944); Ponder v. Williams, 80 Ga. App. 145, 55 S.E.2d 668 (1949).

In order to set up a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 20 feet in width, and that it is the same number of feet originally appropriated, but also that the prescriber has kept it open and in repair during this period. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967).

Passive keeping in repair is notice, but inaction will not suffice; the expression "keeping in repair" originated in an age when private ways were unpaved and of necessity had to be repaired in order that the use thereof might be continued, and was then the equivalent of action and affirmative notice of an intention to prescribe, even where the use originated in consent. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).

If repairs made by landowner's permission, no prescriptive right acquired.

- Where the landowner was merely passive and made no objection to the use of and repairing the road, then such use and repairs thereon would be the proper basis for obtaining a prescriptive right to the road. But, if the use of and the repairs made on the road were by the permission of the landowner, then the plaintiff would not acquire a prescriptive right or title to the road. Burnum v. Thomas, 71 Ga. App. 690, 31 S.E.2d 925 (1944).

Evidence of use by previous owners.

- Where plaintiff filed a petition in the probate court to remove an obstruction from a private way, the mere fact that the property may not have been used at the time defendant purchased it did not render it "wild land" since evidence of use by the previous owners remained. Henderson v. Cam Dev. Co., 190 Ga. App. 199, 378 S.E.2d 495 (1989).

Use of driveway and railroad crossing.

- Trial court properly awarded a property owner compensatory damages in an inverse condemnation suit against the Georgia Department of Transportation (DOT) because the property owner established the acquisition of a prescriptive easement over the driveway and railroad crossing at issue and, thus, had a compensable property interest as a result of DOT closing the driveway. Ga. Dep't of Transp. v. Jackson, 322 Ga. App. 212, 744 S.E.2d 389 (2013).

Failure to establish prescriptive rights.

- Trial court properly granted summary judgment to a neighbor in a trespass action that involved use of a roadway to gain access to a marsh area as the defending neighbors failed to show prescriptive rights to the roadway were obtained since there was no evidence in the record indicating that the defending neighbors maintained the roadway during any seven year period in any manner; the record established that the roadway was too wide to function as a private right of way; and even if the defending neighbors had obtained a parol license to use the roadway, such license was still revocable. Warner v. Brown, 290 Ga. App. 510, 659 S.E.2d 885 (2008).

In a declaratory judgment action brought by adjoining landowners seeking rights to access an undeveloped lot in a subdivision for use as a soccer field, the trial court properly granted summary judgment to the property owners who had terminated the access and use of the adjoining landowners to the field. There existed no express easement to grant the adjoining landowners access, no dedication of the field was established for public use, the treatment of the field for fire ants was merely maintenance, and since the adjoining landowners had previously used the lot with permission, no prescriptive rights were established. De Castro v. Durrell, 295 Ga. App. 194, 671 S.E.2d 244 (2008).

Evidence of easement must be shown.

- Grant of a declaratory judgment and injunctions to the sellers was reversed because at the time that the buyers purchased Lot 2 from the sellers, the sellers failed to expressly retain an easement over Lot 2 and no way of necessity existed at the time of the sale to the buyers; thus, there was no easement by implication. DeNapoli v. Owen, 341 Ga. App. 517, 801 S.E.2d 314 (2017).

When way legally obtained and continued for statutory period, right becomes absolute.

- When the use of a private way has been legally obtained and is continued as long as seven years, of which the owner has had six months' knowledge without moving for damages, the right of use becomes absolute, and the owner is barred from claiming damages. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).

Landowner acquires right to accumulated water where dam creating pond exists more than 20 years.

- Where a dam on a lower riparian owner's property creating a pond on the upper riparian owner's property was in existence for more than 20 years, the lower riparian owner lost his right to receive the natural flow of water from the upper riparian owner and the latter acquired the right to maintain accumulated water on his land. Brown v. Tomlinson, 246 Ga. 513, 272 S.E.2d 258 (1980).

Prescriptive easement abandoned.

- Defendants were entitled to summary judgment on the plaintiff's claim for a prescriptive easement because the undisputed evidence showed that the plaintiff abandoned any prescriptive easement as the plaintiff's own evidence was that the plaintiff and the plaintiff's family had not used the defendants' tract to access the plaintiff's property at all since July 13, 1994, which was well beyond the seven-year period that would generally raise a presumption of abandonment; and the plaintiff pointed to nothing to show that the presumption of abandonment should be rebutted. Albenberg v. Szalay, 332 Ga. App. 665, 774 S.E.2d 730 (2015).

Prescriptive rights-of-way awarded.

- Where the evidence showed that defendant's predecessor-in-title never prevented the public from using the roads, and that plaintiffs never sought permission to do so, the repairs were extensive enough to put the owner on notice that others were using the road. Therefore, the landowners were required to remove obstructions from the private road and the plaintiffs were awarded prescriptive rights-of-way. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594, 420 S.E.2d 39 (1992).

Showing required to sustain application for removal of obstructions from private way based upon prescription.

- To sustain an application for the removal of obstructions from an alleged private way, the right to which is based upon prescription by seven years' use, it is essential that the applicant show not only that the applicant has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the applicant has kept it open and in repair during this period. First Christian Church v. Realty Inv. Co., 180 Ga. 35, 178 S.E. 303 (1934).

In a proceeding for the removal of an obstruction from a private way, a prescriptive right to use which the applicant claims to have acquired under O.C.G.A. § 44-9-1, it is necessary, to sustain this application, to show not only that the applicant has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20 ) feet in width, and that it is the same number of feet originally appropriated, but that the applicant has kept it open and in repair during this period. Scarboro v. Edenfield, 58 Ga. App. 619, 199 S.E. 325 (1938).

Because the record contained no evidence that a neighboring landowner's predecessor in interest, or its agents, used the road continuously for at least 20 years, the predecessor did not acquire a private way by prescription and, hence, the neighbor lacked any private way by prescription over a landowner's property to clear timber and remove barbed wire from that roadway without committing a trespass. Norton v. Holcomb, 285 Ga. App. 78, 646 S.E.2d 94 (2007), cert. denied, No. S07C1221, 2007 Ga. LEXIS 654 (Ga. 2007).

Every essential requisite must appear.

- Before one can assert a way of necessity over the land of another, every essential requisite to such a right must affirmatively appear. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967).

Need must exist at time of sale.

- A reasonable necessity for a way must exist at the time of the severance to support the implication of a way of necessity. Bruno v. Evans, 200 Ga. App. 437, 408 S.E.2d 458, cert. denied, 200 Ga. App. 895, 408 S.E.2d 458 (1991).

Implication that grantor conveys means of access to otherwise inaccessible land.

- At common law, where the grantor conveyed land otherwise inaccessible, there was of necessity an implication that the grantor had unintentionally omitted to convey a means of access thereto. This necessary implication entitled the land-locked grantee to a way out to whatever public or private roads furnished access to the original tract, in the laying out of which due regard, of course, had to be had to the convenience of the grantor. Such ways by implication are still recognized in this state by O.C.G.A. § 44-9-1. Gaines v. Lunsford, 120 Ga. 370, 47 S.E. 967, 102 Am. St. R. 109 (1904).

Where A owns a tract of land and conveys by deed to B a portion of the land, and the only means of ingress and egress that B has to the public road is a private way then in existence over the land of A, though no mention is made in the deed as to the right of B to use the way, an implication arises that A had inadvertently omitted to convey a means of access, and entitles the land-locked grantee to use the private way across the land of the vendor. Such a way is necessary for the use and enjoyment of the granted land enclosed by other lands of the grantor, and is an implied easement which runs with the granted land. Burk v. Tyrrell, 212 Ga. 239, 91 S.E.2d 744 (1956).

Claim not allowed when one has way of own.

- One is not allowed to claim a road over another's land as a way of necessity when one has, or can have, such a way over own land. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967).

Property accessible only through easement.

- In a dispute over a driveway easement between a landowner and a couple, the trial court properly granted the landowner an interlocutory injunction. Even if the landowner's deed had not incorporated by reference a plat that showed the easement, it was critical that the landowner's property could be accessed only through the easement, which gave rise to an easement by implication. Haygood v. Tilley, 295 Ga. App. 90, 670 S.E.2d 800 (2008), cert. denied, No. S09C0581, 2009 Ga. LEXIS 187 (Ga. 2009); cert. denied, 558 U.S. 1123, 130 S. Ct. 1077, 175 L. Ed. 2d 903 (2010).

Way of necessity arises when common owner sells dominant estate first and retains servient estate. The common owner is impliedly deemed to have granted an easement to pass over the subservient estate. Hasty v. Wilson, 223 Ga. 739, 158 S.E.2d 915 (1967).

If the common owner sells the servient estate first, the common owner has deeded everything within power to deed and retains no easement in the servient estate. Therefore, when the common grantor subsequently deeds the dominant estate to a third party, the third party can obtain no higher interest than that of the grantor and receives no easement over the servient estate. Bruno v. Evans, 200 Ga. App. 437, 408 S.E.2d 458, cert. denied, 200 Ga. App. 895, 408 S.E.2d 458 (1991).

Where owner with plat sells subdivided lots, purchasers acquire easement shown on plat.

- Where the owner of property has it surveyed, marked off, and subdivided into streets, lots, and alleys, has a plat drawn showing the location of the same, records the plat and thereafter sells the lots to various purchasers, giving deeds thereto which refer to the plat and, in describing the location of the lots sold, refer to the streets and alleys shown on the plat as part of the boundaries thereof, the purchasers acquire a perpetual and indefeasible easement over such streets and alleys as a means of ingress and egress to their lots, which cannot be forfeited or abandoned by a mere nonuser or failure for a long period of time to open and improve such streets or alleys, and this is true whether such streets and alleys are ever formally dedicated or accepted by public authority as public streets or alleys or not. Barnes v. Cheek, 84 Ga. App. 653, 67 S.E.2d 145 (1951).

When a developer sells lots according to a subdivision plat, which has a lake area designated on it, the purchasers acquire an irrevocable easement in that park, with which the developer may not interfere. Higgins v. Odom, 246 Ga. 309, 271 S.E.2d 211 (1980).

Way necessary runs with granted land.

- A way necessary for the use and enjoyment of granted land enclosed by other land of the grantor is an implied easement which runs with the granted land, and passes not only to the immediate but subsequent grantees. Calhoun v. Ozburn, 186 Ga. 569, 198 S.E. 706 (1938); Jones v. Mauldin, 208 Ga. 14, 64 S.E.2d 452 (1951).

Whether an easement is created by express grant or by implication, once the location becomes fixed, the same rule controls relocation issues, so long as the grant contains no conditions or reservations. Herren v. Pettengill, 273 Ga. 122, 538 S.E.2d 735 (2000).

Proof inadequate for determination.

- Trial court erred in granting summary judgment, pursuant to O.C.G.A. § 9-11-56, to a property owner who sought an easement by implication of law pursuant to O.C.G.A. § 44-9-1 over adjoining property owners' land, as the record was insufficient to support such a determination; the parties' accounts of how the land was divided upon foreclosure from the original grantor differed greatly and there were no deeds, deed assignments, dates, or foreclosure information provided in the record in order to properly determine if such an easement was created. Boyer v. Whiddon, 264 Ga. App. 137, 589 S.E.2d 709 (2003).

Implied easement not established.

- Implied easement for a driveway leading to an owner's home across the neighbors' property was not established because access to the owner's home across the neighbors' property was unnecessary, but merely convenient, and because the owner's deed made no mention of a plat allegedly relied on by the owner or a right of way bordering the property, and the plat itself was not recorded. Eardley v. McGreevy, 279 Ga. 562, 615 S.E.2d 744 (2005).

In determining when a common owner had conveyed land to the defendants and to another landowner, the trial court erred in using the date of recording, not the date of the conveyance; thus, no implied easement of necessity could exist across the defendants' property for the benefit of the other landowner, and when the common owners sold the property to the other landowner they no longer owned the land now belonging to the defendants, and thus could not convey an easement across land in which they owned no interest. Burnette v. Caplan, 287 Ga. App. 142, 650 S.E.2d 798 (2007).

Owner of property adjacent to a bankruptcy debtor's private airport did not have an implied easement of necessity to use the airport since the owner had ingress and egress to the owner's property by use of driveways and roads not owned by the debtor. Flyboy Aviation Props., LLC v. Franck, 501 Bankr. 808 (Bankr. N.D. Ga. 2013).

Am. Jur. 2d.

- 25 Am. Jur. 2d, Easements and Licenses, § 13 et seq.

C.J.S.

- 28A C.J.S., Easements, §§ 1, 21, 15, 39 et seq., 52 et seq., 145 et seq., 160 et seq. 37 C.J.S., Frauds, Statute of, § 63.

ALR.

- Implied easement upon severance of tract where building is near or encroaches upon the dividing line, 9 A.L.R. 488; 41 A.L.R. 1210; 53 A.L.R. 910.

Nature and extent of right granted by contract for use of wall or roof for advertising purposes, 10 A.L.R. 1108; 119 A.L.R. 1523.

Permission or license from owner of servient estate as extinguishing an existing easement, 50 A.L.R. 1295.

Rule of visible easements as applied to easement of light or air, 56 A.L.R. 1138.

Implied easement in respect of drains, pipes, or sewers upon severance of tract, 58 A.L.R. 824.

Easement by prescription for use of land near boundary line, 58 A.L.R. 1037.

May right of way be appurtenant where the servient tenement is not adjacent to the dominant, 76 A.L.R. 597.

Change from street cars to motorbuses as affecting rights as between street railway companies and abutting owners or owners across whose property the company has a right of way, 102 A.L.R. 391.

Locating easement of way created by a grant which does not definitely describe its location, 110 A.L.R. 174.

Enlargement of easement by use for purpose or in a manner other than that specified in the grant, 110 A.L.R. 915.

Adoption as period of prescription for easement the period prescribed by statute of limitations with reference to adverse possession as including condition of color of title or right or other conditions imposed by that statute, 112 A.L.R. 545.

Right of owner of easement of way to make improvements or repairs thereon, 112 A.L.R. 1303.

Agreement in respect of water rights in stream as creating a mere personal obligation, covenant running with the land, or an easement, 127 A.L.R. 835.

Implied easement, upon division of tract, in respect of railroad spur or branch or siding, 138 A.L.R. 779.

Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644.

Acquisition of easement or other property right by prescription, predicated upon acts amounting to a private nuisance, 152 A.L.R. 343.

Type of vehicle or mode of travel permissible on express easement of way created in limited terms, 156 A.L.R. 1050.

Roadway or pathway used at time of severance of tract as visible or apparent easement, 164 A.L.R. 1001.

Easement by prescription: presumption and burden of proof as to adverse character of use, 170 A.L.R. 776.

Right of owner of easement to alter its use in such a way as to deprive servient estate of an incidental benefit, 172 A.L.R. 193.

Easements or privileges of tenant of part of building as to other parts not included in lease, 24 A.L.R.2d 123.

Maintenance, use, or grant of right of way over restricted property as violation or restrictive covenant, 25 A.L.R.2d 904.

Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way, 28 A.L.R.2d 409.

Power of executor to create easements, 44 A.L.R.2d 573.

Conveyance of land as bounded by road, street, or other way as giving grantee rights in or to such way, 46 A.L.R.2d 461.

Foreclosure of mortgage or trust deed as affecting easement claimed in, over, or under property, 46 A.L.R.2d 1197.

Easement by prescription in artificial drains, pipes, or sewers, 55 A.L.R.2d 1146.

Extent and reasonableness of use of private way in exercise of easement granted in general terms, 3 A.L.R.3d 1256.

Easements: way by necessity where property is accessible by navigable water, 9 A.L.R.3d 600.

Right to maintain gate or fence across right of way, 52 A.L.R.3d 9.

Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.

What constitutes unity of title or ownership sufficient for creation of an easement by implication or way of necessity, 94 A.L.R.3d 502.

Way of necessity over another's land, where a means of access does exist, but is claimed to be inadequate, inconvenient, difficult, or costly, 10 A.L.R.4th 447.

Way of necessity where only part of land is inaccessible, 10 A.L.R.4th 500.

Location of easement of way created by grant which does not specify location, 24 A.L.R.4th 1053.

Locating easement of way created by necessity, 36 A.L.R.4th 769.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.

What constitutes, and remedies for, misuse of easement, 111 A.L.R.5th 313.