O.C.G.A.

O.C.G.A. § 44-9-2 (2019)

Acquisition of easement of light and air

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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A right to an easement of light and air passing over another’s land through existing lights or windows may not be acquired by prescription; but, when a person sells a house and the light necessary for the reasonable enjoyment thereof is derived from and across adjoining land belonging to such person, the easement of light and air over such vacant lot shall pass as an incident to the house sold as being necessary to the enjoyment thereof.

History

Civil Code 1895, § 3046; Civil Code 1910, § 3618; Code 1933, § 85-1201. History of Section. This Code section is derived from the decisions in Turner v. Thompson, 58 Ga.

268 (1876) and Thompson v. Turner, 69 Ga. 219 (1881).

Annotations

Law reviews. For comment on Hornsby v. Smith, 191 Ga. 491, 13 S.E.2d 20 (1941), see 3 Ga. B.J. 61 (1941).

JUDICIAL DECISIONS Easement is acquired by implied grant and is based upon necessity, and when the necessity ceases, the easement ceases. S.A. Lynch Corp. v. Stone, 211 Ga. 516, 87 S.E.2d 57, 1955 Ga. LEXIS 372 (1955). Section applicable to lease of adjoining lot. - The principle O.C.G.A. § 44-9-2 states is equally applicable to a case where the owner of two adjoining lots leases one upon which there is a dwelling house dependable upon a window overlooking the adjoining lot for light and air. Indeed, the reason for the rule is more cogent in a case of tenancy than of purchase. Darnell v. Columbus Show-Case Co., 129 Ga. 62, 58 S.E. 631, 1907 Ga. LEXIS 307 (1907). One who subsequently rends adjoining land is invested with no greater privileges than landlord, and is liable to neighbor tenant in damages

resulting from interference with the latter’s implied easement. Darnell v. Columbus Show-Case Co., 129 Ga. 62, 58 S.E. 631, 1907 Ga. LEXIS 307 (1907). Damages recoverable for obstruction. - Ordinarily the damage recoverable is the depreciated rental value of the tenement; but if the instrumentality which obstructs the light and air is so constructed as to project rain through the window of the tenement to the injury of the tenant’s bedroom furnishings and to personal discomfort, and this is done with the view of causing the tenant to abandon lease, punitive damages may be allowed. Darnell v. Columbus Show-Case Co., 129 Ga. 62, 58 S.E. 631, 1907 Ga. LEXIS 307 (1907). It is error to enjoin the building of a house or a lot because the building would obstruct the light and air from a church. Smyth v. Nelson, 135 Ga. 96, 68 S.E. 1032, 1910 Ga. LEXIS 422 (1910).

RESEARCH REFERENCES Am. Jur. 2d. 1 Am. Jur. 2d, Adjoining Landowners, § 90 et seq. C.J.S. 2 C.J.S., Adjoining Landowners, §§ 6874. 28A C.J.S., Easements, §§ 51, 85, 87, 111, 121, 151. ALR. Implied easement of light and air over private alley or right of way, 9 A.L.R. 1634. Interference with easement of light, air, or view by structure in street or highway

as ground for injunction at instance of abutting owner, 40 A.L.R. 1321. Permission or license from owner of servient estate as extinguishing an existing easement, 50 A.L.R. 1295. Easement of view from public street, 90 A.L.R. 793. Right to injunction to protect easement of light and air, 93 A.L.R. 1180. Location of easement of way created by grant which does not specify location, 24 A.L.R.4th 1053.

Notes of Decisions

Cited in 3 cases, 1985–2011 · leading case: Weinstock v. Novare Grp., Inc., 710 S.E.2d 150 (Ga. Ct. App. 2011).

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Weinstock v. Novare Grp., Inc., 710 S.E.2d 150 (Ga. Ct. App. 2011). · cites it 10× “This claim rests upon the theory that Novare violated their implied easement rights under OCGA § 44-9-2 6 and common law by construction of The Atlantic.”

Savannah Jaycees Found., Inc. v. Gottlieb, 615 S.E.2d 226 (Ga. Ct. App. 2005). · cites it 4× “OCGA § 44-9-2, the statute cited by the plaintiffs, is inapplicable because an easement to light and air thereunder is recognized only upon establishment of certain facts which the plaintiffs have failed to show.”

Goddard v. Irby, 335 S.E.2d 286 (Ga. 1985). · cites it 2× “OCGA § 44-9-2 provides as follows: “A right to an easement of light and air passing over another’s land through existing lights or windows may not be acquired by prescription; but, when a person sells a house and the light necessary for the reasonable enjoyment thereof is…”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.