O.C.G.A. § 44-9-6 (2019)

Annotations

Law reviews. For comment on Aggregate Supply Co. v. Sewell, 217 Ga. 407, 122 S.E.2d 580 (1961), as to nonabandonability of a profit a’prendre, see 14 Mercer L. Rev. 473 (1963).

JUDICIAL DECISIONS ANALYSIS APPLICABILITY ABANDONMENT NONUSE EVIDENCE ILLUSTRATIVE CASES Applicability O.C.G.A. § 44-9-6 applies to a municipal corporation, as well as an individual. Mayor of Savannah v. Bartow Inv. Co., 137 Ga. 198, 72 S.E. 1095, 1911 Ga. LEXIS 359 (1911); Mayor of Savannah v. Barnes, 148 Ga. 317, 96 S.E. 625, 1918 Ga. LEXIS 327 (1918). There is a distinction between corporeal and incorporeal hereditaments; the former cannot be lost by abandonment; but the latter may be extinguished under certain circumstances. Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349, 1930 Ga. LEXIS 8 (1930).

A perfect legal title to the corporeal hereditament cannot be lost by abandonment. Aggregate Supply Co. v. Sewell, 217 Ga. 407, 122 S.E.2d 580, 1961 Ga. LEXIS 471 (1961) (for comment, see 14 Mercer L. Rev. 474 (1963)). Profit a’prendre. - The right to remove sand and gravel, granted by a lease, amounts to the profit a’prendre and not an easement. There is a distinction between a profit a’prendre and an easement, the latter may be lost by abandonment, while the former may not. Aggregate Supply Co. v. Sewell, 217 Ga. 407, 122 S.E.2d 580, 1961 Ga. LEXIS 471 (1961) (for comment, see 14 Mercer L. Rev. 474 (1963)).

PROPERTY Abandonment

Municipal corporation may, by abandonment, relinquish control over street which has been dedicated to it for public use. Kelsoe v. Town of Oglethorpe, 120 Ga. 951, 48 S.E. 366, 1904 Ga. LEXIS 755 (1904). Where prescription to a private way has ripened, title is divested by abandonment, though not by neglect, and the duty to repair continues. Kirkland v. Pitman, 122 Ga. 256, 50 S.E. 117, 1904 Ga. LEXIS 807 (1904). Owner of easement arising from grant, express or implied, does not lose easement by mere nonuse, and nonuse without other evidence of intent to abandon will not constitute abandonment. Smith v. Gwinnett County, 248 Ga. 882, 286 S.E.2d 739, 1982 Ga. LEXIS 725 (1982). Easement acquired by grant not lost unless clear and unequivocal intention to abandon. - An easement of way acquired by a grant will not be lost by a nonuse for any length of time, unless there is clear and unequivocal evidence of an intention to abandon it; when such nonuse is accompanied by acts manifesting a clear intent to abandon, which destroy the object for which the easement was created or the means of its enjoyment, an abandonment will take place. Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349, 1930 Ga. LEXIS 8 (1930). An easement of way acquired by a grant, will not be lost by a nonuse for any length of time, unless there is a clear and unequivocal evidence of an intention to abandon it. Gilbert v. Reynolds, 233 Ga. 488, 212 S.E.2d 332, 1975 Ga. LEXIS 1355 (1975). In a dispute over an easement, although a fence blocked the roadway claimed by the appellees, the evidence did not constitute clear, unequivocal, and decisive evidence of an intent to abandon the easement as one of the appellees testified that the fence could be clipped and unclipped to travel on the easement; the other appellee gave undisputed testimony that the appellees and their family had made use of the easement ever since the appellees’ father conveyed the easements in 1998, including to maintain the water lines that

come from a spring and which provide water to Tract 1 as well as to access the barn/shed on the eastern end of Tract 1. Houston v. Flory, 329 Ga. App. 882, 766 S.E.2d 227, 2014 Ga. App. LEXIS 791 (2014). Abandonment of access to park not established. - Trial court did not err in concluding that the easement for access to the park had not been abandoned because evidence was presented that some residents used the access until the property owner blocked access. Doxey v. Crissey, 355 Ga. App. 891, 846 S.E.2d 166, 2020 Ga. App. LEXIS 397 (2020). Mere nonuse cannot constitute abandonment. - Where an easement has been acquired by grant, a mere nonuse, without further evidence of an intent to abandon it, will not constitute abandonment. Mayor of Savannah v. Barnes, 148 Ga. 317, 96 S.E. 625, 1918 Ga. LEXIS 327 (1918). An easement acquired by a grant cannot be lost by mere nonuse, without further evidence of an intention to abandon. Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349, 1930 Ga. LEXIS 8 (1930). Trial court did not err in granting a directed verdict for the alleged trespasser in finding that platted subdivision road the alleged trespasser was using was a public road as the easement that existed on the road was acquired from the grantor; thus, evidence of nonuse of the road without a showing of an intent to abandon the easement meant the easement had not been abandoned. Hand v. Pettitt, 258 Ga. App. 170, 573 S.E.2d 421, 2002 Ga. App. LEXIS 1375 (2002). Trial court erred by finding that the county abandoned its public use easement in the road, and therefore it erred by granting the trust a temporary injunction to prevent the developer from developing an unpaved portion of the road pursuant to permits issued by the county, because the county’s nonuse of the unpaved portion of the road did not show that it abandoned its easement under O.C.G.A. § 44-9-6 over that segment of the road. Pulte Home Co., LLC v. Juanita M. Aycock Living Trust, 360 Ga. App. 225, 860 S.E.2d 820, 2021 Ga. App. LEXIS 370 (2021). No presumption arises from mere nonuse for time less than required for

perfection by prescription. Gilbert v. Reynolds, 233 Ga. 488, 212 S.E.2d 332, 1975 Ga. LEXIS 1355 (1975). The seeking of permission to use an area formally held through an easement would authorize a jury to conclude that the one seeking the permission had abandoned the easement. Lockard v. Davis, 169 Ga. App. 208, 312 S.E.2d 194, 1983 Ga. App. LEXIS 3027 (1983). Questions of fact remained as to abandonment. - In a dispute over access to a roadway, the trial court erred in granting plaintiff summary judgment enjoining defendant from obstructing the road because questions of fact remained as to abandonment of the roadway leading to plaintiff’s property, which were not properly resolved by the trial court. Pass v. Forestar GA Real Estate Group, Inc., 337 Ga. App. 244, 787 S.E.2d 250, 2016 Ga. App. LEXIS 303 (2016), cert. denied, No. S16C1689, 2016 Ga. LEXIS 830 (Ga. Dec. 8, 2016).

Szalay, 332 Ga. App. 665, 774 S.E.2d 730, 2015 Ga. App. LEXIS 378 (2015). Forfeiture not incurred unless nonuse raises presumption of release. - The right to an easement may be lost by an abandonment or by a forfeiture by a nonuser; but the forfeiture will not be incurred unless a nonuse is for a period sufficient to raise the presumption of a release or abandonment. Mathis v. Holcomb, 215 Ga. 488, 111 S.E.2d 50, 1959 Ga. LEXIS 521 (1959). Mere nonuse for 20 years affords a presumption, though not a conclusive one, of extinguishment, even in cases where no other circumstances indicating an intention to abandon appears; and if there has been in the meantime some act done by the owner of the land charged with the easement, inconsistent with or adverse to the right, a much stronger presumption of extinguishment will arise. Gilbert v. Reynolds, 233 Ga. 488, 212 S.E.2d 332, 1975 Ga. LEXIS 1355 (1975).

Nonuse

Evidence

Easement may be forfeited by owner without the owner’s “absolute refusal” to exercise privileges thereunder. McElwaney v. MacDiarmid, 131 Ga. 97, 62 S.E. 20, 1908 Ga. LEXIS 29 (1908). Where easement is acquired by mere user, doctrine of extinction by mere nonuse may apply. Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349, 1930 Ga. LEXIS 8 (1930). Prescriptive easement abandoned by nonuse. - 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 had pointed to nothing to show that the presumption of abandonment should be rebutted. Albenberg v.

Evidence to establish forfeiture of easement by abandonment or nonuse must be decisive and unequivocal. Gaston v. Gainesville & D.E. Ry., 120 Ga. 516, 48 S.E. 188, 1904 Ga. LEXIS 625 (1904); Tietjen v. Meldrim, 169 Ga. 678, 151 S.E. 349, 1930 Ga. LEXIS 8 (1930); Calfee v. Jones, 54 Ga. App. 481, 188 S.E. 307, 1936 Ga. App. LEXIS 676 (1936). The evidence to establish a forfeiture of an easement by abandonment or nonuse must be decisive and unequivocal; and where the testimony is in dispute as to the facts, the question as to any abandonment is for the jury, in applying to the evidence the law charged by the judge. Moxley v. Adams, 190 Ga. 164, 8 S.E.2d 525, 1940 Ga. LEXIS 424 (1940). Abandonment (as used in O.C.G.A. § 44-9-6) is a mixed question of law and fact. Gaston v. Gainesville & D.E. Ry., 120 Ga. 516, 48 S.E. 188, 1904 Ga. LEXIS 625 (1904); Mayor of Savannah v. Bartow Inv. Co., 137 Ga. 198, 72 S.E. 1095, 1911 Ga. LEXIS 359 (1911). Generally, abandonment is a mixed question of law and fact, which applies to

Evidence (Cont’d) a municipal corporation, as well as to an individual. Hames v. City of Marietta, 212 Ga. 331, 92 S.E.2d 534, 1956 Ga. LEXIS 359 (1956). Whether there has been an abandonment of an easement by the public authority under O.C.G.A. § 44-9-6 is a mixed question of law and fact and is for the jury whenever the evidence is in conflict. Jackson v. Chatham County, 225 Ga. 641, 170 S.E.2d 418, 1969 Ga. LEXIS 594 (1969). Abandonment question for jury. - It would be a question for the jury, under all the facts, to determine whether a right once acquired by a continuous use was subsequently abandoned under O.C.G.A. § 44-9-6 by nonuse. Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7, 60 S.E. 868, 1908 Ga. App. LEXIS 182 (1908). Where the testimony is in dispute as to the facts indicating an abandonment, the determination of the true facts, to which the law of abandonment given in charge by the court is to be applied, is for the jury. Calfee v. Jones, 54 Ga. App. 481, 188 S.E. 307, 1936 Ga. App. LEXIS 676 (1936). Evidence held to show abandonment or forfeiture. - The evidence was held to show that if any easement of way in the streets in controversy ever existed in the purchases of lots in another division of the tract, there had been an abandonment or forfeiture by nonuse under the terms of O.C.G.A. § 44-9-6. Mayor of Savannah v. Bartow Inv. Co., 137 Ga. 198, 72 S.E. 1095, 1911 Ga. LEXIS 359 (1911). There was evidence from which the jury was authorized to find no loss of easement by an abandonment or forfeiture by nonuse under the provisions of O.C.G.A. § 44-9-6. Monroe v. Estes, 139 Ga. 729, 78 S.E. 130, 1913 Ga. LEXIS 582 (1913). Illustrative Cases Easement obtained by prescription runs with land unless forfeiture or abandonment proved. - Where a purchaser of land was allowed the right to build a private way at the purchaser’s own expense, which was used as a means of ingress and egress to the rear of the property and which was kept in repair during

the six or eight years the purchaser occupied the house that the purchaser built on the property, the purchaser obtained an easement running with the land, and the easement passed with the dominant estate to each of successors in title, unless it could be proved that the easement was forfeited or abandoned or that the successors in title to the grantor of the easement took title to the servient estate with no notice, actual or constructive, of the existence of the easement. Mathis v. Holcomb, 215 Ga. 488, 111 S.E.2d 50, 1959 Ga. LEXIS 521 (1959). Easement designated on plat not lost by purchaser of lot by mere nonuse. - Where the owner of land in a city had it surveyed and laid off into lots, caused a plat of the same to be made which referred to a designated strip of land, shown on the plat as an avenue, and being so situated as to afford an outlet from the lots into a public street of the city, and where the owner sold the lots at a public auction, representing that they were sold by the plat, and the purchaser at the sale and the purchaser’s successors in title acquired the right to use this strip as a way to and from the lots, the easement thus acquired by the purchaser and those holding under the purchaser would not be lost by mere lapse of time or nonuse, unless expressly abandoned. Harris v. Powell, 177 Ga. 15, 169 S.E. 355, 1933 Ga. LEXIS 99 (1933). Right to use nonnavigable watercourse lost by discontinuance for time sufficient to infer abandonment. - A right acquired by the public to use a watercourse not navigable may be lost by a discontinuance of such a use for the time sufficient to justify an inference of abandonment under O.C.G.A. § 44-9-6. Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7, 60 S.E. 868, 1908 Ga. App. LEXIS 182 (1908). When bridges constructed on land acquired by easement dismantled, easement abandoned. - When bridges constructed by a county on land on which only an easement was acquired were dismantled by the state, the easement therein was abandoned, since abandonment is conclusively shown by the fact that the steel in the bridges was moved

elsewhere and stored. Stewart County v. Holloway, 69 Ga. App. 344, 25 S.E.2d 315, 1943 Ga. App. LEXIS 74 (1943). An easement across railroad tracks, even if created by an unrecorded

agreement, would not remain valid after 25 years without any use. Central of Ga. R.R. v. DEC Assocs., 231 Ga. App. 787, 501 S.E.2d 6, 1998 Ga. App. LEXIS 561 (1998).

RESEARCH REFERENCES Am. Jur. 2d. 25 Am. Jur. 2d, Easements and Licenses, § 110 et seq. C.J.S. 28A C.J.S., Easements, §§ 117, 124 et seq. ALR. Loss of easement by adverse possession, or nonuser, 1 A.L.R. 884; 66 A.L.R. 1099; 98 A.L.R. 1291; 25 A.L.R.2d 1265; 62 A.L.R.5th 219. Permission or license from owner of servient estate as extinguishing an existing easement, 50 A.L.R. 1295. Misuse of easement, or violation of conditions of its enjoyment, as ground of forfeiture, 78 A.L.R. 1222. Failure or delay or original grantee to assert or exercise right of way by necessity as precluding subsequent assertion or exercise, 133 A.L.R. 1393. Who entitled to land upon its abandonment for railroad purposes, where rail-

road’s original interest or title was less than fee simple absolute, 136 A.L.R. 296. Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644. Commencement and duration of express easement as affected by provision in instrument creating it, 154 A.L.R. 5. Rights and duties of owners inter se with respect to upkeep and repair of water easement, 169 A.L.R. 1147. Abandonment, waiver, or forfeiture of easement on ground of misuse, 16 A.L.R.2d 609. 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. What constitutes abandonment of a railroad right of way, 95 A.L.R.2d 468. Right to maintain gate or fence across right of way, 52 A.L.R.3d 9. What constitutes, and remedies for, misuse of easement, 111 A.L.R.5th 313.