Opinion
38153.
DECIDED APRIL 8, 1960.
Complaint. Fulton Superior Court. Before Judge Moore. October 21, 1959.
John L. Lee, Robert P. Johnston, Vester M. Ownby, for plaintiffs in error.
Sheats, Parker Webb, Guy Parker, contra.
The petition in this case alleges facts showing the existence of an easement appurtenant to the plaintiff's land for a roadway across the land of the defendant created by deed, the interference with the plaintiff's use thereof and the obstruction of that roadway by the acts of the defendant, and damage accruing to the plaintiff on account thereof. It was not subject to general demurrer.
DECIDED APRIL 8, 1960.
Charles Grady Drake, Sr., filed suit in Fulton Superior Court against E. R. Atkinson and Nellie V. Nichols. The petition alleged that the defendants had injured and damaged the plaintiff in the sum of $500 by reason of the facts stated therein; that the petitioner is the owner of lot No. 11 in Block "O" of the Lakewood Park subdivision, as shown by a plat attached and by reference made a part of the petition; that Atkinson was, prior to November 8, 1957, the owner of lot 20 in said block and subdivision and that he, on that date, conveyed the same to Nichols; that the said subdivision was developed by C. H. Gullatt Company, who was the common grantor of the parties, and that the said subdivider established the scheme of subdivision and reserved a roadway 20 feet wide along and over the eastern side of the defendant's lot 20, and 30 feet wide across the rear thereof as evidenced by a reservation in its deed to Atkinson; that in the deeds to the purchasers of lots 21, 22, 23, 24 and 25 of said block the developer reserved a roadway 30 feet in width over the rear portion of those lots and a roadway 20 feet wide along the west side of lot 25; that said roadway was established for the benefit of all property owners in the subdivision and particularly the other lot owners whose lots abut said roadway, of which the plaintiff is one; and, that the said roadway is an appurtenance to the plaintiff's lot. The plaintiff alleged that on or about December 20, 1955, the defendant Atkinson wrongfully and illegally placed a barricade across the entrance of said roadway on the eastern side of lot 20 at Pickfair Avenue; that said barricade consisted of a wire fence stretched between steel posts set in concrete with said wire fence running the full length of lot 20 on the eastern side thereof; that said barricade prevented and denied, and continues to prevent and deny, to petitioner access to the said roadway, which roadway permits petitioner to enter the rear portion of his property; and that the barricade constitutes a nuisance which denies petitioner unobstructed access to his property; that petitioner, as a consequence of the maintenance of said barricade, has suffered a substantial depreciation in the value of his property, which prior to the erection of the barricade had a market value of $1,000, and since its erection has a reasonable market value of $500.
The defendants filed general demurrers to the petition and thereafter the plaintiff amended his petition by attaching thereto copies of his deed and copies of the deeds executed by the developer to the defendant Atkinson, and copies of the deeds executed by Gullatt Company to the purchasers of lots 21, 22, 23, 24 and 25. The defendants renewed their general demurrer. The trial court overruled the demurrers, and the exception here is to that judgment.
Reasonably construed, the petition in this case alleges that the plaintiff is the owner of a building lot to which was attached as an appurtenance an easement over the defendant's lot for a roadway; that said roadway was open and in use and that the defendant has wrongfully closed it and that the plaintiff, as the result of the defendant's action, has sustained damages to his realty. "`Relatively to the law of pleading, a cause of action is some particular legal right of the plaintiff against the defendant, together with some definite violation thereof which occasions loss or damage.' Ellison v. Georgia Railroad Co., 87 Ga. 691, 700 ( 13 S.E. 809); City of Columbus v. Anglin, 120 Ga. 785, 790 ( 48 S.E. 318)." Robinson v. Herbst Bros., 63 Ga. App. 738, 740 ( 12 S.E.2d 77). There is no doubt that the petition in this case sets forth a cause of action as against a general demurrer.
While it is true that there is nothing in the plaintiff's deed which mentions or in any way refers to the easement, it is well settled in Georgia that an easement appurtenant passes with the dominant estate although the conveyance thereof is not expressly mentioned in the deed conveying the dominant estate. Stovall v. Coggins Granite Co., 116 Ga. 376 ( 42 S.E. 723); 28 C. J. S 708 et seq., Easements, § 46; 17A Am. Jur. 754, Easements, §§ 150, 151. The reservation of an easement in a deed by which a common grantor conveys a part of his estate is equivalent for the purpose of the creation of the easement to an express grant of the easement by the grantee. O'Barr v. Duncan, 187 Ga. 652 (4) ( 2 S.E.2d 82). While the plaintiff's petition alleges that his lot is a vacant lot and an inference may be drawn therefrom that he was not in actual occupancy thereof at the time the petition was filed, even if these allegations may be construed as showing that the plaintiff was not at the time of the obstruction thereof, and prior thereto, using the easement, this would not be sufficient to defeat his right to recover, since an easement acquired by grant is not abandoned by a mere nonuser without something else evidencing an intent to abandon it. Tietjen v. Meldrim, 169 Ga. 678, 695 ( 151 S.E. 349).
The petition alleges that the defendant erected the fence in question on or about December 20, 1955. The petition was filed on July 5, 1959. The action was not barred by the statute of limitations. Code § 3-1001.
It follows that the judge of the superior court did not err in overruling the general demurrers to the petition as amended.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.