Opinion
27791.
ARGUED MARCH 12, 1973.
DECIDED APRIL 13, 1973. REHEARING DENIED APRIL 25, 1973.
Injunction. Elbert Superior Court. Before Judge Williford.
Lavender Cunningham, Fred F. Cunningham, for appellant.
Heard, Leverett Adams, E. Freeman Leverett, for appellees.
Where, as in the present case, the defendants had no interest in any real property which may have been located between a public street and the plaintiff's real property, it was error to grant a summary judgment which excluded the plaintiff from using such street as a means of ingress and egress to its real property.
ARGUED MARCH 12, 1973 — DECIDED APRIL 13, 1973 — REHEARING DENIED APRIL 25, 1973.
This appeal arises as the result of a dispute as to whether Peachtree Street in Elberton, Georgia, extended to the property line of Southernaire Corporation or stopped one tenth of one foot from such property line. Southernaire Corporation, as the plaintiff in the trial court, contends that the end of the street abuts its property and thus it has a right of ingress and egress from such street to its property while the defendants in the trial court contend otherwise. After hearing, each side filed motions for summary judgments and upon agreement that the court could rule upon such motions without the necessity of a further hearing, and that the court could consider all evidence and exhibits previously presented to the court, the trial court found: "(1) That the evidence as to the status of Peachtree Street, when considered as a whole, shows without contradiction that the deed and plat conveying said street to the City of Elberton, shows said street does not extend to the property of plaintiff (formerly the Comolli property), but stops approximately one foot or more westerly therefrom; that when this conveyance of Peachtree Street to the City of Elberton was made, the grantor thereof purposely intended that the street not extend to what is now plaintiff's property (formerly Comolli property) because of a desire that the then owners of plaintiff's property not be affected thereby. The evidence further conclusively shows that the plat of said street was purposely drawn and prepared by C. M. Rucker, C. E., not to reach plaintiff's property (formerly Comolli property). It, therefore, follows that plaintiff has no right, title or interest therein, and it further appears that plaintiff has acquired no easement or privateway therein in any manner recognized by law.
"(2) Prior to 1970, Peachtree Street did not extend to the property now owned by plaintiff (formerly Comolli property) and an area lying between the easterly end of said street and plaintiff's property was not used as either a public or private way of ingress and egress from said Peachtree Street to plaintiff's property.
"(3) Defendants have and will suffer irreparable injury and damage because of the use of the access road extending from the easterly end of Peachtree Street to plaintiff's property, arising from heavy traffic, including trucks, noise and safety hazards caused thereby.
"The Motion of defendants for Summary Judgment in their favor is granted, and the Motion of plaintiff for Summary Judgment is hereby denied."
The plaintiff appealed from such judgment and enumerates as error (1) the granting of the defendant's motion for summary judgment, (2) the denial of its motion for summary judgment, and (3) the failure to deny the defendant's motion for summary judgment and submit the case to a jury.
1. Where, as in the present case, there is no certificate of immediate review, the second enumeration of error presents no question for decision by this court. See Carroll v. Campbell, 226 Ga. 700 ( 177 S.E.2d 83).
2. The first and third enumerations of error present the same basic question for decision. In 1951 a deed was executed conveying a described tract of land to the predecessor in title of the defendants Middleton. This deed began its description at the corner of the property now owned by the plaintiff and Peachtree Street. Each succeeding deed in the Middletons' chain of title has referred back to such deed, and the metes and bounds of such lot were described, as well as the coterminous landowners. In 1960 a deed conveying Peachtree Street was executed by grantor in the 1951 deed and another conveying Peachtree Street to the City of Elberton. This deed described the land conveyed by courses and distances and contained reference to only one iron pin which was located at the opposite end of the street from the end in dispute. Neither the plat made reference to in such deed, nor the deed made reference to coterminous landowners other than the beginning point where such street intersected with another street. The testimony of the surveyor who prepared such plat in 1960 was that he was instructed by one of the grantors in such deed not to extend such property to the line of the plaintiff's predecessor in title.
Under the decision in Bell v. Redd, 133 Ga. 5 (1) ( 65 S.E. 90), the boundary of the Middleton property did not extend beyond the boundary of Peachtree Street abutting such land, and under numerous decisions of this court exemplified by Carswell v. Sanders, 182 Ga. 251 ( 185 S.E. 282), the description placing the corner of such lot at the point where Peachtree Street abutted the plaintiff's property and describing the land by metes and bounds foreclosed any contention that a strip of land between the end of Peachtree Street and the plaintiff's property was owned by the Middletons.
Inasmuch as the defendants had no right to place the barriers or fences so as to exclude the plaintiff corporation's officers, agents, employees, etc. from entering its property from Peachtree Street, the judgment of the trial court granting the defendants' motion for summary judgment was error, and this is true whether or not some person or persons not parties to this litigation may have such right.
The present litigation does not involve a private way over lands of any of the defendants, but to the contrary, relates to the rights of the defendants to place a barrier at what they contend is the end of a public street so as to preclude the use of such street by the owner of land which abuts at least one point on such street.
Judgment reversed. All the Justices concur.