Family or not… get it in writing.
Posted in Georgia Supreme Court decisions on February 17, 2020
Floyd v. Chapman (A19A2137)
Court of Appeals of Georgia
January 16, 2020
Disputes about land transfers often involve families and the failure of individuals to make clear what is being given exactly because it is family. It is unsurprising that when transferring a piece of property to a stranger, one exercises a high level of care. But details can go unspoken when one gifts a piece of property to a family member. In the present case, the facts don’t indicate precisely what was in the minds of the people involved when one family member gave property to another, but the lack of clarity in this transfer led to a lawsuit down the road (pun intended).
One man’s logging road is another man’s driveway
Originally, a single parcel of land in Dawson County was owned by Patricia Floyd. She gifted 15 acres of this parcel to her step-son Marshall Floyd and his wife (the Floyds), in 2006. The Floyds built a house on the property, which previously had no structures on it. The Floyds began to use an old logging road that ran across their property, as well as through the remaining portion of Particia Floyd’s parcel. They improved the road to act as a driveway and installed a gate. They also asked for and received an easement from Patricia for the utility company to install underground lines to their new home. However, they didn’t get explicit permission to use her land for their driveway (and, note that their own property did have frontage on a road — they just chose instead to use the logging road to access a road to their property).
Patricia was aware of the use of the driveway, and visited the house, but she said that she had presumed that the driveway was entirely on the Floyd’s property, not her own.
In 2014, Patricia let the Floyds know that she intended to sell the remainder of the parcel, and the Floyds then asked her for an easement for use of the driveway. Patricia never responded to this request — one presumes that she didn’t want to reduce the value of the property she was trying to sell, but this is speculation. (Despite the fact-heavy aspect of most property disputes, there are often wide areas for guessing on people’s intentions or actual knowledge.)
The Undisputed Path: to Court
In 2017 the remaining part of the parcel was conveyed to Chapman, the Defendant in this lawsuit (he also filed a counterclaim), by a limited warranty deed, which provided that “it was subject to all easements for roads and utilities in use or of record.” Chapman intended to use the driveway for logging, and although the parties tried to work out an agreement, they couldn’t: Chapman’s intended use conflicted with the Floyds’ and hence this case.
The Floyd’s asked the trial court to recognize that they had obtained a private right of way over (now) Chapman’s property by OCGA § 44-9-1. Chapman then counterclaimed for trespass and an injunction to prevent the Floyds from using the driveway, both for travel and for the underground utility lines.
Wild or Improved?
The Floyds’ argument is that a prescriptive right of way was established by their use of the driveway for entry/exit because Patricia had knowledge of this use. The Trial Court disagreed, and the decision rested on what kind of land the driveway was on — was the land wild or was it improved? The type of land has a say in what it takes to create a prescriptive right of way. The Trial Court decided that the land was wild, meaning that the land is “that which is located separate and apart from lands which are partly in cultivation. It is a segregated tract of land, remaining, as it were, in a state of nature, un[e]nclosed, and with no indicia pointing to use by the owner.” (Hopkins v. Roach, 127 Ga. 153). To establish a right of way on wild land the Floyds would have had to have met the statutory requirements for 20 years, while on unimproved land, the requirement is only 7 years.
The distinction in length of time relates the fact that a landowner is more likely to notice an unauthorized use of his or her land if the land is “unimproved” rather than “wild,” since use of the latter is less likely to be noticed. That is, a homeowner has less responsibility for noticing another’s use of his or her land if the land is more remote, less easy to access, more wild.
Having decided that the land was wild, the Trial Court proceeded to grant Chapman’s trespass claim and further required the Floyds to remove their gate. The Floyds’ appealed.
The Court of Appeals faced three questions: 1) Was the determination that the land was wild correct? 2) Did the Floyds have a prescriptive easement? 3) Was the order to disallow use of the driveway, and require removal of the gate, correct?
The Court of Appeals found no error in fact or law to overturn the decision that the land was wild. No evidence presented at trial showed anything other than that the land was isolated, uncultivated, and rarely visited. Once the Court of Appeals affirmed that the land was wild, the other two questions were easily answered: there was no easement, since the Floyds hadn’t occupied the property for 20 years as required by wild lands, and since there was no easement, their use of the driveway and gate were trespasses against Chapman’s property.
Ultimately we do not know whether the Floyds didn’t get an easement to use the driveway was due to a failure to communicate with Patricia Floyd, if Patricia never intended them to have that usage over the remainder of the property, or something else. Family matters are often clouded by obscurity to the outsider. What is clear is that, the Floyds could have avoided all of the trouble by proceeding step-by-step, and before improving the gravel road for their use, gotten the necessary easement. That failing, they should instead have built a driveway fully on their own property: to the available road that fronted it.