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Davis v. Overall

The trial court erred by granting summary judgment to appellee on plaintiffs' nuisance and trespass claims, because plaintiffs owned an easement to enter, care for and maintain the burial plots, and to use and enjoy the plot free from disturbance, but there was evidence that appellee had interfered with the plaintiffs' use and enjoyment of the plot.

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Lamar Davis and Howard Farmer sued Richard Overall for damages in a dispute over a family cemetery located on Overall’s land. Davis and Farmer contended that Overall had interfered with the family’s easement across Overall’s land to and from the cemetery and had trespassed and created a continuing nuisance within the cemetery. The trial court granted Davis and Farmer’s request for a permanent easement within the cemetery’s boundaries and a right of ingress and egress to and from the cemetery. The court granted Overall’s motion for summary judgment on Davis and Farmer’s other claims, including claims of nuisance, trespass, punitive damages, declaratory judgment, injunctive relief, and attorney fees.1 After reviewing the record, we conclude that the trial court erred in granting Overall’s motion for summary judgment on Davis and Farmer’s claims of nuisance, trespass and declaratory judgment and we reverse on those claims. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. This Court applies a de novo standard of review to an appeal from a grant of summary judgment and we view the evidence in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp. , 226 Ga. App. 459 486 SE2d 684 1997.

So viewed, the record shows that Davis, Farmer, and other heirs have continuously maintained the Davis-Busha cemetery since the burials of the six family members interred there. According to Davis, there were never any problems with accessing the cemetery until the property on which the cemetery was located was sold to Overall in 2007.

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