Burnette v. Caplan

The defendants did not have a servient estate, since the owners of the original tract of land from which the plaintiff and the defendants bought their parcels no longer owned the land belonging to defendants when they sold the property to plaintiff.

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Sarah Burnette and other family members collectively “Burnette” appeal from the trial court’s order holding that Eva Caplan had an implied easement of necessity over Burnette’s property. Because the record shows that no servient or dominant estates were created when the original tract of land was divided, the trial court erred in finding there was an implied easement. Accordingly, we reverse. This case arose when Caplan filed a petition for declaratory judgment, injunction, and damages, after Burnette informed her that she intended to close off the road which Caplan used to reach her property. The case went to a bench trial on the sole issue of whether Caplan had an implied easement of necessity through Burnette’s property.1

OCGA § 44-9-1 provides: The right of private way over another’s land may arise from an express grant, from prescription by seven years’ uninterrupted use through improved lands or by 20 years’ use through wild lands, by implication of law when the right is necessary to the enjoyment of lands granted by the same owner, or by compulsory purchase and sale through the superior court in the manner prescribed by Article 3 of this chapter. A way of necessity arises in this State by implication of law under Code § 85-1401 currently OCGA § 44-9-1 when the common owner sells the dominant estate first and retains the servient estate. The common owner is impliedly deemed to have granted an easement to pass over the servient estate. However, if the common owner sells the servient estate first, he has deeded everything within his power to deed and retains no easement in the servient estate. Therefore, when the common grantor subsequently deeds the dominant estate to a third party, the third party can obtain no higher interest than that of the grantor and receives no easement over the servient estate. Bruno v. Evans , 200 Ga. App. 437, 440 408 SE2d 458 1991 citing Hasty v. Wilson, 223 Ga. 739, 748 4 158 SE2d 915 1967.

Burnette v. Caplan

The defendants did not have a servient estate, since the owners of the original tract of land from which the plaintiff and the defendants bought their parcels no longer owned the land belonging to defendants when they sold the property to plaintiff.

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