R. Eugene Tolar and Jane A. Tolar obtained title by warranty deed to a tract of land in Rabun County located adjacent to land owned by Clifton Smith. The Tolars sued Smith seeking a declaration from the Rabun County Superior Court that the deed conveying them title to the land also conveyed them an express easement across Smith’s land. Ruling on cross-motions for summary judgment, the trial court found that the Tolars acquired an express easement; granted the Tolars’ motion seeking a declaration of the easement, and denied Smith’s motion claiming there was no express easement. Smith appeals and for the following reasons we reverse. In 2004, the Tolars acquired title to about 20 acres of land by warranty deed from Elizabeth S. Brown. The deed from Brown to the Tolars included the following conveyance: Grantor also conveys and specifically warrants to grantees, their heirs, successors and assigns, an easement to use that roadway as same is described in Deed Book O-2, page 286, aforesaid records from G. L. Smith to Homer Cannon and conveyed in subsequent deeds conveying said property which road provides access to that portion of the property lying on the South side of Stekoa Creek as well as access from said property to the nearest public road. The recorded easement described in deed book O-2, page 286 Rabun County real property records was conveyed as part of a 1941 warranty deed from G. L. Smith to Homer Cannon. G. L. Smith was the predecessor in title to the land presently owned by Clifton Smith, and the 1941 deed gave Homer Cannon title to the adjacent land presently owned by the Tolars. The 1941 deed included the following conveyance from G. L. Smith to Cannon:
As a part of this consideration the grantor also conveys to grantee, his heirs and assigns, the right to use a road which leads from this land on North side of Creek up the creek and acorse sic the creek to grantees sic land on South side of creek. The Tolars contend that this language conveyed an express easement to Cannon to use a road leading from Cannon’s land on the South side of an existing creek, then in a Westerly direction onto G. L. Smith’s adjacent land, then in a Northerly direction across the creek, then leading further across G. L. Smith’s land North of the creek. According to the Tolars’ complaint, the purpose of the easement was to provide Cannon with “usable access from the north half to the south half” of his land. The Tolars contend that they were granted the same express easement as successors in title to Cannon. Along with their motion for summary judgment, the Tolars filed an amended complaint in which they contend that the location of the easement they obtained by express grant is shown on a 1964 survey recorded at plat book 6, page 297 Rabun County real property records showing property of Clifton Smith. The 1964 survey draws a portion of Clifton Smith’s land adjacent to land now owned by the Tolars and shows by dotted lines what appears to be a road running in a generally North to South direction on Smith’s land until it crosses a stream and comes to an end less than 100 feet South of the stream on land adjacent to the land now owned by the Tolars. Nothing on the 1964 survey labels or refers to the apparent road on the survey as all or part of the road or easement intended to be conveyed in the 1941 warranty deed. In support of his motion for summary judgment and in opposition to the Tolars’ motion, Smith stated by affidavit and verified responses to interrogatories that the road shown on the 1964 survey running across his land did not lead to the adjacent land later acquired by the Tolars and was never used to access the land now owned by the Tolars.
