Morris Boyer and James Singleton “defendants” appeal from the Superior Court’s summary judgment order creating an “easement by implication for ingress and egress” on property owned by the defendants for the use of an adjoining property with no access to a public road. Because we find the record before the trial court was insufficient to make a determination as to whether an easement arose by implication of law, we reverse. OCGA § 44-9-1 outlines the following methods in which a private way can be acquired: 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. In this case, Plaintiff, Edward Whiddon, sought an easement by implication of law. When determining whether an easement arose by implication after the division of lands by the same owner, the order in which the dominant and servient estates were transferred is critical to the analysis. See Pindar, Ga. Real Estate Law and Procedure, § 8-16 5th ed. 1998; Bruno v. Evans , 200 Ga. App. 437, 440 3 408 SE2d 458 1991. “The land used by or ‘serving’ the grantee recipient of the easement is known as the servient tenement; the land served by or benefitting from the easement is known as the dominant tenement.” Id at § 8-2.
Thus, 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 , 200 Ga. App. at 440. Citations and punctuation omitted.
