De Castro v. Durrell

671 S.E.2d 244

295 Ga. App. 194

DE CASTRO et al. v. DURRELL et al.

No. A08A0903.

Court of Appeals of Georgia.

Reconsideration Denied December 12, 2008.

November 18, 2008.

James, Bates, Pope & Spivey, Duke R. Groover, Macon, David G. Oedel, for appellants.

McClain & Merritt, William S. Sutton, Atlanta, for appellees.

MIKELL, Judge.

This is a dispute over property that historically was used as a soccer field and is situated in the Oakdale Commons subdivision in DeKalb County. The subdivision consists of four adjoining lots, three of which are developed. Defendants/appellees, Amy Durrell and Russell Currey, own Lot 1, on which the disputed field is located, and Lot 2, which is undeveloped. Plaintiff/appellant David Oedel owns Lot 3 and plaintiffs/appellants John de Castro and Carolyn Cash own Lot 4.¹ A 20-foot strip of the field spans the rear of Lots 3 and 4. At some point in 2004, appellees ceased allowing appellants to access Lot 1 and erected a "no trespassing" sign thereon. This litigation ensued.

Appellants filed a declaratory judgment action, claiming the right to access the disputed land for recreational purposes under theories of parol license, prescriptive easement, estoppel, and constructive trust. Appellants subsequently amended the petition to add counts alleging that the property was impliedly dedicated to the public use; quasi-easement; restrictive covenants (oral); estoppel; libel and slander of title; and that appellees' answer contained "groundless sworn denials," "causing substantial protraction of these proceedings." Appellants sought the declaration of an easement, an injunction, damages, and attorney fees. They moved for partial summary judgment on the quasi-easement claim, and appellees moved for summary judgment on all claims. The trial court granted appellees' motion and denied appellants' motion. We affirm for the reasons set forth below.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts warrant judgment as a matter of law.² The grant of a motion for summary judgment is reviewed de novo, and the evidence and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmovant.³

So viewed, the record demonstrates the following relevant facts. The entire original tract, 3.9 acres, was owned by Jean and Henry Harsch from 1969-1988. The Harsches converted a horse pasture into a field that could be used for various activities, including soccer, and they allowed the Decatur-DeKalb YMCA to practice there. The Harsches sold their property to Thomas and Martha Shim in 1988, and the Shims allowed the soccer practice to continue. There were no recorded covenants or contractual restrictions upon the Shims' use of the property. Several years later, the Shims decided to develop the property as a subdivision and call it Oakdale Commons. Preliminary site plans, dated May 1995, showed a soccer field on Lot 1. Shortly thereafter, de Castro and Cash signed an agreement with the Shims to purchase Lot 4. The contract contained special stipulations, one of which stated that the Shims agreed to convey

land of 20-foot width along the rear property line ... subject, however, to an easement ... for lawful recreational use only (including without limitation use as part of a soccer field). ... The easement shall be for the use and benefit of Lots 1, 2, and 3 (on said Plat) and each of them, and shall run with the land. No structures or fences shall be erected on the 20' Strip nor shall any use of the 20' Strip interfere with its use as part of a soccer field.

This stipulation did not reference Lot 4. Before the sale, the Shims executed a "Declaration of Easement Agreement" ("Declaration"). The Declaration created a "Recreation Easement Area" upon a 20-foot strip of land spanning the rear of Lots 3 and 4 "for the benefit of the owner of Lot 1, and as a burden upon Lots 3 and 4 ... for the conduct of recreational activities thereon, including, but not limited to use of said easement area as part of a soccer field." The Declaration further provided that

[t]he owner of Lot 1 shall bear the cost of managing, maintaining, operating, and improving the Recreation Easement Area. In the event that the owner of Lot 1 fails ... to so maintain the Recreation Easement Area in a good and safe condition for the purposes intended, the Burdened Owner of the Lot not so maintained shall have the right to take such action as is necessary to put that portion of the Recreation Easement Area burdening its Lot in condition for the purposes intended, and such Burdened Owner shall have the right to collect from the owner of Lot 1 all reasonable costs incurred in connection therewith.

The Declaration could be amended only with the consent of all the lot owners in the form of a properly recorded written instrument. Appellants do not contend that the Declaration provided the owners of Lots 3 and 4 reciprocal rights to use Lot 1.

The Declaration was executed on November 17, 1995, and recorded on November 22, 1995. On that same date, the Shims conveyed Lot 4 to de Castro and Cash by a warranty deed that incorporates the Declaration. Thereafter, a "final" subdivision plat prepared for the Shims on July 19, 1996, shows an area labeled "Recreation Area Soccer Field" on Lot 1. However, no recreation easement area appears on Lot 1 on the plat that was approved by DeKalb County and recorded on September 19, 1996. The only recreation easement that appears on the plat is the 20-foot strip located on Lots 3 and 4. De Castro and Cash signed this plat. De Castro deposed that he signed the plat because Shim promised to use an alternative method "to make sure the soccer field was preserved for recreational use." According to de Castro, Shim "described the soccer field as a recreational area for the use of all the land owners in the subdivision." The Shims' surveyor, John Roeser, deposed that the words "Recreation Area Soccer Field" had likely been erased before the plat was recorded, but he also stated that such erasures were a common practice in the preparation of plats.

Shim, who is a soccer coach, deposed that he originally planned to create a subdivision with a shared soccer field for his family and other lot owners. However, after encountering opposition from the Druid Hills Civic Association on certain other development issues, Shim and his wife decided to sell the property and move. At that point, Shim instructed Roeser to omit any reference to a common area.

Shortly after the final plat was recorded, appellees executed an agreement to purchase Lots 1 and 2 from the Shims. The contract contains certain special stipulations, including the Shims' agreement to provide an accurate legal description of the "house and soccer field," as well as a copy of all recorded easements. Appellees wrote a letter to Shim stating that their attorney had "raised concerns about the vagueness of the recreational easement and about our ... responsibilities to maintain the easement in a safe manner." Appellees proposed to amend the Declaration to delete all references to a Recreation Easement Area and rename it a "buffer area within which no structure shall be placed." They also sought to delete their maintenance obligations with respect to the Recreation Easement Area. The Shims did not agree to the proposal. Appellees purchased the property subject to the Declaration and the final recorded plat on or about November 29, 1996. Oedel bought Lot 3 on or about June 18, 1997, and his warranty deed incorporates the final recorded plat and the Declaration.

Oedel testified that he began using the soccer field occasionally in 1997, but that he did not use it for organized soccer practice until 2000, at which time he secured appellees' permission. Oedel deposed that appellees had taken down the permanent soccer goals, so Oedel put up portable soccer goals for these practices, which he stored on his own property when soccer practice was over. Oedel, a professor of law, acknowledged that he could not rely upon the Declaration to establish reciprocal easement rights on Lot 1; however, he testified that a recreational easement could be implied from the words on the plat stating that "site improvements" and "parks" were to remain.

Durrell testified that appellants did not use her property without her permission; that she refused to allow Oedel to invite other soccer teams to practice there; and that she informed Oedel that he needed permission prior to using the field for his own team's practice, because he did not always ask first. Currey testified that although he and Durrell told Oedel that they were willing to accommodate other children playing on their property, they "made it clear that the boundary lines had been defined by the legal descriptions in the plat." Currey deposed that, before purchasing Lot 1, de Castro had stated that he believed he had access rights to Lot 1; Currey disputed this claim but advised de Castro that the yard could be used with appellees' permission. De Castro deposed that appellees called him before they purchased Lot 1 to inquire as to his understanding of the recreational easements and the soccer field, and he explained that he believed that the disputed area would be a common area for recreational use.

1. In their first enumeration of error, appellants argue that they have conclusively established all of the elements necessary to prove the existence of a quasi-easement, so that the trial court erred in denying their motion for partial summary judgment on this issue. We disagree.

A quasi-easement is an easement implied from a prior or existing use.⁴ Under Georgia law,

[a] quasi-easement arises when the owner of an entire tract uses one part of the tract for the benefit of another and thereafter the tract is divided so that the [benefitted] parcel, quasi-dominant estate, is separated from...