HAYGOOD v. TILLEY No. A08A1551.
670 S.E.2d 800 (2008)
HAYGOOD et al. v. TILLEY.
Court of Appeals of Georgia.
Reconsideration Denied December 4, 2008.
Cox & Byington, Christopher P. Twyman, Rome, Tiffany P. Edmonds, for appellee.
In this dispute over a driveway easement, we review the trial court's order granting interlocutory relief.
In its order, the trial court consolidated two actions on the grounds that both involved disputes over the use and control of the easement: one arising from Phil Tilley's petition for temporary, interlocutory, and permanent injunctive relief; and the other from the complaint filed by Johnny and Donna Haygood.
The record reflects that a survey performed on or about April 11, 2006, shows that five parcels of land are located in Land Lot 250, 21st District, 3rd Section in Polk County, and are designated alphabetically as parcels "A" through "E." The survey shows a 20-foot easement along the existing drive that travels from Whitman Road to parcel "B," which included a house. Tilley acquired parcel "B" in 2007 from Dan Forsyth. The Haygoods acquired parcel "C" in 2001 from Clay Johnson, and the legal description attached to their warranty deed described the land conveyed to include the driveway easement.
In Tilley's petition for injunctive relief, Tilley claims that the easement is an improved, paved easement, which is nonexclusive as it was used by all who owned property adjacent to it. The trial court entered a temporary restraining order, noting thereon that it was addressing Tilley's petition and the Haygoods' complaint. In its order, the trial court provided that the Haygoods were
The survey for Danny T. Harp and Donna Harp (the "Harp survey") is referenced in the legal description attached to the Haygoods' warranty deed and in each preceding deed discovered in the title history of the Haygoods' property.
The Haygoods attended the hearing on the petition for temporary interlocutory relief but offered no defense and introduced no evidence. Tilley testified and called as a
At the conclusion of the hearing, the trial court directed Tilley's counsel to prepare an order including the court's findings of fact; that Tilley had established a substantial likelihood of prevailing on the merits; that Tilley would suffer irreparable harm or injury unless the injunction issued; that there had been no allegation that the issuance of the injunction would injure the Haygoods; and that the issuance of the injunction would not be adverse to the public interest. These findings were reflected in the order from which the Haygoods appeal.
"A trial court may issue an interlocutory injunction to maintain the status quo until the final hearing if, by balancing the relative conveniences of the parties, it determines that they favor the party seeking the injunction."
1. In five interrelated enumerations of error, the Haygoods argue that the trial court erred when it granted the injunction because: (1) it based its finding on the Harp survey, which was different from the description in Tilley's deed; (2) it referred to the Harp survey in its order; (3) predecessors in Tilley's chain of title did not preserve the easement for Tilley's use; (4) an earlier action to quiet title between a prior owner of Tilley's property and the Haygoods had been dismissed without prejudice; and (5) there had not been seven years of uninterrupted use of the driveway by Tilley and previous owners. We address these errors simultaneously.
The record shows that Tilley's deed incorporates by reference the plat prepared by surveyor Head, which clearly shows the driveway easement.
Head testified that he prepared the plat based upon the Harp survey, which is referenced throughout in the Haygoods' chain of title. In addition, even if the easement were not referenced in his deed, we find critical the fact that Tilley's land does not abut Whitman Road and can only be accessed through the driveway easement. The Haygoods offered no contradictory evidence on this point. Therefore, based on the evidence in the record, Tilley would have the right to an easement as it is well established in Georgia that an easement arises by implication of law when that right is necessary to the enjoyment of lands.
The Haygoods cite Mersac, Inc. v. Nat. Hills Condo. Assn.
2. The Haygoods appear to argue in their sixth enumerated error that they were denied the right to counsel when the trial court did not continue the hearing to afford them the opportunity to retain counsel. The Haygoods argue that their motion for continuance was not ruled upon, but there is no evidence in the record that they sought a ruling on their motion. Therefore, the argument that the trial court erred when it denied the motion for continuance is waived on appeal.
3. In their last enumerated error, the Haygoods contend that they were denied their right to a jury trial. "[T]here is no constitutional or statutory right to a jury at
SMITH, P.J., and ADAMS, J., concur.
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