1. If an owner of a tract of land makes a subdivision of the south portion thereof and divides it into lots and an alley running between such sub division and the north portion of the tract, records a plat thereof, and conveys the lots by reference to the plat which shows the lots as abutting *Page 434 the particular alley, the grantee in virtue of the grant will acquire a private easement in the alley as appurtenant to the land for the purpose of ingress and egress to and from the lots; and this principle applies whether the alley extends from one street to another, or is a cul de sac extending only from one street to a terminus at the line of a given lot in the subdivision.
2. Where a deed or grant refers to a plat as furnishing the description of the land conveyed, the plat itself and the words and marks on it are as much a part of the grant or deed, and control, so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself.
3. In such circumstances it is not essential to the acquisition of such easement by purchasers of lots that there was a dedication of the alley to public use and acceptance by the public, evidenced by its use.
4. As to the acquirement of an easement, a distinction is to be drawn where the maker of the plat has parted with title to the alley, or servient fee, at the time he executes a deed to land to which such alley is contiguous. The implied grant of an easement is dependent upon the grantor's ownership of the servient fee, and when he conveys the alley to another after the plat has been recorded, such deed of record is notice to the world that thenceforth he is in no position to create an easement in the alley as against such grantee, although as between him and a subsequent grantee of a contiguous lot he is estopped by his deed from contesting with such grantee the latter's right to use the alley.
5. Where a right of way or other easement is created by grant, deed, or reservation, no duty is thereby cast upon the owner of the dominant estate thus created to make use thereof or enjoy the same as a condition to the right to retain his interest therein, and the mere nonuser of such an easement for a period however long will not amount to an abandonment. The mere fact that one does not immediately begin to exercise his right of use under an easement, or that he delays doing so for a number of years, would not occasion a loss of the easement. His right being complete, he could not be deprived of it except by express abandonment, or by such conduct as would be tantamount to the same.
6. While an injunction will not be granted where the main purpose is to require affirmative action, an order may be granted, the essential nature of which is to restrain, although in submitting to the restraint the defendant may incidentally be compelled to perform some act.
(a) The fact that to prevent obstruction of an alley, as required by an order of court, a defendant would incidentally be obliged to remove a fence which he had erected across the alley would not make the injunction mandatory in nature.
7. Under the agreed statement of facts and the principles of law applicable thereto, only one of the petitioners had acquired an easement in the alley which it was alleged the defendants were preventing the petitioners from using; and the judgment enjoining the defendants from preventing use of the alley by all of the petitioners must, under the direction being given by this court, be modified so as to exclude the other three petitioners from the benefits of the injunction. *Page 435
8. The evidence failed to show any forfeiture of easement by nonuser on the part of the prevailing petitioner.
No. 14796. MARCH 8, 1944. STATEMENT OF FACTS BY DUCKWORTH, JUSTICE. Mrs. G. C. Comer, Mrs. Minnie L. Flournoy, Elaine Hammond, and R. C. Holleman filed an equitable petition against W. L. Westbrook, Virgil Cox, and Marjorie Cargill Petri to enjoin them from interfering with the petitioners' use of a certain alley in the City of Columbus. Under an agreed statement of facts the case was submitted to the judge without a jury. For a proper consideration of the merits, the following summary of the facts will suffice.
On July 1, 1893, William A. Little was the owner of a tract of land near Columbus, Muscogee County, Georgia. Out of this tract two subdivisions, a plat of which is a part of the record, were subsequently carved, as will hereinafter appear. Between them is a strip of land which is referred to as a 20-foot alley, and which is the subject matter of this litigation. On July 1, 1893, Little, still the owner, made a subdivision of the south portion of the parent tract and recorded in the office of the clerk of the superior court of Muscogee County, a map or plat showing such subdivision as Little's Wynnton Survey. This map or plat showed the north boundary of the survey as being the north boundary of the 20-foot alley running east and west the full width of the survey, which survey was bounded on the east by Eighteenth Avenue and on the west by Sixteenth Avenue. When Little sold off lots from this survey, the title to which is now held by the petitioners, except as to the south portion of lot 14, they were sold with reference to the recorded map or plat, and all deeds, which were duly recorded, from him and successive conveyances from those claiming under him, duly recorded, conveyed the lots "with all and singular the rights, members and appurtenances thereof to the same in any manner belonging." Mrs. G. C. Comer, the owner of lot 11, Elaine Hammond, the owner of lot 13, and R. O. Holleman, the owner of the northern portion of lot 14, did not acquire title to the lots in Wynnton Survey until February 15, 1918, October 10, 1941, and July 12, 1938, respectively, and no title to any *Page 436 of the lots now owned by them passed from Little to any predecessor in title or to any of these three before March 5, 1901.
On June 20, 1899, Little and others deeded from the parent tract to C. W. Munro certain land from which Boulevard Terrace, north of the 20-foot alley, was carved by H. Land, a remote grantee of Munro. The deed from Little and others to Munro recited that the south line of the land conveyed was the north line of four certain lots (in Little's Wynnton Survey) which adjoined the 20-foot alley here involved. Little warranted title to all the land except the portion embraced in the alley. On August 18, 1911, Munro conveyed to Thomas L. Walters the land now comprising Boulevard Terrace, north of the alley, but restricted the south line to the north line of the alley. On August 18, 1923, the executrix of Walters conveyed to B. E. Wiggers by the identical description. On August 27, 1924, Wiggers conveyed to H. Land by the identical description. The defendants, W. L. Westbrook, Virgil Cox, and Marjorie Cargill Petri, own three of the lots in Boulevard Terrace, the subdivision made by H. Land out of the land originally conveyed to Munro, and each lot was sold by Land with reference to a recorded map or plat of such subdivision filed by him on July 8, 1927, and the 20-foot alley was designated as "existing street twenty feet." When H. Land sold to the defendants their respective lots in Boulevard Terrace with reference to his recorded map or plat, which showed the south boundary of that subdivision to be the north boundary of the 20-foot alley, he also executed to the respective grantees a quitclaim deed to that portion of the alley south of the conveyed lot and between imaginary prolongations of lines representing the eastern and western boundaries of the respective lots. After acquiring the lots from Land, the grantees respectively executed certain security deeds to named parties, but excluded from the conveyances the land embraced in the 20-foot alley.
Although the alley was designated on the map or plat of Boulevard Terrace as an "existing street twenty feet," and also appears on maps of the City of Columbus in general use by the public as an existing street or alley, it has never been in actual use by the public or actually opened, worked, and adopted by the City of Columbus, and has remained in the possession of the owners of the land contiguous to same from the time it was laid off by Little *Page 437 as an alley on July 1, 1893. The alley has been used as a private alley by Mrs. Minnie L. Flournoy, one of the petitioners, in connection with her possession of lot 12 of Little's Wynnton Survey. The alley has been used as a private alley by R. O. Holleman in connection with his possession of lot D of the subdivision of lot 14 of Little's Wynnton Survey.
After the defendants acquired said lots in Boulevard Terrace, they erected and installed immediately south of their lots fences across the 20-foot alley between Boulevard Terrace and Little's Wynnton Survey. Said fences extend across the alley and along the south line of the same. The eastern and western lines of each of said fences are prolongations of the eastern and western lines of each of the aforesaid lots of the said defendants. The fences so erected and maintained incorporate into each of the lots of each of the defendants all of the alley south of each of the defendants' lots, as the fences are erected on the eastern and western sides of the prolongations of the eastern and western lines of each of the defendants' lots, and also run along the south line of the alley between the prolongations. The fences prevent the petitioners from using the alley by foot or vehicle. The defendants are using that part of the valley, which he or she has fenced off, for gardens and the planting of shrubbery therein, and thereby prevent the use of the alley by the petitioners. Before the present suit was filed, the petitioners requested the defendants to remove the fences, but the defendants refused to do so.
On three different occasions since Mrs. Minnie L. Flournoy acquired lot 12 of Little's Wynnton Survey, she has sent a man with a one-horse wagon to cut down the undergrowth and trees off of the rear of her lot. He went to her lot from Eighteenth Avenue through the alley and entered onto the lot, and when he left he left the alley by the way of Sixteenth Avenue. Mrs. Flournoy does not remember the dates, but they were before the grade of Sixteenth Avenue was changed. On another occasion, the date of which she does not recall, but before the change in the grade of Sixteenth Avenue, she sent a man with a two-horse mowing machine to cut down Johnson grass in the rear of her lot. He went to her lot by the alley from Eighteenth Avenue and left by Sixteenth Avenue. Milo B. Clason, who owned and occupied lot 12 in Little's Wynnton Survey before Mrs. Flournoy acquired it, never used the alley, *Page 438 and to his knowledge it was not used by anyone during the time he occupied lot 12 and was not laid out on the ground. A substantial fence is constructed along the entire length of the north boundary line of lot 14, the northern portion of which is owned by R. O. Holleman in Little's Wynnton Survey. There is no gate or other aperture in the fence leading to or from the alley. A substantial fence is constructed along the entire length of the north boundary line of lot 13, owned by Elaine Hammond in Little's Wynnton Survey. There is no gate or other aperture in the fence leading to or from the alley.
It was further stipulated in the agreed statement of facts that the land comprising the 20-foot alley was conveyed to Charles W. Munro by William A. Little before the time Elaine Hammond, R. O. Holleman, and Mrs. G. C. comer, three of the petitioners acquired their lots in Little's Wynnton Survey.
The defendants were enjoined as prayed. The exception is to the judgment overruling their motion for new trial. "If an owner of a tract of land divides it into lots, streets, and alleys, records a plat thereof, and conveys lots by reference to the plat which abut a particular alley, the grantee in virtue of the grant will acquire a private easement in the alley as appurtenant to the land for the purpose of affording ingress and egress to and from the lots. The principle applies whether the alley extends from one street to another or is a cul de sac extending only from one street to a terminus at the line of a given lot in the subdivision."Aspinwall v. Enterprise Development Co., 165 Ga. 83 (140 S.E. 67), and cit. See also Ford v. Harris, 95 Ga. 97 (22 S.E. 144); Schreck v. Blun, 131 Ga. 489 (62 S.E. 705);Gibson v. Gibson, 143 Ga. 104 (84 S.E. 373); Tietjen v.Meldrim, 169 Ga. 678 (151 S.E. 349); Holder v. JordanRealty Co., 170 Ga. 764 (154 S.E. 353). As was ruled inState v. Ga. Ry. Power Co., 141 Ga. 153, 156 (80 S.E. 657): "Where a deed or grant refers to a plat as furnishing the description of the land conveyed, the plat itself and the words and marks on it are as much a part of the grant or deed, and control so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself." See also Hardy v. Brannen, 194 Ga. 252, 254 (21 S.E.2d 417). "In such circumstances *Page 439 it is not essential to the acquisition of such easement by these purchasers that there was a dedication of the street to public use and acceptance thereof by the public, evidenced by its use."Hamil v. Pone, 160 Ga. 774 (129 S.E. 94). Under the above cited authorities, any grantee under a deed from William A. Little or his successors in title, executed after the recording of a plat of the subdivision, and while Little held title to the land embraced in the 20-foot alley, acquired an easement in said alley as effectively as if the deed had specifically granted it. A distinction is to be drawn, however, in a case where the maker of the plat has parted with title to a street or alley at the time he executes a deed to land to which such alley is contiguous, although as between him and his grantee he is estopped by his deed from contesting with his grantee the latter's right to use the alley. As was said in Wimpey v.Smart, 137 Ga. 325, 328 (73 S.E. 586): "The necessity that the grantor own the land represented as a street before a covenant of easement over it can be implied is apparent. In the absence of an express grant, a grantor will not be presumed as intending to pass. as an appurtenance to the land conveyed, an easement over the land of another. If he gives a street or way as a boundary, he will be estopped by his deed from denying the existence of the street or way. This estoppel results from the effect to be given to his deed; for every grant should be so construed as to give the grantee the benefits intended to be conferred by the grant, and the grantor will not be permitted to close up the way or do anything that will defeat or essentially impair his grant. Parker v. Framington, 8 Met. 268. When a way is given as a boundary, the implication of a grant of an easement is dependent upon the grantor's ownership of the servient fee; nevertheless he is estopped by his deed from contesting with his grantee the latter's right to use the way, whether the ownership of the servient fee be in him or in another. This distinction has not always been clearly observed in the cases bearing on the question, but where the express point was made the distinction was noted and the case decided accordingly." In Jones on Easements, 185, § 222, it is stated: "A conveyance of land bordering upon a way passes no easement in the way, in case the grantor has already conveyed to another in fee the title to the soil of the way. Having no title to the way, the grantor can confer no right to use it." See 19 C. J. 933, § 134. *Page 440
Upon a consideration of the facts in the present case, it must be held that the petitioner, Mrs. Minnie L. Flournoy, acquired an easement in the 20-foot alley, but that the other petitioners, Mrs. G. C. Comer, Elaine Hammond, and R. O. Holleman, did not, for the following reasons: Although Mrs. Flournoy did not obtain a deed to lot 12 in Little's Wynnton Survey Until January 3, 1923, it is shown by the agreed statement of facts that her predecessor in title acquired title on June 8, 1893, a date before the time when Little, on June 20, 1899, conveyed to C. W. Munro the land from which H. Land, his remote grantee, subsequently carved Boulevard Terrace, and by which description in the deed to Munro the 20-foot alley was included, though title to the latter was not warranted by Little. When Munro conveyed to Walters, he restricted the southern boundary to the north line of the 20-foot alley, as did the executrix of Walters in conveying to B. E. Wiggers, and B. E. Wiggers in conveying to H. Land, and as did H. Land in making the plat of Boulevard Terrace which he recorded. The deeds executed by H. Land to the defendants to lots in Boulevard Terrace excluded the 20-foot alley, although in each case he executed a quitclaim deed to the portion of the alley south of the conveyed lot and between imaginary prolongations of lines representing the eastern and western boundaries of the respective lots. Thus it will be seen that title to the alley itself remained in Munro, so far as the record discloses, at the time of the commencement of the present litigation. H. Land and his grantees apparently recognized that the title to the alley had been left in Munro, because when Land sold lots in Boulevard Terrace and his grantees afterwards executed certain security deeds to named parties, each conveyance excluded the land embraced in the alley. In fact, no issue is raised as to title to the alley being in Munro; the respective contentions of the parties being as to whether or not the petitioners, Mrs. G. C. Comer, Elaine Hammond, and R. O. Holleman, have easements in the 20-foot alley, notwithstanding the fact that Little had on June 20, 1899, conveyed the alley to Munro. It is clear that, with the exception of Mrs. flournoy, none of the petitioners nor any predecessor in title acquired title to any lot in Little's Wynnton Survey before March 5, 1901, and Little having conveyed the alley to Munro before they acquired title to any lot, there was nothing upon which an easement could operate, because, *Page 441 as was said in the authorities hereinbefore cited, an easement is dependent upon the grantor's ownership of the servient fee at the time of the conveyance of the dominant estate.
It is argued by counsel for the petitioners that Munro and his successors in title were estopped to deny that Little, by reason of recording the plat, had created an easement of appurtenance to all of the contiguous lots in Little's Wynnton Survey for the benefit of all purchasers thereof. However, Little did not included in the recorded plat the land that subsequently became Boulevard Terrace subdivision; and though the alley would be burdened with an easement as to any grantee from him to a lot in Little's Wynnton Survey while he held title to the lot, yet when he conveyed the alley to Munro on June 20, 1899, by a duly recorded deed, notice was thereby given to the world that he no longer owned the alley, and that he was thenceforth in no position to create an easement therein by reason of any conveyance of a lot in Little's Wynnton Survey. The recordation of the plat by Little, while having the effect of incorporating its words and marks into any subsequently executed deed during the time that Little held title to the alley, and thereby requiring the deed to be construed for the benefit of the grantee as if it had contained such descriptions, ought not in reason to be held capable of conferring a greater right than a deed which itself contains such words and marks at the time of its execution. Such a deed, although creating an easement in the alley as to the particular grantee, should not, after Little has conveyed the alley to another as part of the land out of which Boulevard Terrace was carved, operate so as to preclude the latter or his successors in title to lots in Boulevard Terrace abutting the alley from contending that a Subsequent grantee under Little of a lot in Little's Wynnton Survey adjoining the alley acquired no easement therein. This necessarily results from the principle stated in Wimpey v. Smart and other authorities, supra. The recordation of the plat of Little's Wynnton Survey was not notice to Munro or any of his successors in title that any grantee of a lot in that subdivision would inall events acquire an easement in the alley, but notice only that an easement in the alley would inure to such persons as might purchase a lot while Little held title to the alley. It follows from what has been said that only Mrs. Minnie L. Flournoy was entitled to the decree of injunction as prayed, and then only in the *Page 442 event that she has not, as argued by the plaintiffs in error, forfeited the easement by nonuser, or unless the injunction was a mandatory one.
While an easement acquired by user or prescription may be lost by abandonment or nonuser, a different rule applies when an easement has been acquired by a grant. As was said in Tietjen v. Meldrim, 169 Ga. 695 (supra): "Where an easement of way is acquired by mere user, the doctrine of extinction by mere nonuser may in reason apply; but where such easement is acquired by grant, the doctrine of extinction by nonuser should not apply. Where an easement has been acquired by grant, mere nonuser, without further evidence of an intent to abandon it, will not constitute an abandonment. Mayor c. of Savannah v. Barnes,148 Ga. 317 (96 S.E. 625, 9 A.L.R. 419; Atlanta WestPoint R. Co. v. Atlanta, 156 Ga. 251 (4) (119 S.E. 712). The authorities in other jurisdictions are fairly agreed that where a right of way or other easement is created by grant, deed, or reservation, no duty is thereby cast upon the owner of the dominant estate thus created to make use thereof or enjoy the same as a condition to the right to retain his interest therein, and that the mere nonuser of such an easement for any length of time will not extinguish the same. . . The mere nonuser of an easement created by deed, for a period however long, will not amount to an abandonment. 19 C.J. 942, § 151 (2)." It was further said in the opinion: "The mere fact that the plaintiffs did not immediately begin to exercise their right to use these streets, or that they delayed doing so for a number of years, would not occasion a loss of the easement. Their right to it being perfect and complete, they could not be deprived of it except by express abandonment, or by such conduct on their part as would be tantamount to the same." No discussion is necessary to demonstrate that there was no evidence whatever showing any intention by Mrs. Flournoy to waive or abandon her right of easement in the alley.
The contention of the plaintiffs in error that the injunction is mandatory can not be upheld. While fences have been erected by the defendants across the alley so as to prevent its use by the petitioners, the order of the court does not specifically direct that they be removed, but restrains the defendants from using the alley "for any purpose other than an alley and from obstructing same and *Page 443 . . from using the same in any way, manner, or form so as to interfere with the rights of the plaintiffs' use of said space as an alley." Mrs. Flournoy, having the right to do whatever is reasonably necessary to the enjoyment of her easement and keep the alley in a proper state of repair, provided it is done without imposing unnecessary inconvenience on the owner of the servient estate, and the extent of the easement is not thereby enlarged (19 C. J. 981, § 231), may herself cause to be removed the fences which block the passage through the alley. But the petition for injunction is not based alone on the interference caused by the fences, since it is alleged and admitted that the defendants are using the portion of the alley which has been fenced off for gardens and the planting of shrubbery therein, and thereby prevent the use of the alley by the petitioners. In any event, while an injunction will not be granted where the main purpose is to require affirmative action, as ruled in cases cited by the plaintiffs in error, the court may grant an order the essential nature of which is to restrain, although in yielding obedience to the restraint the defendants may incidentally be compelled to perform some act. Goodrich v. Georgia Railroad Bkg. Co., 115 Ga. 340 (41 S.E. 659); Rosser v. Styron,171 Ga. 238, 240 (155 S.E. 23). The fact that to prevent obstruction of the alley, as required by the order of the court, the defendants would incidentally be obliged to remove the fences erected across the alley would not make the injunction here mandatory in nature. Spencer v. Tumlin, 155 Ga. 341 (116 S.E. 600); Phinizy v. Gardner, 159 Ga. 136 (125 S.E. 195);Ashford v. Walters, 160 Ga. 350 (127 S.E. 758); Barham v. Grant, 185 Ga. 601 (196 S.E. 43).
It follows from what is said above that Mrs. Minnie L. Flournoy is alone entitled to an injunction to restrain the defendants from interfering with the use of the alley, and the judgment is affirmed with direction that it be modified accordingly.
Judgment affirmed, with direction. All the Justices concur.