Deas v. Hughes

*13Carley, Justice,

concurring.

After considering the various methods by which easements may be created under Georgia law, I must reluctantly concur.

No easement across lot 3 has been expressly created for the benefit of lots 4 and 5. By means of the deeds conveying lots 1 and 2, Crumley did create an express easement appurtenant, with lots 1 and 2 as the servient tenement and lots 3, 4 and 5 as the dominant tenement. However, nothing in the deeds conveying lots 1 and 2 indicated that any servitude was imposed on lot 3 for the benefit of lots 4 and 5. Under those deeds, lot 3 was, and continues to be, part of the dominant tenement only. Thus, the road as it runs through lot 3 cannot be an easement appurtenant to lots 4 and 5. See Olsen v. Noble, 209 Ga. 899, 906 (1) (76 SE2d 775) (1953). Moreover, even if the deeds conveying lots T and 2 had purported to impose a servitude on lot 3, they could not have that legal effect because they are not in the chain of title for lot 3, notwithstanding that lot 3 was subsequently conveyed by a common grantor. See Walker v. Sims Estates, 211 Ga. 472 (1) (86 SE2d 281) (1955).

No easement across lot 3 has been created by implication. Unlike many other jurisdictions, Georgia has not adopted the doctrine of implied reservation of an easement in favor of a grantor of land. Srochi v. Postell, 206 Ga. 59, 62 (2) (55 SE2d 603) (2) (1949); Farris Constr. Co. v. Briarcliff Road Assoc., 247 Ga. 578 (277 SE2d 673) (1981); 1 Pindar & Pindar, Ga. Real Est. Law (4th ed. 1993), § 8-16. Where this doctrine has no application, the law may often be extremely harsh in its operation. Pindar, supra. Nevertheless, any apparent harshness of the disposition of the instant case is mandated by Georgia’s long-standing rejection of the doctrine of implied reservation of easement, in conjunction with Crumley’s failure expressly to have reserved an easement across lot 3.

The issue of the existence of a prescriptive easement was raised below. See McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424) (1978). There was evidence received at trial, without objection, which was sufficient to authorize a finding of an easement by prescription across lot 3. However, as the majority opinion indicates at footnote 2, the trial court did not make, and the evidence did not demand, such a finding. Accordingly, I am unable to conclude that the trial court can be affirmed under the principle of “right for any reason.”

For the above reasons, I am compelled to concur in the majority opinion and in the judgment of reversal.

*14Decided February 21, 1994 Reconsideration denied March 14, 1994. McClure, Ramsay & Dickerson, Allan R. Ramsay, Morris, Manning & Martin, Joseph R. Manning, John P. MacNaughton, for appellants. Robinson & Harbert, John E. Robinson, for appellees. Gershon, Olim, Katz & Loeb, Max Olim, amicus curiae.