concurring specially.
I concur in the judgment and specially, with the following explanation.
The majority opinion states that: “The trial court further held that the easement was not an interest in the land or a covenant running with the land, but only a license, and was therefore only a collateral or personal covenant and not one that would inure to appellant’s heirs or assigns.” What the trial court held was: “That the easement granted, a copy of which is attached to Plaintiffs Complaint as amended, is not such an easement as runs with the land, and the Court further holds that the rights given Dan V. Stinchcomb, Grantor are personal rights as to him and do not extend to his heirs or assigns.”
The only easement granted was that granted by Stinchcomb, to the Authority, as plainly shown by the document the trial court referred to; it is entitled “Sewer Easement.” The only “Grantor” named in the document and signing it as “Grantor” was Stinchcomb. The trial court did not conclude that there was no easement to Stinchcomb, but that there was no easement to the Authority. In that, as argued by Stinchcomb, the court erred. The Authority as well as Stinchcomb and the majority, and I as well, agree that an easement *563was granted to the Authority for the laying and maintenance of the sewer line. Stinchcomb chose to contest this conclusion of the trial court, in his enumeration of error number two, because he wanted then to go on and claim that his correlative right also extended beyond himself, to his assigns and heirs instead of being just personal to himself as grantor of the easement to the Authority. I would agree with Stinchcomb that that part of the court’s ruling was in error.
The majority reads that conclusion as being one relating to Stinchcomb’s rights, i.e., that the court was concluding that Stinchcomb did not have an easement.1 But the court carefully referred to Stinchcomb’s interest as “rights given”; these rights, if found, were personal only. Thus Stinchcomb’s second enumeration of error is well taken.
Turning now to the third enumeration of error, it focuses on the trial court’s ruling with respect to what Stinchcomb was given to exchange for the perpetual easement. The majority here recites that the trial court concluded that these rights were a “license,” but I do not find in the court’s order anything so designating what Stinchcomb received. Regardless of what it is called, however, what Stinchcomb wants to establish in the declaratory action he brought is that he as owner of the land through which the Authority’s sewer line runs has the right to tap onto it to serve his Fayette property until Fayette provides a line to serve that property. What prompted the action was that when the sewer line was built, he requested tap-on for the Fayette property and the Authority refused, saying it was an ultra vires act for it to grant the right to Fayette residents to use Clayton sewer service. The trial court and we all agree that the grant by the Authority with respect to the right relating to the Fayette property was not ultra vires and that this right is limited to Stinchcomb personally.
What was said in Dept. of Transp. v. Knight, 238 Ga. 225, 228 (232 SE2d 72) (1977) about judicially construing deeds is true here: “ ‘In determining whether an instrument grants an easement in or conveys title to the land embraced therein, the crucial test is the intention of the parties, and the whole instrument must be looked to, and recitals in the instrument, subject matter, object, purpose, and nature of restrictions or limitations, if any, or the absence of such, and attendant facts and circumstances of the parties at the time of making the instrument are all to be considered. (Cits.)’ ”
The Authority wanted to construct and perpetually maintain a *564sewer line through Stinchcomb’s property, so it negotiated with him and he agreed to grant the easement so the Authority could accomplish this purpose. In consideration, it gave him only $1 in money plus the right to tap onto the line from his property. Thus the tap-on right was the primary consideration. As to his Fayette property, the right would exist until Fayette provided a sewer line to serve the Fayette property. The need for the tap-on would obviously exist as long as there were residents on the property and Fayette did not provide the service. If, for example, Stinchcomb died the day after the line was finished and available for service to the Fayette property, the limited purpose of the agreement would be frustrated by a refusal to provide it and that part of the consideration for the grant of the perpetual easement would have no value. Or that if the tap-on for the Fayette property was made and Stinchcomb died or sold the property before Fayette installed a sewer line, use by the residents would have to cease. The event governing the conclusion of the right to service for the Fayette property, as expressly spelled out in the instrument, was not the death of Stinchcomb or devise of the property but rather access to sewer service from the other county. The right to this service was not to be “perpetual,” as the easement was, but was limited to, in effect, the need for it.
The fact that the instrument, no doubt prepared by the Authority, did not specifically state that it was to “Grantor, his successor, or assigns” is not dispositive. As stated in Featherston Mining Co. v. Young, 118 Ga. 564 (1) (45 SE 414) (1903): “Under the Civil Code, Sec. 3083, (its successor is OCGA 44-6-2) the words ‘heirs,’ ‘assigns,’ ‘successors,’ are not necessary in order to convey the fee or to make the estate created by the instrument transmissible to subsequent purchasers.” This is cited as authority in Dept. of Transp. v. Knight, supra, for the conclusion that “Neither does it matter that the grant was not both to successors and assigns.” (Emphasis supplied.)
Considering the magnitude of the easement granted by Stinchcomb (45' construction easement and 10' permanent easement), the length of its duration (perpetual), the consideration he received for it (the right to use plus $1), the purpose of the right as related to the Fayette property, the fact that the Authority refused to recognize it at all and only later urged that if it existed it was personal, and the language of the instrument, it grants the right until Fayette provided a sanitary sewer line to serve the Fayette property. These factors support the conclusion that this is what the parties intended.
I am authorized to state that Judge Pope joins in this special concurrence.
*565Decided January 10, 1986 Rehearing denied January 24, 1986 John L. Watson, Jr., for appellant. G. Robert Oliver, for appellee.Of course, Stinchcomb could not have been granted an easement in exchange, because the nature of what he was granted was a right to tap into the sewer line, not a right to use land; the sewer line is personalty, which would become a fixture, not real estate. The Authority was granted the right to use Stinchcomb’s land, in exchange for Stinchcomb’s right to use the Authority’s sewer line. Such a right was not therefore a right in land.