dissenting.
I concur in Divisions One and Two of the majority opinion, holding that the deed from Barnes & Noble’s predecessor cannot be construed as an effective conveyance of an easement appurtenant. I do not, however, agree with the majority’s holding in Division Three that the deed can only be construed in that manner. In my opinion, Barnes & Noble, as the movant for summary judgment, did not meet the burden of proving its entitlement to judgment as a matter of law, because it failed to show that the easement created by the deed to Yaali’s predecessor is not a valid conveyance of an easement in gross. Accordingly, I dissent to the majority’s affirmance of the trial court’s grant of summary judgment in favor of Barnes & Noble.
Summary judgment may be proper even though a deed is subject to two differing interpretations. Holcomb v. Word, 239 Ga. 847, 848 (238 SE2d 915) (1977). It is the responsibility of the trial court to *699apply the rules of construction so as to determine which interpretation controls. Holcomb v. Word, supra. As the majority notes, where it is undisputed that a valid easement of some sort actually was granted, the law prefers construing that easement as one which is appurtenant, rather than in gross. Stovall v. Coggins Granite Co., 116 Ga. 376, 378-379 (42 SE 723) (1902). Thus, if the issue here was whether to construe the deed given by Barnes & Noble’s predecessor as a valid conveyance of an easement appurtenant or as a valid conveyance of an easement in gross, the law clearly prefers the former construction. However, as the majority correctly holds in Divisions One and Two, the deed cannot be construed as an effective conveyance of an easement appurtenant. Accordingly, the issue is whether the law prefers that construction of the deed as an ineffective conveyance, even over its possible construction as an effective conveyance of an easement in gross. In addressing that issue, another applicable rule of construction provides that the construction which will uphold a deed “ £in whole and in every part is to be preferred. . . .’ [Cit.]” Holcomb v. Word, supra at 848. Thus, it is my opinion that, between construction of a deed as an invalid conveyance of an easement appurtenant or a valid conveyance of an easement in gross, the law prefers that the latter interpretation be given.
The deed from Barnes and Noble’s predecessor in title provides that the purpose of the easement was for the ingress and egress by Yaali’s predecessor to the property. According to the majority, a conveyance for this purpose generally is construed as an easement appurtenant, rather than in gross. However, no authority is cited for the proposition that, as a matter of law, such a conveyance can never be construed as an easement in gross. Indeed, as the majority acknowledges, the “surrounding circumstances” must be considered in determining whether an easement in gross was conveyed. Stovall v. Coggins Granite Co., supra at 379. One of the circumstances surrounding the conveyance in this case is that it appears that, at the time it was made, the property was already exclusively commercial. The grant of the right of ingress and egress to commercial property, which was not owned by the grantee on the date of the execution of the deed or other instrument, can constitute the conveyance of an easement in gross primarily for the economic benefit of the grantee. See Sandy Island Corp. v. Ragsdale, 143 SE2d 803 (S.C. 1965). Compare Bosworth v. Nelson, 170 Ga. 279 (152 SE 575) (1930) (boating and fishing privileges as profits a prendre). The right of ingress and egress to commercial property is, in effect, similar to the typical easement in gross granted to a railroad, utility line, or pipeline to pass over or through property of the grantor so as to facilitate the commercial purposes of the grantee. Although this conveyance did not provide that it was assignable by Yaali’s predecessor, a commercial *700easement in gross is alienable as a matter of law, and requires no express language authorizing its assignment. Restatement of the Law of Property, § 489.
Decided September 14, 1998. Morris, Manning & Martin, Joseph R. Manning, Ann R. Schild-hammer, Leslie A. Allen, for appellants. Paul, Hastings, Janofsky & Walker, John G. Parker, Joseph C. Sharp, for appellees.The majority holds that summary judgment was proper because Yaali did not come forward with evidence to support construction of the deed as the conveyance of an easement in gross. However, the initial burden was on Barnes & Noble, as the movant, to come forward with evidence that the deed was intended to be effective as the conveyance of an easement appurtenant or not at all. Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616 (1) (501 SE2d 497) (1998). Because that initial burden was not met, no evidentiary burden ever shifted to Yaali. Accordingly, for purposes of summary judgment, Barnes & Noble has not shown that, as a matter of law, the conveyance from its predecessor was not an easement in gross which had as the primary purpose the economic benefit of Yaali’s predecessor. Therefore, I dissent to the majority’s affirmance of the grant of summary judgment in favor of Barnes & Noble.
I am authorized to state that Justice Hunstein joins in this dissent.