dissenting.
Though I am in complete accord with the first three divisions of the majority opinion, I am constrained to enter my dissent to Division 4 and its conclusion that questions of fact remain as to whether damages were caused by the erection of a fence by Rickenbaker around an adjacent and contiguous piece of property to that of the service station which was leased orally and month-to-month by Lewis and his son.
A plaintiff-movant for summary judgment has the burden of showing the absence of any genuine issues of material facts which under applicable principles of substantive law entitle him to a judgment as a matter of law. Raven v. Dodd’s Auto Sales & Service, 117 Ga. App. 416 (160 SE2d 633). On the other hand, a defendant is entitled to a summary judgment if the undisputed facts as disclosed by the pleadings and evidence negate at least one essential element entitling the plaintiff to recovery. Continental Assur. Co. v. Rothell, 121 Ga. App. 868 (2) (176 SE2d 259).
In this case, it is undisputed that Lewis had an oral month-to-month sublease from Jones. The lease was terminated between the *376owner Rickenbaker and Jones on March 6, 1981. Also in March 1981, Jones notified the Lewises that their oral lease likewise was terminated and the premises had to be vacated effective April 30, 1981. Thus, there is no dispute that appropriate notice was furnished and the Lewises did in fact vacate on the required date.
The facts also are undisputed that Rickenbaker was the fee owner of the property contiguous and to the rear of the service station under oral lease by the Lewises. The facts show that early in September 1980, Rickenbaker fenced his property up to the line of the service station property. There is no dispute that Rickenbaker had an absolute and legal right to fence his own property. Thereafter, there appears no dispute that though Lewis sought permission to have a gate closer to the service station property line and to have unlimited access to the back entrance of the service station as well as a storage shed, Rickenbaker, for security purposes, required access by only one gate to the property fenced which was at the far side from the rear line of the service station and thus limited access to the rear lot during Rickenbaker’s business hours (which were of a much shorter duration than that of the service station). The record, by its silence, shows that between September 1980 and April 1981, a period of eight months, Lewis and son accepted the limitations placed upon their use of the rear entrance to the station without objection and continued to pay their monthly rent. It appears they continued to exercise completely free and unfettered use of the entire service station under lease. It was only after their oral, month-to-month lease had been terminated in March 1981, that Lewis and son filed the complaint in April complaining they had suffered loss of enjoyment of the full use of the leased service station and raised allegations of damages.
An oral lease, like a written lease, is a contract between the lessor and lessee. When parties depart from the terms of the agreement and pay and receive money under the departure, before either can recover for a failure to adhere to the terms of the original agreement, reasonable notice must be given the other of the intention to insist upon and to pursue the original terms of the understanding. Until such notice, the departure is a quasi new agreement. Verner v. McLarty, 213 Ga. 472, 475 (99 SE2d 890). Though there were tentative negotiations or requests, there is nothing in this record to show that Lewis and his son insisted on the degree of access enjoyed prior to the construction of the fence or gave any kind of notice either to Jones or Rickenbaker that they insisted upon adherence to the original agreement. To the contrary, there is unrebutted evidence they paid without objection the lease payments. Thus, the trial court was required to find that the terms of the agreement had been modified and both parties had assented to the modification by making and accepting payments under the modified lease. See Ryder Truck Lines v. Scott, 129 Ga. App. 871 *377(201 SE2d 672). The Lewises thus were estopped to deny the modification of the contract when the first and only complaint was voiced through the medium of their April 1981 complaint, a month after even the modified contract had been terminated. See Hart v. Trust Co. of Columbus, 154 Ga. App. 329 (268 SE2d 384); Green v. Ford Motor Credit Co., 146 Ga. App. 531 (246 SE2d 721). When their complaint was filed, there was no contract which either Jones or Ricken-baker could breach.
Decided March 15, 1985 Rehearing denied March 29, 1985 Scott Walters, Jr., for appellants. Willis G. Haugen, J. Littleton Glover, Jr., A. Mitchell Powell, Jr., for appellees.Lastly, it must be concluded that there can be no liability for interference with a contractual relationship where the alleged interference is caused by the exercise of an absolute right. Schaeffer v. King, 223 Ga. 468, 470 (155 SE2d 815); Rebel Sales Co. v. McDuffie & Assoc., 142 Ga. App. 693 (237 SE2d 6). It is axiomatic that where the judgment of the trial court is proper and legal for any reason, it should be affirmed. Argonaut Ins. Co. v. Cline, 138 Ga. App. 778, 782 (4) (227 SE2d 405).
As was said by Justice Weltner of our Supreme Court in his concurring opinion in Henderson Elec. Co. v. IBEW, 250 Ga. 265, 269 (297 SE2d 268), in the event that the actions of defendants are lawful, “motive becomes immaterial, and evil design, were it established by the evidence, cannot make unlawful that which is plainly within the bounds of the law.” Appellee had fee simple title to the property and he had a right to fence his property as he did.
Rickenbaker, Jones and Ryrom, having negated at least one essential element necessary to allow a recovery based upon a breach of the lease, I would conclude the trial court properly granted summary judgment. Accordingly, I would affirm the judgment.
I respectfully dissent. I am authorized to state that Chief Judge Banke, Presiding Judge Been, and Judge Sognier join this dissent.