Incorporation by Plat Does Not Establish Ownership Contrary to Deed Description

Sometimes a legal description to land in a deed does not match up with what is shown on a recorded plat.  When this happens, the deed description prevails.  In Washington v. Brown, the Georgia Supreme Court issued an opinion rejecting a claim of title to land based on a referenced plat on the grounds the land in the plat did not match the legal description in the deed.  Washington v. Brown, Case No. S11A1551 (Fe. 6, 2012).  The court cited the 1956 case in Johnson v. Willingham, 212 Ga. 310, 311 (1), in reaching this conclusion. The court held the legal description trumped the plat reference.

The Washington case also rejected a claim of adverse possession under the shortened period for color of title.  The court held the plat reference was not sufficient to invoke color of title thereby requiring a showing of adverse possession for the longer, 20 year period.   The squatter had failed to show continuity of possession for 20 years and had to rely on the 7 year argument requiring color of title.

The most interesting part of the Washington decision was the result of the case.  The suit was between two landowners in a quiet title action.  The party losing the plat argument in the supreme court had prevailed before the special master and before the superior court -- on the appeal from the special master.  Because the special master in the proceedings below had previously ruled against the appellant's claim of title, the result of the court's opinion appears to be that both parties to the land dispute lost their claim to the disputed land! 

Written Power Line Easements Are Contracts

An easement in Georgia is a right that a person or company enjoys in relation to another person's property.  Easements for storm water pipes, drainage courses, power lines, gas lines, driveways, and roads or access often exist on or across a property owner's property.  Many times, these easements are recorded in the deed records maintained by a county.  Where easements are recorded, the courts treat the easements as written contracts between the holder of the easement and the property owner across which the easement runs.   Georgia courts have explained this principle as follows in a case involving a Georgia Power Company easement:

That written easement constitutes a contract, and express easements are construed by applying the rules of contract construction. Municipal Elec. Auth. of Ga. v. Gold–Arrow Farms, 276 Ga.App. 862, 866(1), 625 S.E.2d 57 (2005). “Generally, this [easement] presents a question of law for the court, unless the language presents an ambiguity that cannot be resolved by the rules of construction.” Id. In construing a contract, if the terms are clear and unambiguous, the court looks to the contract alone—the easement itself—to determine the parties' intent. Parris Properties v. Nichols, 305 Ga.App. 734, 738(1)(a), 700 S.E.2d 848 (2010).

Richardson v. Georgia Power Co., 308 Ga. App. 341, 343, 708 S.E.2d 10, 12 (2011), reconsideration denied (Mar. 10, 2011).

Contractual Right of First Refusal Not Compensable Under Taking Clause

In an opinion on February 6, 2012, the Georgia Supreme Court held that a condemning authority is not required to compensate a landowner for a right of first refusal of a tract of land adjacent to the tract subject to condemnation under the Taking Clause of the Georgia Constitution of 1983, Art. 1., Section 3, Paragraph 1.  Robinson v. Gwinnett County, Case No. S11A1533 (Feb. 6, 2012).   The right of first refusal of the adjacent tract had value and was part of the bundle of rights held, but the Court decided that the county was not required to compensate the landowners for the value of the option upon condemning the land to which the option was attached. 

Open Meetings Act Requires Record of Votes

In the opinion in Cardinale v. City of Atlanta issued February 6, 2012, the Georgia Supreme Court addressed a set of facts raising the issue whether the Open Meetings Act required a municipality to make a record of the names of members voting for and against a proposal in a poll at a retreat.  The Court's opinion stated that when members of a city council get together and float a proposal informally among the group to ascertain support for a resolution, the names of the members voting for and against the proposal must be made a public record.  Cardinale v. City of Atlanta, Case No. S11G1047 (Ga., Feb. 6, 2012).