Use restrictions in easement do not apply to property deeded contemporaneously in fee simple.(Recent Court Decisions)

When a landowner conveyed a parcel in fee simple together with an access easement limited to certain uses, the use restrictions did not apply to the parcel, according to the Supreme Court of Georgia.

White House Inn and Suites, Inc. (Inn) owns 58 acres located on a mountain in the city of Warm Springs, on which it operates a hotel and assisted-living facility. In 1998, the Inn deeded 0.25 acres of its property in fee simple to the city for the construction of a water tower. At the same time, the Inn granted the city a water and sewer line easement over its remaining property, which by deed was for any purpose "necessary to construct and maintain water and sewer lines through said property,"

In 2006, the city entered into an agreement with a communications provider pursuant to which a radio tower was constructed on the city's quarter acre. The Inn filed suit to enjoin further operation of the radio tower, claiming that the property and easement could be used only for operation and maintenance of the water tower. The trial court denied the injunction, finding that the deed conveyed the property in fee simple without any reference to a use restriction. The Inn appealed.

On appeal, the Inn argued that the deed should be construed as including the express restrictions in the water line easement as the documents were executed contemporaneously. The state supreme court acknowledged that the law authorized the use of contemporaneous documents to provide necessary terms or to correct errors in the document at issue.

However, the contemporaneous document cannot add an agreement or warranty to a document that is completely absent, according to the court. The court found that the easement in this case, although executed at the same time, cannot be used to burden the city's warranty deed with a restrictive use not referenced therein. The court thus concluded that the city was entitled to locate the radio tower on the property. The trial court decision was affirmed.

White House Inn & Suites, Inc. v. City of Warm Springs

Supreme Court of Georgia

April 28, 2009

2009 WL 1117394 (Ga. 2009)

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