                                FOURTH DIVISION
                                 DILLARD, P. J.,
                            RICKMAN and BROWN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten days
                    of the date of decision to be deemed timely filed.
                                https://www.gaappeals.us/rules

                    DEADLINES ARE NO LONGER TOLLED IN THIS
                    COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
                    THE TIMES SET BY OUR COURT RULES.


                                                                        June 26, 2020



In the Court of Appeals of Georgia
 A20A0443. DOXEY v. CRISSEY, et al.

      RICKMAN, Judge.

      Carolyn Doxey appeals the trial court’s Order Granting Declaratory Judgment

and Injunctive Relief, which permanently enjoined her from obstructing or interfering

with the use of a bridle trail easement on her property. She contends that the trial court

erred by considering parole evidence to determine the meaning of “bridle trail,” finding

that the purported bridle trail easement had not been abandoned, and restricting

testimony of a fact witness. For reasons that follow, we vacate the judgment of the trial

court and remand the case for proceedings consistent with this opinion.

      “[W]e review a trial court’s grant of a permanent injunction for a manifest abuse

of discretion. We review issues of law de novo, applying the ‘plain legal error’

standard of review.” Harris v. S. Christian Leadership Conference, 313 Ga. App. 363,
364 (721 SE2d 906) (2011). “[W]ith respect to factual issues we construe the evidence

in favor of the trial court’s findings and affirm if there is any evidence to support

them, regardless of whether the evidence would also support opposite findings.” Id.

      So viewed, the evidence showed that in December 1970, Clem and Carolyn

Doxey purchased Lot 28 in Section VI of the Oakton subdivision, and that their house

is located on that lot. The warranty deed conveying Lot 28 to the Doxeys referenced

a 10-foot wide bridle trail easement along the east property line. Clem Doxey

subsequently purchased Lot 27 in Section IV of the Oakton subdivision, and the

Doxeys built a tennis court on it. In November 1995, Clem Doxey conveyed both lots

to Carolyn Doxey via warranty deed, which was made subject to all easements of

record and referenced the 10-foot wide bridle trail easement along the east line of Lot

28 in the legal description of Lot 28. A recorded plat of Section VI of the Oakton

subdivision, which is referenced in the legal description of Lot 28 in the November

1995 warranty deed, shows a 10-foot bridle trail easement along the east property line

of Lot 28. In 1998, a plat was recorded showing the movement of the bridle trail

easement from the east side of Lot 28 to the east side of Lot 27. Neither party has

challenged the relocation of the easement.




                                          2
       Lots 27 and 28 of the Oakton subdivision back up to Kennesaw Mountain

National Park and the bridle trail easement connects the street in front of the Doxey

property to the park. One of the trails in the park is approximately two to three feet

from Doxey’s back property line. Evidence was presented that some residents of the

Oakton subdivision initially used the easement on Lot 28 to gain pedestrian access to

the park, and later used the easement on Lot 27 for the same purpose. The only

evidence of a horse using the easement came from Carolyn Doxey, who testified that

in the early 1970s she saw a girl riding a horse on it.

       In the early 2000s, Doxey extended a fence that ran between the back of Lot 28

and the park to cover the back of Lot 27. Initially, there was an approximately 3-foot

wide gate that allowed continued pedestrian access to the park from the Doxey

property. At some point between 2002 and 2004, that gate was nailed shut and then

removed, precluding access to the park from the Doxey property.

       In 2018, ten residents of the Oakton subdivision brought an action against

Carolyn Doxey for declaratory judgment and injunctive relief, seeking to permanently

enjoin Doxey from obstructing or interfering with the easements on Lots 27 and 28 of

the Oakton subdivision and to require Doxey to remove the fences blocking those

easements. After a bench trial, the trial court determined that the plaintiffs had the right


                                             3
to enforce the easement on Lot 27 and declared that all residents of all sections of the

Oakton subdivision had the right to continued unobstructed use of that easement as

pedestrians or equestrians. The trial court permanently enjoined Doxey from

obstructing or interfering with the residents’ use of the easement, and ordered her to

remove the fence blocking the easement.1

      1. Doxey contends that the trial court erred by considering parole evidence to

determine the meaning of the term “bridle trail.” We agree.

      (a) An easement created by a subdivision plat is considered “an easement by

express grant.” (Citation and punctuation omitted.) Zywiciel v. Historic Westside Vill.

Partners, 313 Ga. App. 397, 399 (1) (721 SE2d 617) (2011). “In interpreting an express

easement, the rules of contract construction apply. The construction of a contract is a

question of law for the court. The cardinal rule of construction is to ascertain the

parties’ intent. Parol evidence may not be considered unless the written instrument is

ambiguous.” (Citations omitted.) Irvin v. Laxmi, Inc., 266 Ga. 204, 205 (1) (467 SE2d

510) (1996).

      A contract is ambiguous if the words used therein leave the intent of the
      parties in question—i.e., that intent is uncertain, unclear, or is open to

      1
       After Doxey filed her notice of appeal, this Court granted her motion for
supersedeas and stayed the trial court’s order pending appeal.

                                           4
      various interpretations. On the other hand, no ambiguity exists where,
      examining the contract as a whole and affording the words used therein
      their plain and ordinary meaning, the contract is capable of only one
      reasonable interpretation.


(Citation and punctuation omitted.) Bowers v. Today’s Bank, 347 Ga. App. 615, 618

(1) (820 SE2d 459) (2018). Dictionaries may be used to supply the plain and ordinary

sense of a word. Mkt. Place Shopping Ctr. v. Basic Bus. Alternatives, 213 Ga. App.

722, 722 (1) (445 SE2d 824) (1994).

      The portions of the recorded plats and deeds evidencing the easement on the

Doxey property are clearly labeled, “bridle trail easement.” The plain and ordinary

meaning of bridle trail or bridle path is “a trail for horseback riding.” The American

Heritage Dictionary, 5th ed. (2020). See also Merriam-Webster Online Dictionary

(2020) (defining bridle path as “a trail suitable for horseback riding”). The term is not

susceptible to any other reasonable interpretation. Accordingly, we conclude that the

unambiguous term “bridle trail” means that the easement is for the purpose of

providing a trail for horseback riding. The fact that the path or trail may also be

suitable for other uses does not render the term “bridle trail” ambiguous.

      (b) Although the easement was designated for use as a bridle trail, a change in

“the manner, frequency, and intensity of use” of the easement within the physical

                                           5
boundaries of the existing easement is permitted without the consent of the other party,

so long as the change is not so substantial as to “cause unreasonable damage to the

servient estate or unreasonably interfere with its enjoyment.” (Citations and

punctuation omitted.) Parris Properties, LLC v. Nichols, 305 Ga. App. 734, 739 (1) (b)

(700 SE2d 848) (2010). Under this principle, the transition of the easement from an

access trail to the park for horseback riding to one for walking and running is

consistent with a change in the “manner, frequency, and intensity of use” and would

be permitted without Doxey’s consent, so long as the change does not cause

unreasonable damage to Doxey’s property or unreasonably interfere with her

enjoyment of her property. The trial court did not consider the potential impact of this

change in use and we therefore remand for further proceedings on that issue.2

      2. Doxey contends that the trial court erred by finding that the bridle trail

easement had not been abandoned by nonuse.




      2
          If the trial court concludes that the easement will not cause such damage or
interference, the court is also instructed to consider and make clear who is entitled to
access to the easement based on a reference to the easement in a recorded plat or deed
by which they took title to their property or in a recorded deed or plat in their chain of
title. See Hendley v. Overstreet, 253 Ga. 136, 136-137 (318 SE2d 54) (1984). The two
sentences of paragraph 33 of the trial court’s order are arguably inconsistent on this
issue.

                                            6
      As a general rule, “[a]n easement may be lost by abandonment or forfeited by

nonuse if the abandonment or nonuse continues for a term sufficient to raise the

presumption of release or abandonment.” OCGA § 44-9-6. But where an easement of

way has been acquired by grant, “mere nonuser3 without further evidence of an intent

to abandon such easement will not constitute an abandonment.” Hardigree v.

Hardigree, 244 Ga. 830, 831 (2) (262 SE2d 127) (1979). Instead, the evidence of an

intent to abandon must be clear, unequivocal, and decisive. 905 Bernina Ave. Coop.

v. Smith/Burns LLC, 342 Ga. App. 358, 371 (4) (802 SE2d 373) (2017).

      Evidence was presented that some residents of Oakton initially used the

easement on Lot 28 to gain pedestrian access to the park, and later used the easement

on Lot 27 for the same purpose. In addition, some residents continued to use the

easement on Lot 27 until Doxey blocked access to the park. Under the circumstances,

the trial court did not err in concluding that the easement had not been abandoned. See

Houston v. Flory, 329 Ga. App. 882, 889 (2) (766 SE2d 227) (2014).

      3. Doxey contends that the trial court erred in restricting the testimony of her

prior counsel.



      3
         Black’s defines “nonuser” as “neglect or omission to use an easement or other
right.” Black’s Law Dictionary (6th ed. 1990).

                                          7
      The testimony excluded by the trial court relates to the development of separate

neighborhoods and the use of separate covenants for each neighborhood. Pretermitting

whether the trial court’s ruling was improper, there was no harm. The excluded

testimony related to Sections 1 and 1B of the subdivision, which were not at issue here.

In addition, the witness was later allowed to testify about the fact that Oakton was

divided into sections, that each section had its own set of covenants, and that those

covenants were recorded on separate documents. Accordingly, this contention lacks

merit. See generally Sweat v. Sweat, 281 Ga. 543, 545 (2) (641 SE2d 1) (2007) (to have

reversible error, there must be harm as well as error).

      Judgment vacated and case remanded. Dillard, P. J., and Brown, J., concur.




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