                               THIRD DIVISION
                               DILLARD, P. J.,
                            GOBEIL and HODGES, 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.
                                http://www.gaappeals.us/rules


                                                                    January 16, 2020




In the Court of Appeals of Georgia
 A19A2137. FLOYD et al. v. CHAPMAN.

      HODGES, Judge.

      This dispute concerns a gravel driveway which connects a house constructed

by appellants Marshall Floyd, Jr. and Kathleen Floyd (the “Floyds”) to a roadway by

crossing over land currently owned by appellee James T. Chapman. Both the Floyds

and Chapman acquired their respective land from Marshall Floyd, Jr.’s stepmother,

Patricia Densmore Floyd (“Patricia”). The Floyds petitioned the Superior Court of

Dawson County to recognize that they had acquired a private right of way over

Chapman’s land. Chapman answered and filed a counterclaim, seeking to find the

Floyds liable for trespass and to issue an injunction to prevent the Floyds’ use of the

driveway. The trial court conducted a bench trial and found that the Floyds had not

established a private right of way across Chapman’s property; thus, it found the
Floyds had trespassed upon Chapman’s property and granted Chapman the injunction

he requested. Additionally, the trial court ordered the Floyds to remove an access gate

installed on the driveway as well as underground utility lines they had installed along

the length of the driveway. The Floyds appeal from this order, and for the reasons that

follow, we affirm in part and reverse in part.

      Under Georgia law,

      [t]he [trial] court is the trier of fact in a bench trial, and its findings will
      be upheld on appeal if there is any evidence to support them. The plain
      legal error standard of review applies where the appellate court
      determines that the issue was of law, not fact.


(Citation and punctuation omitted.) Savannah Jaycees Foundation v. Gottlieb, 273

Ga. App. 374, 375-376 (1) (615 SE2d 226) (2005).

      So viewed, the record demonstrates that on May 25, 2006, Patricia gifted the

Floyds a 15-acre tract of land in Dawson County from a larger parcel she owned. The

Floyds built a house on their land, which previously had no structure built on it. The

Floyds’ parcel has road frontage, but rather than construct a new path to connect their

home to the road, the Floyds utilized an old logging road which ran across their

property as well as the property retained by Patricia. The Floyds hauled gravel to the

property to improve the driveway and installed an access gate on the driveway. The

                                             2
Floyds requested that Patricia grant an easement to the utility company for the

installation of underground lines to the Floyds’ home, and Patricia agreed. The

Floyds, however never asked Patricia’s permission to utilize her land for their

driveway, nor did they ever tell her they believed they had a legal right to utilize her

land. According to the Floyds, they did not seek Patricia’s permission to use and

improve the logging road as their driveway because they assumed that Patricia would

grant them the remainder of her land at some point in the future. Patricia never

conveyed to the Floyds an easement for the driveway across her land, but she also

never told them that they could not use her land for the driveway. Patricia visited the

Floyds at their home and was aware of the existence of the driveway, but she assumed

it was contained entirely on the Floyds’ property.

      In 2014, Patricia informed the Floyds that she intended to sell the remainder

of the parcel from which the Floyds’ tract was taken. At that time, Marshall Floyd,

Jr. informed Patricia that the Floyds’ driveway crossed her property and asked her for

an easement. This was the first time that Patricia realized the driveway encroached

on her property, and she never responded to the request for an easement.

      On February 24, 2017, Patricia conveyed the remainder of her parcel to

Chapman via a limited warranty deed which provided that it was subject to all

                                           3
easements for roads and utilities in use or of record. Chapman testified that he is in

the timber business and he intends to use the driveway for logging his property.

Although the parties attempted to work out an agreement for use of the driveway,

they were unable to do so due to Chapman’s intended use of his property, and the

Floyds filed suit asking the trial court to recognize that they obtained a private right

of way over Chapman’s property pursuant to OCGA § 44-9-1.1 Chapman

counterclaimed for trespass and for an injunction to prevent the Floyds from using the

driveway on his property for travel or the underground utility lines.

      The trial court conducted a bench trial at which Patricia, Marshall Floyd, Jr.,

and Chapman testified. After hearing the testimony and reviewing the exhibits

submitted by the parties, the trial court found that the Floyds had not established a

prescriptive right of way. Specifically, the trial court made findings concerning the

historical use of the land, and determined that Chapman’s property constituted wild,

as opposed to improved, land. Consequently, the trial court concluded that, to

establish a prescriptive easement, the Floyds’ use of the gravel driveway would have


      1
        In their petition before the trial court, the Floyds also asserted that they were
entitled to a private right of way by necessity because they were otherwise
landlocked. The Floyds did not pursue this argument at the bench trial and they have
likewise abandoned it on appeal.

                                           4
needed to meet the requirements of OCGA § 44-9-1 for a period of 20 years. As a

result, the trial court denied the Floyds all of the relief they sought, found them to

have trespassed on Chapman’s land, and issued a temporary and permanent injunction

preventing the Floyds from accessing the portion of the driveway located on

Chapman’s land. The trial court also ordered the Floyds to remove both the access

gate they installed on the driveway, as well as the underground utility lines running

along the driveway. The Floyds now appeal.

      1. In two related enumerations of error, the Floyds contend that the trial court

erred in finding that Chapman’s property was wild land and erred in failing to

recognize the gravel driveway as an easement in use or of record at the time Chapman

purchased his property.2 We find no error.

      Georgia law recognizes the ability to obtain a private way over the land of

another “from prescription by seven years’ uninterrupted use through improved lands

or by 20 years’ use through wild lands[.]” OCGA § 44-9-1. “The burden of

establishing prescriptive title lies on the plaintiff.” Murray v. Stone, 283 Ga. 6 (1)


      2
        “For convenience of discussion, we have taken the enumerated errors out of
the order in which [the] appellant[s have] listed them and have grouped together
related enumerations.” Foster v. Morrison, 177 Ga. App. 250 (1) (339 SE2d 307)
(1985).

                                          5
(655 SE2d 821) (2008). In order to establish the existence of a private way over

Chapman’s land, the Floyds were required to show (1) that they, or a predecessor in

title, had been in uninterrupted use of the alleged private way for the period of time

required by OCGA § 44-9-1; (2) that the private way is no more than twenty feet

wide, and that it is the same twenty feet originally appropriated; and (3) that they

have kept the private way in repair during the period of uninterrupted use. See Norton

v. Holcomb, 285 Ga. App. 78, 81 (2) (646 SE2d 94) (2007). Moreover, “[a] claim of

prescriptive title requires proof that the possession did not originate in fraud and was

(1) public; (2) continuous; (3) exclusive; (4) uninterrupted; (5) peaceable; and (6)

accompanied by a claim of right. The use must also be adverse rather than

permissive.” (Citations and punctuation omitted.) Id. at 80-81 (2). However,

      [t]o allow a person to acquire prescriptive rights over the lands of
      another is a harsh result for the burdened landowner. Thus, Georgia
      courts have strictly construed the elements of OCGA § 44-9-1 against
      the party who asserts a right of entry over the lands of another. If the
      prescriber fails to show any of the elements necessary to establish
      prescriptive rights, he cannot recover.


(Citation omitted.) Id. at 81 (2).




                                           6
      It is undisputed that the Floyds have been regularly using and occasionally

improving the driveway for more than seven years but less than twenty years.

Consequently, of particular importance here is whether Chapman’s property is wild

or improved land. “The land which the statute designates as ‘wild’ is that which is

located separate and apart from lands which are partly in cultivation. It is a segregated

tract of land, remaining, as it were, in a state of nature, un[e]nclosed, and with no

indicia pointing to use by the owner.” Hopkins v. Roach, 127 Ga. 153 (56 SE 303)

(1906).

      Here, the trial court, sitting as the trier of fact, concluded that the driveway was

an old logging road that had not been routinely maintained prior to the Floyds’

acquisition of their property. Although timber on Chapman’s land had been subject

to limited harvesting in the past, the evidence at trial did not demonstrate how often

or when the timber was last harvested. The trial court noted that the land had been

used sparingly, primarily to access a rustic hunting lodge3 on the property for

purposes of recreational hunting.4 It further found that the land on Chapman’s

property surrounding the driveway was heavily wooded and had not been developed

      3
          The hunting lodge has no utilities connected.
      4
          There is no evidence in the record that Patricia ever used her land for hunting.

                                             7
for residential, agricultural, or other human use other than the rustic hunting lodge.5

Ultimately, the trial court concluded that Chapman’s property was wild land. The trial

court even noted that the land’s lack of development made it ideal for hunting.

      The trial court’s finding was a mixed question of law and fact. After our review

of the record, we find that the evidence supports the trial court’s factual findings

regarding the condition and use of Chapman’s property. Indeed, our review of the

pictures in the record reveal that the trial court’s use of the term “hunting lodge” to

describe the remnants of a structure on Chapman’s property is generous given its

dilapidated condition. We find no plain legal error in the trial court’s conclusion that,

in light of the condition and use of Chapman’s property, the land was wild.

Accordingly, because the land was wild land, the Floyds were required to establish

prescriptive use of the driveway for 20 years, which they undisputedly did not do. See

OCGA § 44-9-1.6

      5
        In their petition, the Floyds admitted that Chapman’s property “does not
contain any residential or commercial structures.”

      6
       The facts of this case are distinguishable from Henderson v. Cam Dev., 190
Ga. App. 199 (378 SE2d 495) (1989), relied upon by the Floyds. In Henderson, the
evidence demonstrated that the land at issue had previously been cleared and
developed with a house, buildings, a picnic area for members of the local community,
and a barn. Id. at 200. That evidence is quite different from the evidence presented

                                           8
      In light of this holding, we need not determine whether the Floyds’ use of the

driveway actually satisfied the elements of prescriptive use. See Norton, 285 Ga. App.

at 81-84 (2). Moreover, the Floyds’ arguments concerning Chapman’s notice of their

use of the driveway are unavailing. It is true that, even in the absence of a recorded

easement, a purchaser “will be charged with notice of the easement where an

inspection of the premises would have readily revealed such physical facts as would,

in the exercise of ordinary diligence, put him upon inquiry.” Mize v. McGarity, 293

Ga. App. 714, 718 (2) (667 SE2d 695) (2008). However, such law presupposes the

existence of a valid easement. As discussed above, here there is none.

      2. Relying on their argument that they had a prescriptive easement for the

driveway, the Floyds contend that the trial court erred in finding that they trespassed

on Chapman’s land. We disagree.



in this case that Chapman’s property had been logged at some undetermined time in
the past, was currently heavily wooded, contained only a sporadically used
dilapidated hunting lodge constructed by Marshall Floyd, Jr. (who was not the owner
of the property), and was presently utilized only for hunting – an activity which relied
on the undeveloped nature of the property. Indeed, these facts are closer to those
found in Chota, Inc. v. Woodley, 251 Ga. 678, 678-679 (309 SE2d 132) (1983), where
the Supreme Court indicated without discussion that the evidence at trial
demonstrated the land at issue was wild, and then described the land as containing a
road which was currently overgrown, but in the past had been used by those who did
not own the land for travel by mule, wagon, walking, and automobile.

                                           9
      Under Georgia law, “[t]he right of enjoyment of private property being an

absolute right of every citizen, every act of another which unlawfully interferes with

such enjoyment is a tort for which an action shall lie.” OCGA § 51-9-1. “The term

‘property’ includes not only the land possessed, but also the rights of the owner in

relation to that land. The owner has the rights to possess, use and dispose of the

property and the corresponding right to exclude others from using the property.”

(Citations omitted.) Pope v. Pulte Home Corp., 246 Ga. App. 120 (1) (539 SE2d 842)

(2000). “Liability for a trespass upon real property produced by a voluntary act is

absolute and does not have to be grounded in negligence, so long as the act causing

the trespass was intended.” Tacon v. Equity One, Inc., 280 Ga. App. 183, 188 (2) (633

SE2d 599) (2006).

      For the reasons described in Division 1, the Floyds do not possess a

prescriptive easement across Chapman’s property. Consequently, Chapman had the

right to exclude the Floyds from his property and the trial court did not err in finding

that the Floyds’ continued use of the driveway constituted a trespass.

      3. Again, relying on their argument that they possessed an easement across

Chapman’s land, the Floyds contend that the trial court erred in enjoining their use



                                          10
of the driveway on Chapman’s land and in ordering them to remove their gate. We

disagree.

      When this Court reviews an order issuing an injunction, we review “under an

abuse of discretion standard; however, where the issue decided is one of law, not fact,

then the plain legal error standard of review applies.” (Citation and punctuation

omitted.) Glisson v. IRHA of Loganville, 289 Ga. App. 311, 312 (656 SE2d 924)

(2008). Where a landowner faces continued trespass on his land, issuance of an

injunction is proper. Pope, 246 Ga. App. at 120-121 (1) (“Given Pope’s repeated

trespasses and his threats to trespass again, the trial court did not abuse its discretion

in permanently enjoining Pope from continuously trespassing upon Pulte

properties.”). Moreover, a trial court may issue a mandatory injunction requiring a

party to remove an obstruction from a road. See Wheatley Grading Contractors v.

DFT Investments, 244 Ga. 663, 664 (261 SE2d 614) (1979); see also Moss v.

Thomson Co., 212 Ga. 185 (3) (91 SE2d 485) (1956) (“the threatened and attempted

erection of a fence upon the land of another so as to obstruct ingress and egress, and

seriously interfere with the use, occupancy and enjoyment of the property, as alleged

in the instant case, would constitute such a continuous trespass as will be enjoined.”).



                                           11
      Here, for the reasons described in Divisions 1 and 2, the Floyds’ use of the

driveway was a trespass on Chapman’s land. Accordingly, the trial court did not err

in entering an injunction preventing the Floyds’ use of the driveway or in entering a

mandatory injunction requiring the Floyds to remove the gate they erected across the

driveway from Chapman’s property.

      4. Lastly, the Floyds contend that the trial court erred in ordering them to

relocate the existing underground utility traveling along the driveway or obtain

Chapman’s consent and grant of an easement for the lines. We agree.

      Our determination on this issue requires an analysis of the easement Patricia

granted to the utility company, as well as the deed between Patricia and Chapman.

      The construction, interpretation and legal effect of a contract such as an
      easement is an issue of law, which is subject to de novo review. The
      normal rules of contract construction apply, and absent ambiguity that
      cannot be resolved by applying the rules of contract construction, the
      contract remains a question of law. The first rule of contract
      construction is to determine the parties’ intent, and if the language is
      clear the contract shall be enforced according to its clear terms. In fact,
      no construction is even permitted when the language employed by the
      parties in the contract is plain, unambiguous, and capable of only one
      reasonable interpretation.




                                          12
(Citations and punctuation omitted.) Nat. Hills Exchange v. Thompson, 319 Ga. App.

777, 778 (736 SE2d 480) (2013).

      Here, the easement granted by Patricia to the utility company is very broad.

Specifically, the easement states:

      THE EASEMENT GRANTED TO BUILD ELECTRIC LINE TO
      Marshall Floyd KNOW ALL MEN BY THESE PRESENTS, that I,
      the undersigned, Patricia Floyd, for good and valuable consideration, the
      receipt whereof is hereby acknowledged, do I hereby grant unto
      AMICALOLA ELECTRIC MEMBERSHIP CORPORATION, a
      cooperative Corporation, whose street address is Jasper, Georgia, and to
      its successors or assigns the right to enter upon the lands of the
      undersigned, situated in the County of Dawson, State of Georgia, and
      more particularly described as follows:


      97.47 acres, more or less, of Land Lot No. 817, 818 + 883 in the 5th
      District and 1st Section of Dawson, County Georgia. This land is
      bounded as follows: property along Goshen Church Road


      on the north by _______________________, on the south by
      ________________, on the east by ________________________, and
      on the west by _______________.


      Hereby also granting the right to permit the attachment of the wires and
      appliances of any other company, person, or partnership, to said poles,
      and including the right to stretch communication wires on said poles and

                                         13
      to construct, operate, and maintain on the above described lands, and, or
      in, upon all streets, roads or highways abutting said lands, an electric
      transmission or distribution line or systems, and to cut and trim trees and
      shrubbery to the extent necessary to keep them clear of said electric line
      or systems, and to cut down from time to time all dead, weak, leaning or
      dangerous trees that are tall enough to strike the wires in falling.


      As stated above, Chapman’s deed from Patricia stated that he took the land

subject to all easements for roads and utilities in use or of record. The easement for

utilities was filed on August 16, 2006, years before Chapman’s purchase of the

property in 2017. By its plain language, the easement is very broad and places no

limitation on where the utility company could lay its lines. Accordingly, pretermitting

whether the trial court had authority to require the Floyds to remove property

belonging to the utility company, we find that the lines are present on Chapman’s

property pursuant to a valid easement and, thus, the lines do not trespass Chapman’s

property and no legal basis exists to order any party to remove them. For this reason,

the Floyds are also not required to obtain permission from Chapman for the lines to

remain on his property.7 We are not persuaded by Chapman’s argument that the


      7
        We do not agree that the Floyds have entirely waived this argument by failing
to raise it below. Although the crux of the Floyds’ argument at trial was that they
obtained a prescriptive easement to the driveway, they also introduced evidence of

                                          14
power lines could only be run on his property along Goshen Church Road, because

the language of the easement clearly places no such restriction on the location of the

lines. Consequently, the trial court erred in ordering the Floyds to remove the utility

lines or obtain an easement to keep them in place, and this portion of the trial court’s

order is reversed.

      Judgment affirmed in part and reversed in part. Dillard, P. J., and Gobeil, J.,

concur.




the utility easement at the trial. In addition, Chapman’s argument that the Floyds lack
standing to bring this argument is supported by no citation to authority and, thus, it
will not be considered.

                                          15
