BRANTLEY v. PERRY

Supreme Court of Georgia1904-07-19

120 Ga. 760

Summary · law.co

Holding. The trial court erred in sustaining the demurrer and dismissing the petition. An oral license to drain land across another's property becomes an irrevocable easement when the licensee expends money on valuable improvements in reliance on that permission, and a subsequent purchaser with notice of the easement takes the property subject to it.

The plaintiff purchased land from the Haines family that contained a pond and obtained their oral permission to drain the pond by excavating a ditch across the Haines' remaining property. The plaintiff spent considerable money digging the ditch and improving the land. The Haines subsequently sold their remaining land to the defendant, who had knowledge of the existing ditch. The defendant later filled in the ditch and created embankments that caused water to accumulate on the plaintiff's property, making it unsuitable for cultivation. The plaintiff sought damages and a declaration of his right to maintain the drainage ditch.

The court held that an oral license to use another's land can become irrevocable when the licensee, in reliance on that permission, expends money on valuable and permanent improvements necessary to use the licensed right. Because the plaintiff dug the ditch and made improvements in reliance on the Haines' oral consent before they sold the property, that license ripened into a binding easement. A subsequent purchaser of the burdened land who has notice of the existing easement takes the property subject to it. The trial court therefore erred in dismissing the plaintiff's petition, as the allegations adequately established his legal right to maintain the drainage easement.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an oral license can become irrevocable through expenditure of money and valuable improvements
Whether a drainage easement created by oral license survives transfer of the burdened property
Whether a subsequent purchaser with notice of an easement takes property subject to it

Procedural posture

The plaintiff appealed the trial court's sustaining of the defendant's demurrer and dismissal of the plaintiff's amended petition in the superior court of Laurens county.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Evans, J.

The plaintiff in error complains that the court erred in sustaining a demurrer to a petition filed by him in the superior court of Laurens county. The petition alleged, substantially, that at one time A. I. Haines and M. W. Haines were the owners of a certain tract of land; that they sold petitioner a part of the tract; that a pond was located on the portion of the land purchased by the plaintiff, and that the said Haines consented for him to drain the pond by digging a ditch across their land ; that, acting on this consent, he dug the ditch and cleared the land covered by the pond, expending a large sum of money in this work. The petition further alleged, that after the plaintiff had expended this money in digging the ditch and clearing the land, the Haineses sold the balance of the land, which embraced the land traversed by the ditch, to the defendant, who had actual knowledge that the ditch was cut through the land purchased by him with the consent of his grantors; that the defendant had filled up the ditch and thrown up embankments, causing the water to pond on plaintiff’s land, rendering the same unhealthy and preventing him from cultivating the land. The prayer was for damages and a decree affirming his right to drain his land by means of the ditch. To this petition the defendant filed a general and special demurrer. An amendment was allowed, to meet certain objections raised by some of the special grounds of the demurrer, and the court then sustained the demurrer to the petition as amended and- dismissed the case.

It will be observed that plaintiff and defendant derived title from common grantors, viz. A. I. Haines and M. W. Haines. Plaintiff purchased first and cut the ditch with the consent of the owners of the land traversed by it before they sold to defendant. The consent of A. I. and M. W. Haines for plaintiff to drain his land across their land amounted to a license. Ordinarily, a license burdening real estate with a servitude is made by grant. It may be created by parol. When created by parol, the license is revocable unless the enjoyment of it is preceded necessarily by the expenditure of money and valuable improvements made in consequence of it. When the licensee, on the faith of a parol license from the owner of the fee, expends money and erects valuable and permanent improvements necessary to enjoy the license, he acquires an irrevocable right to all the privileges included in the license. Sheffield v. Collier, 3 Ga. 82; Mayor of Macon v. Franklin, 12 Ga. 239. The owner of a tenement, in licensing an adjoining land proprietor to enter upon his land to construct a ditch for draining the adjacent land of the licensee, consents to burdening his land with this servitude. If, on the faith of this consent, the ditch is dug, and other permanent improvements are made, the licence ripens into an easement. The owner of the servient estate has no right to revoke his license after the licensee has executed it and in so doing has incurred expense. City Council v. Burum, 93 Ga. 74; Southwestern R. R. v. Mitchell, 69 Ga. 123. A purchaser of land who takes it with notice that it is .burdened with an existing easement takes the estate subject to such easement. Rome Gas Light Co. v. Meyerhardt, 61 Ga. 287. The allegations of the petition sufficiently set out that the plaintiff is entitled to the easement of draining his land over the lands of the defendant, and the obstruction of the ditch and denial by defendant of the plaintiff’s right to enjoy the easement gave him a cause of action. The court erred in sustaining the demurrer, and the judgment is

Beversed.

All the Justices concur„