NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: February 21, 2023
S22G0030. WS CE RESORT OWNER, LLC v. HOLLAND et al.
PINSON, Justice.
A resort community in North Georgia includes a golf course
next to a subdivision. The current owner of the resort wants to
redevelop the golf course into a residential property, and several
homeowners in the subdivision sued to stop it. The trial court
concluded that the homeowners had an easement in the golf course
and granted a permanent injunction preventing the course from
being put to any other use, and the Court of Appeals affirmed.
We granted certiorari and now vacate the Court of Appeals’
decision and remand for further proceedings. Both courts below
concluded that the homeowners acquired an easement in the golf
course because their lots were bought with reference to a subdivision
plat that designated a “golf course” next to the subdivision. That
conclusion relied on a long line of our decisions recognizing that
easements in features like streets, parks, and lakes could be
acquired on this basis, which amounts to an easement by express
grant. But golf courses are different. Given the wide range of
interests that an easement in a golf course could possibly include—
interests in a view, access, use, or enjoyment, to name a few—merely
designating a “golf course” on a subdivision plat and selling lots with
reference to the plat cannot give reasonable certainty as to the scope
of a claimed easement. And unlike with streets and parks, we are
not aware of longstanding and settled expectations about golf
courses from which intent to grant easements of reasonably certain
scope may be inferred. So, although subdivision owners might be
able to acquire an easement in a given adjacent golf course, the
intent to convey such an interest must be shown through evidence
based in the relevant documents taken as a whole, rather than
presumed based on the golf course’s mere designation on a plat. For
these reasons and more set out below, we vacate the contrary
decision below and remand for further proceedings consistent with
2
this opinion.
1. Background
(a) The Land
In 1993, Fountainhead Development, Inc. developed the
Chateau Elan resort property, which is currently owned by
appellant WS CE Resort Owner, LLC (the “resort owner”). Chateau
Elan includes hotels, a spa, a winery, a tennis center, an equestrian
center, residential subdivisions, and four golf courses, including the
nine-hole “Par 3 Course” at issue here. The Par 3 Course is adjacent
to a residential subdivision known as the “Manor Homes” division.
In 1995, a surveyor, Donald Jones, prepared “The Final Plat
for Executive Estates – Block A.” The Plat was a representation of
the Manor Homes subdivision, and also noted the owners and uses
of some adjacent properties. On the other side of one boundary of the
subdivided area, the plat listed “Fountainhead Development, Inc.
(Golf Course).” The adjacent properties were noted on the Plat only
generally, with no delineation of boundary lines, specification of
acreage, or identification of reference points. Jones stated in an
3
affidavit that listing adjacent property owners was “typical for plats
and [per] local subdivision regulations,” but that he did not survey
the adjacent golf course and did not intend to include the golf course
as part of the Plat.
A realtor for Chateau Elan, Ben Harrison, testified that within
the Chateau Elan development, residential lots were known for
having either a wooded view or a golf course view, with the golf
course views being more expensive. As part of Harrison’s pitch to
prospective buyers, he would share with them the Master Site Plan,
which showed three 18-hole golf courses and the nine-hole Par 3
Course, as well as wooded-view and golf course-view residential lots.
He also showed them a marketing brochure for the Manor Homes
subdivision, which noted various amenities of the Chateau Elan
property, including the golf courses. The brochure explained that
“[t]his year we will be introducing an exciting new ‘Manor Home’
development of smaller homes overlooking the Par 3 golf course.”
(b) The Homeowners
Evelyn and John McCarthy (with Harrison’s help) purchased a
4
lot in the Manor Homes subdivision in 1995. Evelyn testified that
the couple were “especially interested” in the lot “because it was
adjacent to an existing Par 3 Golf Course and had a good view of the
golf course from its back yard,” and that that particular lot’s
proximity and access to the course was the “sole reason” for their
purchase. In purchasing their home, the McCarthys relied on the
Master Site Plan and marketing brochure provided to them by
Harrison. The McCarthys paid a $15,000 site premium for their lot,
which they understood to be because of its proximity and access to
the course. The couple played golf on the Par 3 Course, enjoyed their
view daily, and also received a free discount card for the course “by
virtue of being a homeowner.”
Thomas and Connie Holland (with the help of Harrison and the
president of Fountainhead) purchased a lot in the Manor Homes
subdivision in 1996. Thomas testified that the couple were
“especially looking for a home in a golf community.” He noted that
“[t]he Par 3 Golf Course was an essential part of the concept [of
buying a home in Manor Homes]…We were very much drawn to the
5
Manor Homes because of the Par 3 Golf Course.” The Hollands paid
a $15,000 site premium for their lot, which they understood to be
because of its proximity to the course. The Hollands relied on the
Plat’s depiction of the Par 3 Course as adjacent to the Manor Homes.
(c) Proposed Redevelopment of the Par 3 Course
According to the resort owner, the Par 3 Course is not
profitable. As a result, the resort owner applied to rezone the Par 3
Course to enable its conversion into a residential development. After
its rezoning application was granted, Evelyn McCarthy 1 and the
Hollands (collectively, the “homeowners”) sued the resort owner in
Barrow County Superior Court, seeking (1) an interlocutory
injunction to enjoin the resort owner from “taking any action to
change use of Par 3 Course”; (2) a declaratory judgment that (a) the
Par 3 Course is subject to a use restriction limiting the use to
operation as a golf course, (b) the use of the property as a golf course
cannot be eliminated, and (c) the Par 3 Course cannot be converted
to residential uses or any uses other than that as a golf course; and
1 John McCarthy passed away in 2008.
6
(3) attorney fees.
(d) Decisions Below
The parties cross-moved for summary judgment. The trial
court granted summary judgment to the homeowners, finding that
they had established an implied easement that required the resort
owner to keep the Par 3 Course operating as a golf course. The court
found that an easement had been created by two different methods,
which it called the “common-grantor” and “oral assurances”
methods, relying on Peck v. Lanier Golf Club, Inc., 315 Ga. App. 176
(726 SE2d 442) (2012).
Applying Peck’s common-grantor method, the trial court looked
to the plat and other evidence to determine whether the Par 3
Course was “set apart” for the homeowners’ use. The court concluded
that it was, noting that the plat included “Fountainhead
Development, Inc. (Golf Course)” as a description of property
adjacent to the subdivision, McCarthy’s status as a homeowner in
the Manor Homes gave him a special use discount on the course, and
the homeowners had paid a premium price to “purchase[] an
7
adjacency and proximity” to the course.
Applying Peck’s oral-assurances method, the trial court also
found that Fountainhead had made oral assurances to the
homeowners that the Par 3 Course would remain a golf course. The
court pointed out that Fountainhead’s marketing materials
advertised the Manor Homes as “overlooking the Par 3 Course,” and
that Fountainhead told buyers they would be buying lots “in a golf
course community” and that they could use the course.
Based on these findings, the trial court held that the
homeowners were entitled to a permanent injunction “preventing
[the] Par 3 [C]ourse from being put to any other use.”
The resort owner appealed, and the Court of Appeals affirmed.
The Court of Appeals agreed with the trial court that an easement
had been created under Peck’s common-grantor method. See WS CE
Resort Owner, LLC v. Holland, 360 Ga. App. 720, 725-732 (860 SE2d
637) (2021). The court explained that the homeowners purchased
their lots according to a recorded plat that showed the Par 3 Course
next to the Manor Homes subdivision, and that the homeowners
8
paid a site premium for that proximity to the course, which, the
court held, was enough to acquire an easement. See id. The Court of
Appeals also upheld the injunction, concluding that the trial court
order had sufficiently described the Par 3 Course and the acts to be
restrained in relation to it. See id. at 732-735.
We granted certiorari.
2. Analysis
(a) Speaking generally, an easement is an interest in land
owned and possessed by another. See, e.g., Hollomon v. Bd. of Educ.
of Stewart County, 168 Ga. 359, 364 (147 SE 882) (1929) (“[a]n
easement is a right in the owner of one parcel of land, by reason of
such ownership, to use the land of another for a special purpose not
inconsistent with the general property in the owner”) (citation and
punctuation omitted). See also Southern Ry. Co. v. Wages, 203 Ga.
502, 503 (1) (47 SE2d 501) (1948) (holder of an easement has an
interest in “realty” but “is not the owner or occupant of the estate
over which the right extends”); Daniel F. Hinkel, 1 Pindar’s Ga. Real
Estate Law & Procedure § 8:1 (7th ed., Apr. 2022 update)
9
(“Pindar’s”); Jon W. Bruce & James W. Ely, Jr., The Law of
Easements & Licenses in Land § 1:1 (Aug. 2022 update). That
interest, which can be created in a number of ways, see OCGA § 44-9-1, typically amounts to some limited right to use the land—
common examples include the right to access utilities (like power or
gas lines), see Simpson v. Colonial Pipeline Co., 269 Ga. 520, 521 (2)
(499 SE2d 634) (1998) (gas utility had easement in its gas pipelines
across homeowners’ property); Georgia Power Co. v. Leonard, 187
Ga. 608, 609 (1 SE2d 579) (1939) (electric utility held easement
giving it “the privilege of erecting and maintaining a power line
over” subject property while landowner reserved “the right of
cultivation and ingress and egress”), or to access other land, see
Sadler v. First Nat’l Bank of Baldwin County, 267 Ga. 122, 122 (475
SE2d 643) (1996) (bank held easement in access road across other
property).
This case concerns a kind of easement specific to residential
subdivisions. Georgia law has long recognized that when a developer
conveys lots with reference to a subdivision plat, the grantees may
10
receive easements in certain features—mostly streets and parks—
that are designated on the plat. See Stanfield v. Brewton, 228 Ga.
92, 94-95 (1) (a)-(b) (184 SE2d 352) (1971) (citing Schreck v. Blun,
131 Ga. 489 (62 SE 705) (1908)) (explaining that “[w]here the owners
of a tract of land subdivide it into lots, record a map or plat showing
such lots, with designated streets and a public park, and sell lots
with reference to such map or plat,” the purchasers “have an
easement in these public areas”); East Atlanta Land Co. v. Mower,
138 Ga. 380 (75 SE 418) (1912); Ford v. Harris, 95 Ga. 97, 101 (22
S.E. 144) (1894) (“If the owner of land lays out streets and alleys,
and afterwards sells lots bounding upon them, . . . the purchasers of
those lots acquire the right to have the strips designated as streets
remain open for their use as a perpetual easement over the ground
for ingress to and egress from their property.”); 1 Pindar’s § 8:15.
Our early decisions recognizing the rights of subdivision lot
owners in streets and parks designated on their plats were often
grounded in a theory of estoppel. The reasoning went that
subdivision developers include features like streets and parks to
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“mak[e] the residence lots more desirable to prospective
purchasers,” Caffey v. Parris, 186 Ga. 303, 306 (1) (197 SE 898)
(1938), and conveying those lots with reference to a unified plan that
integrates and designates those basic features is a “representation”
that the features are meant for the grantees’ future use and
enjoyment. Schreck, 131 Ga. at 492. Because “it is just to presume
that purchasers paid the added value” for the benefits of living next
to a park or within a convenient network of streets, Adair v.
Spellman Seminary, 13 Ga. App. 600, 606 (79 SE 589) (1913), the
purchaser had “a right to rely upon the plan which the grantor
promulgated, and on which he acted,” Schreck, 131 Ga. at 491
(explaining that “[s]ome of the considerations inducing the
purchase” of a lot with reference to a subdivision plat that
designated a street “may have been the probability of having
neighbors, particular uses to which the purchased premises might
be put because of the street, and the prospect of an advance in value
from buildings to be erected on other lots”). See also Adair, 13 Ga.
App. at 606 (“[c]ertainly, as every one knows, lots with convenient
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cross streets are of more value than those without”); 1 Pindar’s §
8:15 (“The fact that a lot is surrounded by a network of streets and
alleys is generally considered as greatly increasing its market value
through added accessibility, availability of public utilities and
services, and the attraction of desirable neighbors.”). So, when a
subdivision owner sold lots with reference to a plat that designated
streets or parks, we would hold that the seller was “estopped from
asserting a claim adverse to the right of the purchasers” to use the
streets and parks and have them kept open for their use. Caffey, 186
Ga. at 306 (1). See Tietjen v. Meldrim, 169 Ga. 678, 697 (151 SE 349)
(1930) (“When a grantor sells lots of land . . . shown upon a plat . . .
referred to [in the deeds] as laid out in a subdivision of the grantor’s
land, he is estopped to deny the grantee’s right to use the streets
delineated in such plat.”); Mower, 138 Ga. at 388 (“[I]f the lots were
sold with reference to the plats which contained a delineation of the
parks, and the original purchasers bought with reference thereto,
the seller is estopped from setting up a claim adverse to the right of
private individuals, or their assigns, who so bought.”); Schreck, 131
13
Ga. 489; Ford, 95 Ga. 97. See also Law of Easements & Licenses in
Land § 4:30 (explaining that easements implied from deed
descriptions may be grounded in an estoppel theory, citing Hamil v.
Pone, 160 Ga. 774 (129 SE 94) (1925), among other decisions).
This estoppel theory, however, has given way in our decisions
to the view that these interests in streets and parks acquired by
owners who buy lots with reference to subdivision plats are in fact
easements acquired by “express grant.” Walker v. Duncan, 236 Ga.
331, 332 (223 SE2d 675) (1976). The rationale is mostly the same: it
still starts with the understanding that conveying lots with
reference to a subdivision plat that integrates features like streets
and parks can represent that they are “set apart for” the grantees’
use. Id. And this inference is still strengthened by the commonsense
presumptions that developers include these features to induce
buyers to buy, and pay more for, their property. See, e.g., Higgins v.
Odom, 246 Ga. 309, 309-310 (271 SE2d 211) (1980) (in holding that
the sale of lots by reference to a subdivision plat with “a lake area
designated on it” granted an easement in the lake, explaining that
14
“[t]he availability of the lake constitutes a material part of the value
of the adjoining property, and is often the principal incentive for its
purchase”) (citation omitted); Walker, 236 Ga. at 332 (explaining
that “[t]he property owners were enticed into purchasing their lots,
and presumably paid a greater price for them, by the implied
promise of the developer to preserve this lake area as a park”). This
inference, however, is more than a basis for estoppel: because the
plat in these cases is a graphical representation of the plan the
purchaser is buying into, we have recognized that the grantees who
buy with express reference to the plat have “as effectively acquired
an easement [in the streets or parks designated on the plat] as if the
deed had specifically granted it.” Westbrook v. Comer, 197 Ga. 433,
439 (29 SE2d 574) (1944). See also Tietjen, 169 Ga. 678; Law of
Easements & Licenses in Land § 4:31 (putting Georgia decisions in
category of cases that “suggest that such easements are really
express servitudes because they are graphically represented on the
plat” (citing, among other decisions, Sadler, 267 Ga. 122; Fairfield
Corp. No. 1 v. Thornton, 258 Ga. 805 (374 SE2d 727) (1989); Smith
15
v. Gwinnett County, 248 Ga. 882 (286 SE2d 739) (1982); Walker, 236
Ga. 331)).
(b) Of course, not every word or mark that designates property
on a subdivision plat grants an easement to lot owners. For example,
subdivision plats routinely identify or describe the various lots in
the subdivision as well as neighboring properties, but no one would
seriously suggest that a lot owner who buys with reference to the
plat gets an easement in all of their neighbors’ property merely
because it is labeled. 2 Instead, the question is whether we can infer
from the designation on the subdivision plat a “clear intent” to set
apart the designated area for the lot owners’ use or enjoyment.
Miller v. Wells, 235 Ga. 411, 416 (219 SE2d 751) (1975), disapproved
on other grounds, Wheatley Grading Contractors, Inc. v. DFT Invs.,
Inc., 244 Ga. 663 (261 SE2d 614) (1979). See also Goodyear v. Tr. Co.
Bank, 247 Ga. 281, 285 (2) (276 SE2d 30) (1981) (declining to
recognize that lot owners in beach subdivision had a recreational
2 Georgia’s standards for property surveys require plats to include “[t]he
names of adjacent property owners on all lines” of the plat. Ga. Comp. R. &
Regs., r. 180-7-.07 (d) (14).
16
easement in beach because the plats in question “do not indicate any
intent on the part of the developer to create” such an easement);
Rolleston v. Sea Island Properties, Inc., 254 Ga. 183, 184 (1) (327
SE2d 489) (1985) (explaining that in Goodyear, “the crucial inquiry
was to look at the intent of the parties at the time of the conveyances
to determine if any recreational easement had been conveyed”);
Smith v. Bruce, 241 Ga. 133, 143 (1) (244 SE2d 559) (1978) (focusing
inquiry on the “intent of the subdivider to grant easements in this
open area”); Walker, 236 Ga. at 332 (“It is well-established that
where a developer sells lots according to a recorded plat, the
grantees acquire an easement in any areas set apart for their use.”).
(i) For a small category of features, designating them
appropriately on the subdivision plat is enough, absent contrary
evidence based in the plat or deed, to demonstrate clear intent to
grant an easement in the features to lot owners who bought with
reference to the plat. Our decisions have included in this category
(1) streets designated and laid out on the subdivision plat, see
Schreck, 131 Ga. 489; Ford, 95 Ga. 97; (2) parks, see Caffey, 186 Ga.
17
303; Mower, 138 Ga. 380; and (3) lakes, which we have equated to
parks, see, e.g., Higgins, 246 Ga. 309; Walker, 236 Ga. 331.
These features share two related things in common. First,
there is simply a well-settled understanding, reflected in more than
a century of our decisions, that when these basic features are
designated on a subdivision plat, there is ordinarily no reason to
doubt that they are included as part of the unified plan for the
subdivision and meant for the lot owners’ use. See, e.g., Hendley v.
Overstreet, 253 Ga. 136, 136 (318 SE2d 54) (1984) (“It is well settled
that when a subdivision contains an attraction such as a park or
lake which renders the lot more desirable, the sale of lots in
reference to a plat showing the attraction will create an irrevocable
easement in such an area for the lot owners.”). Second, these are the
sort of features for which designation or delineation on the plat alone
can give reasonable certainty about the scope of the easement
granted. See Macon-Bibb County Indus. Auth. v. Cent. of Ga. R.R.
Co., 266 Ga. 281, 283 (3) (466 SE2d 855) (1996) (“An express grant
of an easement must contain language sufficient to designate
18
with reasonable certainty the land over which it extends.” (quoting
1 Pindar’s § 8:18)); Howard v. Rivers, 266 Ga. 185, 186 (2) (465 SE2d
666) (1996) (“The description of an easement is sufficient if it
provides a key so that the land where the easement is located can be
identified.”). When a subdivision plat designates a strip of land as a
street, it conveys with reasonable clarity that purchasers would
acquire a right to have the strip “remain open for their use . . . for
ingress to and egress from their property”—that is, to use it as a
street. Ford, 95 Ga. at 101. The same goes for a park or lake: when
these open and passive recreational features are delineated on a
plat, the designation itself identifies with reasonable certainty an
easement for recreational use that extends across the delineated
area. See, e.g., Mower, 138 Ga. at 391 (“The word ‘Park,’ written
upon a block of land designated upon a map, is as significant of a
dedication, and of the use to which the land is dedicated, as is the
word ‘street,’ written upon such map. The word carries with itself
the idea of an open or enclosed tract of land for the comfort and
enjoyment of the inhabitants of the city or town in which it is
19
located, and is so defined by lexicographers. . . . In London, as well
as in any city in this country, the term ‘park’ signifies an open space
intended for the recreation and enjoyment of the public, and this
signification is the same, whether the word be used alone or with
some qualifying term, as Hyde Park, or Regent’s Park, or, as in the
present case, ‘Central Park.’” (quoting Archer v. Salinas City, 28 P.
839, 841 (Cal. 1892)); Higgins, 246 Ga. at 310 (lake designated on
plat “should be regarded as in effect a dedication of the lake as a
recreational area for the benefit of all adjoining owners”). In other
words, settled expectations rooted in more than a century of practice
and the relative ease with which the scope of an easement in these
features can be discerned support a strong presumption that
designating these features on a subdivision plat conveys an intent
to grant an easement to lot owners who buy with reference to the
plat.
(ii) For other kinds of features, however, our decisions have not
accepted mere designation on a subdivision plat as sufficient indicia
of intent to grant an easement.
20
In a series of decisions involving asserted easements in
beaches, rather than simply noting that lots were sold with
reference to a subdivision plat that designated the beach areas in
question, we looked to the plat as a whole (and the deed referencing
the plat) for evidence of the developer’s intent to grant easements.
See Rolleston, 254 Ga. at 183-184 (1); Goodyear, 247 Ga. at 285 (2);
Smith, 241 Ga. at 141-143 (1). In Smith, for example, we concluded
that a sale with reference to a plat granted easements in the beach
designated on it based on a list of clues from the plat that established
the requisite intent, including
“[t]he naming of the subdivision, ‘East Beach
Subdivision’; the subdividing of practically all of the land
area owned except the beach area; the designating of the
front or easternmost street as ‘Beach Drive’; the leaving
of an open area between an area designated as ‘smooth,
hard beach’ and ‘Beach Drive’ without any reservations;
the entering on the plat ‘Atlantic Ocean’; the failure to
afford otherwise any reasonable means of access from the
lots and streets in East Beach Subdivision to the smooth,
hard beach and ocean; the designation of a line as ‘mean
high water line’ between the area designated as smooth,
hard beach and ‘Beach Drive’; and the selling of one or
more lots referring to such area in the recorded plat.”
Id. at 142 (1). And we reached the opposite conclusion in Goodyear
21
because the plats in question included “express reservation[s]” as to
the beach and did not otherwise “indicate any intent on the part of
the developer to create a recreational easement.” 247 Ga. at 285 (2).
See also Rolleston, 254 Ga. at 183-184 (1) (pointing out that “the
crucial inquiry” in Goodyear “was to look at the intent of the parties
at the time of the conveyances to determine if any recreational
easement had been conveyed” and reaffirming conclusion that plats
in those cases did not show intent to convey easement in beach areas
in question).
We also rejected the simplified plat-designation-as-intent
analysis that we had applied to streets and parks in concluding that
subdivision lot owners did not have an easement in a “commercial
boating and swimming venture.” Altman v. Quattlebaum, 253 Ga.
341, 342 (1) (320 SE2d 179) (1984). The venture had been in
existence (and owned by the subdivision developer) when it was
designated on the subdivision plat as a “Recreational Center.” Id. In
denying the lot owners’ easement claims, we pointed out that while
the venture was in operation, “subdivision lot owners, as well as
22
members of the general public, were charged fees for boating and
swimming privileges” there; the tract “was under fence, except for
the lake frontage, and it was closed each year to everyone from after
Labor Day until early April”; “[n]o subdivision lot owner ever
complained of having to pay use fees, or of being excluded during the
fall and winter seasons, or of exclusion from the tract while used by
the YMCA, or when it was closed later to all uses”; and “[t]here were
no deed covenants, plat restrictions, or property association
agreements in reference to the tract.” Id. Although there was
“testimony that some subdivision lot owners had used picnic
facilities without charge,” the evidence as a whole did not establish
any “right to use the tract” in favor of the lot owners. Id.
We did not explain in these decisions why we required a
demonstration of intent to convey an easement based on the deed
and plat as a whole rather than the simplified analysis used for
streets, parks, and lakes. But the distinction we identify today is
reasonable. We are aware of no longstanding or entrenched
expectations about beaches or active businesses like those
23
animating our decisions recognizing easements-by-subdivision-plat
in streets, parks, or lakes. That difference alone seems enough to
decline to extend the near-automatic recognition of such easements
to other features. In addition, at least for the swimming and boating
venture (and other active businesses open to the public), designation
or delineation on the plat alone would not normally provide enough
certainty about the nature or scope of the easement granted as
would designating a passive feature like a street, park, or lake.
Simply put, it is not clear or obvious to us what property interests a
lot owner’s “easement” in an adjacent business might include, and
such uncertainty cuts against recognizing such an easement based
on only the business’s mere designation on a plat.3
*
In sum, our easement-by-subdivision-plat decisions have
distinguished between easements in two kinds of features.
3We acknowledge that beaches do not seem all that different from parks
or lakes in this regard, but the lack of well-settled expectations about beaches
as integrated features of subdivisions, at least as far as our decisions show, is
enough to distinguish them from streets, parks, and lakes.
24
Historically, easements in basic features like streets, parks, and
lakes that are integral parts of a unified subdivision plan, the scope
of which typically can be ascertained with reasonable certainty from
their mere designation on the plat, can be granted by such
designation plus sale of lots with reference to the plat. Before
recognizing easements in other features, by contrast, our decisions
have required a more traditional showing of intent inferred from
evidence based in the relevant documents taken as a whole.
(c) Do golf courses fall into the limited category of features for
which recognizing an easement-by-subdivision-plat is nearautomatic? We cannot reject the idea out of hand. As with streets,
parks, and lakes, developers almost certainly include golf courses in
subdivision plans to induce buyers to buy, and pay more for, lots in
those subdivisions, and those buyers might reasonably expect the
promised golf course to be built, maintained, and operated for their
use or enjoyment for years to come. These sound like some of the
reasons our past decisions have given for recognizing easements-bysubdivision-plat as a general matter.
25
But the reasons for recognizing easements in streets, parks,
and lakes based on plat designations alone—rather than the more
typical showing of intent we have required for other features—do
not apply to golf courses. First, whatever assumptions based in
common sense or experience one might have about golf course
subdivisions, they pale in comparison to the longstanding and
widely accepted understanding about the meaning of designating
streets or parks on a subdivision plat. The ease with which our
decisions have recognized easements in these features based on
mere plat designations comes in large part from more than a century
of settled expectations about the intent that can be inferred from
such designations. See Ford, 95 Ga. at 101; Mower, 138 Ga. at 391.
We are not aware of (and the parties have not identified) any even
remotely similar set of longstanding expectations about golf courses.
Second (and related to the first reason), merely designating a
golf course on a plat, without more, typically does not give
reasonable certainty about the scope of any easement in it. See
Howard, 266 Ga. at 185 (2); 1 Pindar’s § 8:18. The difficulty is that
26
there is much more to a golf course than a mere strip of land or open
area. Even at its most basic, a golf course is an area of land that is
laid out and actively maintained in a configuration and condition
that allows someone to play the game of golf on it. See, e.g., Golf
course, Merriam-Webster's Unabridged Dictionary,
https://unabridged.merriamwebster.com/unabridged/golf%20course (last visited January 25,
2023) (“an area of land laid out for the game of golf with a series of
9 or 18 holes each including tee, fairway, and putting green and
often one or more natural or artificial hazards”). Anyone familiar
with golf courses would likely also expect one to include basic
supporting amenities: golf carts, a clubhouse with restrooms and
locker rooms, a pro shop, and even some kind of food and beverage
service. And as far as we know, developing and maintaining all of
these things that make up a typical golf course requires an ongoing
business. 4
4This brief description of a generic golf course and its expected features
should not be taken as an opinion, authoritative or otherwise, about the
27
This relative complexity means it is not at all obvious what an
easement in any given golf course might look like. Would it give a
lot owner merely the right to a view of something that looks like a
golf course, or a greater right to access or even play golf on the
course? If the interest includes access, could the lot owner traverse
the entire property? This is not to say that lot owners could never
acquire an easement in a golf course. But it does mean that, in
contrast to streets, parks, and lakes, merely printing the phrase
“golf course” on a subdivision plat does not provide reasonable
certainty as to the scope of a claimed easement in the golf course.
The range of possible property interests a lot owner might desire or
expect from such an easement is too wide, and no longstanding or
settled expectations exist to narrow or fix the interests in question.
fundamental characteristics of a “golf course” or the game of golf. We leave
such questions to the proper authorities. Cf. PGA Tour, Inc. v. Martin, 532 U.S.
661, 700 (121 SCt 1879, 149 LEd2d 904) (2001) (Scalia, J., dissenting)
(declaring (with no small amount of sarcasm) that “[i]t has been rendered the
solemn duty of the Supreme Court of the United States, laid upon it by
Congress in pursuance of the Federal Government’s power ‘to regulate
Commerce with foreign Nations, and among the several States,’ to decide What
Is Golf.” (cleaned up)).
28
The bottom line is that golf courses do not fall into the limited
set of features for which a plat designation alone presumptively
demonstrates the clear intent needed to recognize an easement in
those features. Instead, the necessary intent must be demonstrated
case-by-case through evidence based in the deed and plat as a whole.
See Smith, 241 Ga. at 142 (1); Goodyear, 247 Ga. at 285 (2); Altman,
253 Ga. at 342.
(d) Here, the Court of Appeals concluded that the lot owners
acquired an easement in a golf course based only on a showing that
the lot was purchased with reference to a recorded subdivision plat
that “depicted” the course adjacent to the subdivision and paid a
premium for the lot’s proximity to the course. See WS CE Resort
Owner, LLC, 360 Ga. App. at 725-726. That conclusion was
understandable: our body of easement-by-subdivision-plat decisions
is old and messy, and the distinction between the simplified platdesignation-plus-sale analysis and the broader intent analysis was,
until now, implicit. But because our holding today rejects the former
analysis for golf courses, we vacate the Court of Appeals’ decision
29
and remand for further proceedings. 5
On remand, the key question is simply whether the intent to
grant an easement in the golf course was shown with sufficient
clarity. Our past decisions addressing that question outside of the
special cases of streets, parks, and lakes offer some guidance. In
those decisions, we looked to evidence based in the deed and plat as
a whole and considered, for example, how integral to the subdivision
the feature in question appeared, see Smith, 241 Ga. at 142 (1)
(noting centrality of beach to subdivision based on names of
5 We also disapprove the Court of Appeals’ earlier decision in Peck v.
Lanier Golf Club, Inc., 315 Ga. App. 176 (726 SE2d 442) (2012), to the extent
that it applied the same plat-designation-plus-sale analysis to golf courses.
We further note that some decisions of the Court of Appeals appear to
have required proof that a lot owner actually paid a premium for her lot as a
prerequisite for recognizing an easement by subdivision plat. See WS CE
Resort Owner, LLC, 360 Ga. App. at 727-728; Camp Cherokee, Inc. v. Marina
Lane, LLC, 316 Ga. App. 366, 369 (729 SE2d 510) (2012) (concluding that no
implied easement existed for lake access, where the lake was not set apart for
the lot owners’ use when there was no evidence that the owners paid premiums
for their lots and the lots were not adjacent to the lake); Peck, 315 Ga. App. at
179 (explaining that to establish an implied easement in a subdivision golf
course, plaintiff had to show that he purchased lot according to plat and that
he “paid more” for a “golf course lot”). Although our decisions recognizing such
easements have noted that lot owners paid or “presumably paid” a premium
for lots that reflects the enhanced value created by including features like
streets, parks, or lakes, we see no basis in those decisions for requiring specific proof of such higher payments to establish that an easement was granted. We
disapprove these decisions to the extent they impose such a requirement.
30
subdivision and street, among other things); whether the feature
was included without any express reservations, see Smith, 241 Ga.
at 142 (1) (open beach area noted on plat “without any
reservations”); Goodyear, 247 Ga. at 285 (2) (noting “express
reservation” made to use and title in the soft sand beach in
question); and whether the plat provided for other reasonable access
to the feature, see id.
Other questions may inform this intent analysis for a golf
course. For example, North Carolina courts addressing whether lot
owners had an easement-by-subdivision-plat in a golf course have
looked to how precisely the golf course was depicted on the plat: in
their view, plats did not show that a developer “clearly intended” to
grant an easement in the golf course when they (1) included a
“dotted line location of the golf course greens and fairways” with no
metes and bounds, Friends of Crooked Creek, L.L.C. v. C.C. Partners,
Inc., 802 SE2d 908, 914 (N.C. Ct. App. 2017); (2) showed “golf course
holes . . . depicted adjacent to some of the residential lots” with the
“outer boundaries” of the golf course “either not marked at all or . . .
31
depicted with dotted lines” with no metes and bounds, Home Realty
Co. & Ins. Agency, Inc. v. Red Fox Country Club Owners Assn., Inc.,
852 SE2d 413, 427 (N.C. Ct. App. 2020); or (3) did not “depict the
entire Subject Property, complete with a metes and bounds
description, being used as a golf course” but only “label[ed] or
illustrate[d]” some of the holes of a golf course and did not
“demarcate between areas labeled as a golf course” and other “future
development,” Cape Homeowners Assn., Inc. v. Southern Destiny,
LLC, 876 SE2d 568, 576 (N.C. Ct. App. 2022). The second of these
decisions explained that “because nothing on the plat or referred to
therein would enable a title attorney to determine the precise
boundaries of the area burdened with the [golf course] easement, the
plat is not capable of describing or reducing an easement in the golf
course to a certainty.” Red Fox Country Club Owners Assn., 852
SE2d at 427 (cleaned up). Although we do not suggest that North
Carolina easement-by-subdivision-plat law is identical to Georgia’s,
we agree that looking to how precisely the golf course is described
and depicted on the plat is relevant to the intent analysis required
32
by our law, particularly given the need to provide reasonable
certainty as to the nature and scope of any claimed easement in the
golf course. See Macon-Bibb County Indus. Auth., 266 Ga. at 283 (3);
Howard v. Rivers, 266 Ga. 185, 185 (2) (465 SE2d 666) (1996). But
see Murdock v. Ward, 267 Ga. 303, 303 (1) (477 SE2d 835) (1996)
(“[T]he law does not require perfection in the legal description of an
easement.”).
A final point about evidence. Our easement-by-subdivision-plat
decisions have largely focused only on the plat itself (and the deed
that references the plat) to determine whether an easement has
been granted. See, e.g., Goodyear, 247 Ga. at 285 (2) (explaining that
homeowner did not have easement to soft sand portion of beach
because the “plats [did] not indicate any intent…to create a
recreational easement as to the entire soft sand beach”); Smith, 241
Ga. at 141-142 (1) (describing plat and concluding that “the sale of a
single lot with reference to the plat would complete the granting of
an easement”); Caffey, 186 Ga. at 306-307 (1) (referring to plat
showing land subdivided into streets, residential lots, and parks,
33
and concluding that homeowner who purchased lot “with reference
to the plat” acquired easement in park); Schreck, 131 Ga. at 491-492
(holding that where landowner sells land “with reference to” a plat,
the purchaser “has a right to rely upon” an easement shown on the
plat). This approach seems to us most consistent with the rationales
for recognizing this kind of easement, and it is supported by the
practical concern that a title attorney, unaware of extrinsic evidence
like marketing materials or oral assurances made decades ago, still
needs to be able to discern the existence of this kind of easement
through a careful title search. See, e.g., Neeley v. Fields, __ Ga. App.
___ (879 SE2d 728) (2022) (attorneys did not commit malpractice by
drafting warranty deed that stated property was subject to “Utility
Easements, of record, if any,” without specifying any such
easements, because title search would have revealed existing
easement); Smith v. Tolbert, 211 Ga. App. 175, 176 (438 SE2d 655)
(1993) (sellers of land not required to defend purchasers against
easement-holder’s claim to possess easement in fee simple, when
purchasers’ title search revealed existence of easement and
34
purchasers did not include easement in list of matters to be resolved
before closing). See also Merlino v. City of Atlanta, 283 Ga. 186, 188-189 (1) (657 SE2d 859 (2008) (holding that purchaser acquired land
free of an easement when neither title search nor land survey nor
other “ordinary diligence” revealed its existence).
That said, in a couple of these decisions, we have also
considered evidence from beyond the plat and deed. See Altman, 253
Ga. at 342 (1) (considering historical limitations on homeowners’
ability to access and use the commercial boating and swimming
venture at issue, including that they paid fees, that the tract was
fenced except for the lake frontage, and that the business was closed
altogether in the fall and winter); Miller, 235 Ga. at 413-416 (when
plat designated “reserved” strip of land behind residential lots but
was ambiguous as to whether land was reserved for original grantor
or adjacent lots, considering testimony about history of use). We did
not explain in those decisions why we considered such evidence.
Perhaps we applied the rule we have set out for express easements,
which allows consideration of parol evidence if the written
35
instrument is ambiguous. See Irvin v. Laxmi, Inc., 266 Ga. 204, 205
(1) (467 SE2d 510) (1996). That rule makes sense for construing a
true express easement, where the grant of an easement is clear—so
a title search could discover it—and the ambiguity in question would
concern the easement’s scope. See, e.g., Crabapple Lake Parc Cmty.
Assn., Inc. v. Circeo, 325 Ga. App. 101, 105-106, 109 (1) (a) (751 SE2d
866) (2013) (applying ordinary rules of contract construction to
determine scope of express easement and considering parol evidence
to resolve ambiguity). See also Mun. Elec. Auth. of Ga. v. Gold-Arrow
Farms, Inc., 276 Ga. App. 862, 866-867 (1) (625 SE2d 57) (2005)
(explaining that construing the language in express easements is
governed by rules of contract construction, including the
consideration of parol evidence if “the written instrument is
ambiguous”). Or, maybe this question of what evidence is properly
considered to determine the existence of an easement-bysubdivision-plat simply was not raised. In any event, we are
skeptical that evidence from outside the plat and deed is properly
considered, at least as a general matter, in determining whether an
36
easement is created by the sale of a lot with reference to a
subdivision plat rather than with express language in a deed.
The above guidance is just that. The ultimate inquiry cannot
be reduced to a multi-factor test, but rather asks simply whether the
evidence, taken as a whole, demonstrates clear intent to grant an
easement in the property in question. See Miller, 235 Ga. at 416;
Smith, 241 Ga. at 142; Goodyear, 247 Ga. at 285 (2); Altman, 253
Ga. at 342. We leave it to the courts below to answer this question
in the first instance. 6
Judgment vacated and case remanded. All the Justices concur.
6 We leave for remand the question whether any material issues of
disputed fact preclude summary judgment on this question. And because we
vacate and remand the decision below for further proceedings as to the
existence of an easement in the golf course, we also do not reach any questions
about the appropriateness or scope of the trial court’s injunction against the
resort owner. We further express no opinion on whether the trial court
correctly found that an easement was granted under Peck’s oral-assurances
method, although we note that Peck indicates that such method could establish
an “implied covenant,” not an easement. See Peck, 315 Ga. App. at 178, 181
(explaining that the lot owner claimed an “easement or an implied covenant in
the golf course” and citing as support for the “oral assurances” method only
Knotts Landing Corp. v. Lathem, 256 Ga. 321 (348 SE2d 651) (1986), an
“implied covenant” decision).
37