Land USA, LLC v. Georgia Power Company , 297 Ga. 237 ( 2015 )


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  • In the Supreme Court of Georgia
    Decided:   June 1, 2015
    S15A0406. LAND USA, LLC v. GEORGIA POWER COMPANY.
    THOMPSON, Chief Justice.
    Appellant Land USA, LLC (“Land USA”) filed suit against Georgia
    Power Company (“Georgia Power”) for quiet title, trespass, and ejectment,
    challenging the validity of an easement Georgia Power claimed on property
    owned by Land USA in Fulton County, Georgia. Finding that Georgia Power
    had a valid easement, the Fulton County Superior Court granted Georgia
    Power’s motion for summary judgment on all counts. Land USA filed a timely
    appeal to this Court. For the reasons discussed below, we affirm the order of the
    trial court in part and reverse and remand to the trial court in part for further
    action consistent with this opinion.
    The underlying facts are not in dispute. In 2009, the Georgia Department
    of Transportation (“GDOT”) began a road-widening project which required
    Georgia Power to update and relocate an electrical transmission line Georgia
    Power had maintained along Donald Lee Hollowell Parkway since the 1960s.
    Seeking to clarify its rights with respect to maintaining the electric line, Georgia
    Power sought an easement from L. J. Fuller, the owner of a piece of property
    (the “Property”) abutting the parkway.1 Among other things, Georgia Power
    sought to explicitly prohibit Fuller and any future owner of the Property from
    building structures within 25 feet of the electrical line’s center. Fuller, however,
    was behind on his property taxes and, on March 3, 2009, the Fulton County
    Sheriff sold the Property at a tax sale to Investga.com, LLC (“Investga”). On
    April 22, 2009, Investga recorded a tax deed on the Property. Although aware
    of the tax sale, Georgia Power continued to negotiate the easement with Fuller.
    After negotiations between Georgia Power and Fuller stalled, Georgia
    Power filed a condemnation action against the Property on July 14, 2009, but
    dismissed the action without prejudice two months later when Fuller granted it
    the requested easement in exchange for $24,000.2 Upon completion of the
    1
    It is undisputed that Georgia Power’s electric line runs along the northern edge of the
    Property with no utility poles or other support structures located thereon. Additionally, there is
    evidence in the record that the electrical lines are actually located within the road’s right-of-way and
    not on the Property.
    2
    According to Georgia Power, Fuller promised to pay the back taxes and redeem the
    Property prior to expiration of the redemption period.
    2
    GDOT road-widening project in January 2010, Georgia Power’s electrical line
    was re-energized and put back into service.
    On March 3, 2010, Investga properly served notices of foreclosure of the
    right to redeem the Property to all interested parties, including Georgia Power.
    Interested parties had until June 10, 2012 to redeem the Property, but none did.
    Thereafter, Investga sold the Property to Land USA and, on December 6, 2013,
    Land USA filed the instant action challenging the validity of the easement
    Georgia Power had obtained from Fuller and sought to maintain over the
    Property. Land USA moved for partial summary judgment and Georgia Power
    filed a cross-motion seeking summary judgment on all of Land USA’s claims.
    Granting summary judgment to Georgia Power, the trial court found Fuller not
    only had the ability to convey an easement to Georgia Power following the tax
    sale of the Property, but that the post-tax sale easement obtained by Georgia
    Power was not extinguished when the redemption period for the Property closed
    without the Property being redeemed. The trial court further determined that
    Land USA’s claims for ejectment and trespass failed as a matter of law because
    the electric line was within the public GDOT right-of-way and did not materially
    3
    encumber the Property,3 the electric line was a necessary and constituent part of
    Georgia Power’s service to the public4 and, as Land USA was neither the true
    owner of the Property nor in possession at the time the line was re-energized, it
    lacked standing to assert a trespass claim against Georgia Power.5
    1. Land USA contends that the trial court erred in finding Georgia Power
    had a valid and enforceable written easement over the Property. Land USA
    contends that the easement Georgia Power obtained from Fuller in 2009 after he
    had already lost the property to a tax sale became a nullity when the property
    was not redeemed after Investga properly invoked the state barment statutes set
    forth in OCGA § 48-4-45, et seq. We agree.
    In Georgia, when property is sold for unpaid taxes, the tax sale purchaser
    obtains a deed to the property. See Bennett v. Southern Pine Co., 
    123 Ga. 618
    ,
    621 (
    51 SE 654
    ) (1905). This deed, however, does not provide the tax sale
    purchaser with absolute title to the property, but rather gives the purchaser a
    3
    See Faulkner v. Georgia Power Co., 
    243 Ga. 649
     (256 SE2d 339) (1979).
    4
    See Waldrop v. Georgia Power Co., 
    233 Ga. 851
    , 853 (213 SE2d 847) (1975).
    5
    See Brown Inv. Group, LLC v. Mayor and Alderman of City of Savannah, 
    289 Ga. 67
    , 68
    (709 SE2d 214) (2011).
    4
    defeasible fee interest therein with the title remaining subject to encumbrance
    for at least one year after purchase due to other interested parties’ statutory
    rights of redemption. See National Tax Funding, L.P. v. Harpagon Company,
    LLC., 
    277 Ga. 41
    , 42 (1) (586 SE2d 235) (2003). As previously outlined by this
    Court,
    [a]fter the tax sale, the delinquent taxpayer or any other party
    holding an interest in or lien on the property may redeem the
    property by paying to the tax sale purchaser the purchase price plus
    any taxes paid and interest. If the property is redeemed, the tax sale
    is essentially rescinded and a quitclaim deed is executed by the tax
    sale purchaser back to the owner of the property at the time of levy
    and sale. . . .This right of redemption, however, may be terminated
    by the tax sale purchaser anytime after one year following the tax
    sale. After that year has run, the tax sale purchaser may ‘terminate,
    foreclose, divest, and forever bar’ all rights to redeem the property
    by giving notice under OCGA § 48-4-40, et seq., (“the barment
    statutes) to all parties with redemption rights. The barment statutes
    apply to ‘all persons having . . . any right, title or interest in, or lien
    upon’ the subject property.
    (Citations omitted.) Id. at 43.
    It is undisputed that at the time Georgia Power sought an easement from
    Fuller in 2009, the last deed in the chain of title to the Property belonged to
    Investga. As the redemption period had not yet terminated, Fuller retained
    possession of the Property. However, he lacked a sufficient interest therein to
    5
    grant Georgia Power the perpetual, express easement it sought. See Georgia
    Lien Services, Inc. v. Barrett, 
    272 Ga. App. 656
    , 658 (613 SE2d 180) (2005)
    (stating that after a tax sale, the record owner has only a right to redeem the
    property, and once that period expires, the former record owner has no interest
    in the property). At best, the easement granted to Georgia Power by Fuller
    conveyed an interest in the Property which provided Georgia Power with a right
    of redemption. See Leathers v. McClain, 
    255 Ga. 378
     (338 SE2d 666) (1986)
    (parties acquiring an interest in property following a tax sale are entitled to
    notice and to exercise the right of redemption).
    Here, Investga gave proper notice under the barment statutes to all
    interested parties, including Georgia Power, of Investga’s intent to foreclose
    redemption of the Property. Had the Property been redeemed by any party, title
    thereto would have reverted to Fuller and the easement Georgia Power
    purchased would have been validated. See OCGA § 48-4-43 (“When property
    has been redeemed, the effect of the redemption shall be to put the title
    conveyed by the tax sale back into the defendant in fi. fa.”). See also Reece v.
    Smith, 
    276 Ga. 404
    , 406 (577 SE2d 583) (2003) (“[A] grantor who conveys by
    warranty deed an interest that he does not then own, but later acquires, will be
    6
    estopped to deny the validity of the first deed.”). When no party redeemed the
    Property within the applicable period, however, the right of redemption was
    foreclosed and fee simple title to the Property vested in Investga. See National
    Tax Funding, LP, supra, 
    277 Ga. at 43
    . As a result, the easement Georgia Power
    obtained from Fuller following the tax sale was extinguished. See OCGA § 44-
    9-7.6
    While OCGA § 44-9-7 does not directly address the viability of an
    easement granted by the defendant in fi. fa. following a tax sale of real property,
    we disagree with the trial court’s determination that this statute has no
    applicability to the facts presented. It is an elementary rule of statutory
    construction that statutes relating to the same subject matter are “in pari materia”
    and must be construed together and harmonized whenever possible. See Snyder
    v. State, 
    283 Ga. 211
    , 214 (657 SE2d 834) (2008); Iglesia Del Dios Vivo
    6
    OCGA § 44-9-7 provides:
    No sale of real property under a fi.fa. for taxes or under a fi.fa. for any assessment for
    improvements shall extinguish or affect any easement or right of way in, over, under,
    or across said real property, which easement or right of way was created by an
    operation of law or by an express grant; provided, however, that an easement or right
    of way created by an express grant must be recorded prior to the recording of the
    fi.fa. for taxes or assessment for improvements under which the real property subject
    to the easement or right of way was sold.
    7
    Columna Y Apoyo De La Verdad La Luz Del Mundo, Inc. v. Downing, 
    321 Ga. App. 778
     (742 SE2d 742) (2013). Here, OCGA § 44-9-7, addresses the effect
    of tax sales of real property on easements and must be construed in relation to
    other statutes which similarly address the effect of tax sales on property rights.7
    See Bennett, 
    supra,
     
    123 Ga. at 621
     (“Tax sales are creatures of statute. When,
    how, and under what circumstances they are to be made, and their effect when
    made, are matters depending upon the statute governing them.”). Of particular
    relevance to this case are those statutory provisions dealing with the rights
    accorded an owner or interest holder in real property to redeem the property
    following a tax sale,8 as well as those providing a means by which the tax sale
    purchaser can foreclose this right of redemption. 9
    Construing OCGA § 44-9-7 in relation to these statutes, we conclude that
    7
    Statutes governing tax sales are primarily found in Chapter 4 of Title 48 of the Official
    Code of Georgia Annotated, the provisions of which are divided into Articles 1 through 5. Article
    3, encompassing OCGA §§ 48-4-40 through 48-4-48, deals with the statutory right of redemption
    following a tax sale.
    8
    See OCGA § 48-4-40.
    9
    Once the statutory redemption period expires, OCGA § 48-4-45 gives the tax sale
    purchaser, or his heirs, successors, or assignees the power to “‘terminate, foreclose, divest, and
    forever bar’ all rights to redeem the property by giving notice under OCGA § 48-4-40.” National
    Tax Funding, LLC., supra at 43.
    8
    by explicitly providing that easements recorded prior to the recording of a tax
    fi. fa. are not extinguished by a tax sale of the property, OCGA § 44-9-7
    implicitly provides that any easement not so recorded is extinguished if the
    property is not redeemed.10 Once the right to redemption has been terminated,
    the tax sale purchaser obtains absolute and unconditional title to the land. See
    Forrester v. Lowe, 
    192 Ga. 469
    , 476 (15 SE2d 719) (1941). Thus, it follows
    that after a tax fi.fa. on real property has been recorded, the defendant in fi. fa.
    cannot successfully encumber the property with an express easement or right of
    way without first satisfying either the tax fi.fa. or subsequent tax deed.
    In the instant case, both the tax fi.fa. and the tax deed were recorded prior
    to Georgia Power’s recording of the express easement it obtained from Fuller.
    As a result, Georgia Power’s express easement over the Property was taken
    subject to the tax deed. Accordingly, when the right of redemption expired and
    Investga’s tax deed ripened into fee simple title, Georgia Power’s express
    easement was extinguished. See Forrester, 
    supra
     (once the owner and all other
    interested parties authorized by law to redeem the property lose their redemptive
    10
    Under the maxim “expressio unius est exlusio alterius,” the express mention of one thing,
    implies the exclusion of another. See O’Donnell v. Durham, 
    275 Ga. 860
    , 861 (573 SE2d 23) (2002);
    City of Macon v. Walker, 
    204 Ga. 810
    , 814 (51 SE2d 633) (1949).
    9
    rights, they cease to have any interest in the land).
    Nor do we agree with Georgia Power’s claim that it obtained a
    prescriptive easement over the Property which not only entitles it to operate and
    maintain the electric line, but allows it to enforce the required 25 foot building
    prohibition.11 “Prescriptive rights are to be strictly construed.” MEA Family
    Investments, LP v. Adams, 
    284 Ga. 407
    , 408 (667 SE2d 609) (2008). Having
    sought permission from and paid consideration to Fuller for an express easement
    relating to the building restriction, Georgia Power abandoned any adverse claim
    it might have had to a prescriptive easement with respect to this prohibition. See
    Keng v. Franklin, 
    267 Ga. 472
     (480 SE2d 25) (1997). Moreover, inclusion of
    a 25 foot building restriction incorporates and traverses more territory over the
    Property than any prior prescriptive easement claimed by Georgia Power and
    clearly exceeds the statutorily limited width of 20 feet allowed for such
    easements.12 See id.; Jackson v. Norfolk Southern R., 
    255 Ga. App. 695
    , 696-97
    (566 SE2d 415) (2002); Lopez v. Walker, 
    250 Ga. App. 706
    , 707 (551 SE2d
    11
    Having found Georgia Power had a valid express easement, the trial court made no
    findings as to whether Georgia Power had obtained a prescriptive easement over the Property.
    12
    Georgia Power admits that the $24,000.00 it paid Fuller for the easement was primarily
    to obtain the 25 foot building restriction.
    10
    745) (2001).
    For the foregoing reasons, we find the trial court erred when it determined
    Georgia Power had a valid and enforceable easement over the Property and
    erred in granting summary judgment to Georgia Power on Land USA’s claims
    based on this determination.
    2. Our inquiry does not end here, however, as we must additionally
    consider whether the trial court erred in determining Land USA’s claims for
    trespass and ejectment also failed as a matter of law.
    (a) Relying on a survey conducted by Georgia Power and submitted into
    evidence, the trial court found that the power line at issue was primarily located
    within the public GDOT right-of-way along Donald Lee Hollowell Parkway and
    that any presence of the line over the Property thus did not materially encumber
    or impose a servitude on the Property sufficient to provide Land USA with a
    cause of action. See Faulkner v. Georgia Power Co., supra, 
    243 Ga. 649
    .
    Irrespective of the extent to which the electric line traverses the Property,
    however, the existence of the line over the property coupled with any attempt
    by Georgia Power following foreclosure of the right to redemption to restrict or
    otherwise interfere with Land USA’s use and enjoyment of the Property due to
    11
    the proximity of the electric line would provide Land USA with a cause of
    action for trespass. See OCGA § 51-9-1 (“The 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.”). In determining that Georgia Power’s newly energized electric line’s
    presence was de minimis and insufficient to support a claim for trespass over the
    Property, the trial court erred in looking only to the actual presence of the line
    itself and in failing to consider any additional impact the line’s presence over
    and alongside the Property might have to Land USA’s use and enjoyment
    thereof.
    (b) Similarly, the trial court erred in deciding Land USA lacked standing
    to bring a trespass action against Georgia Power.13 Land USA contends that
    any building restrictions on the Property caused by the presence thereon of
    Georgia Power’s electric line constitutes a continuing trespass for which Land
    USA would be entitled to seek damages. Georgia Power conceded at oral
    13
    Unlike in Brown Inv. Group, supra, where a tax sale purchaser brought a trespass claim
    against the City of Savannah for the one-time demolition of a building on the subject property that
    occurred during the redemption period following a tax sale, Land USA’s trespass claim arises in part
    from Georgia Power’s attempts to perpetually restrict Land USA’s right to build on the Property.
    12
    argument that the $24,000 it paid Fuller for the easement was primarily to obtain
    a building prohibition which had not been part of any previous prescriptive
    easement. To the extent such a building prohibition is now required on portions
    of the Property due to the presence of the line, the line arguably impinges on
    Land USA’ use and enjoyment of the property and creates an additional
    servitude over the Property for which Land USA has standing to seek damages.
    See Faulkner, 
    supra,
     
    243 Ga. at 650
    .
    (c) Finally, we agree with the trial court’s conclusion that Land USA’s
    ejectment claim against Georgia Power fails as a matter of law. See Waldrop v.
    Georgia Power Co., 
    233 Ga. 851
     (213 SE2d 847) (1975); Adams v. Georgia
    Power Co., 
    299 Ga. App. 399
     (682 SE2d 650) (2009). A public utility company
    has the right to acquire land necessary for its corporate purpose by purchase, by
    consent of the landowner, or by condemnation. See Waldrop, 
    supra at 853
    . “If
    the land be taken without [the landowner’s] consent and without condemnation,
    a right of action accrues to [the landowner] against the company.” 
    Id.
     However,
    where, as here, an existing power line has become “a necessary and constituent
    part of [the utility’s] service to the public,” the landowner is “estopped from
    recovering the land in ejectment or from enjoining its use for the service” and
    13
    is limited to pursuing “an appropriate action in damages.” 
    Id.,
     see Adams,
    supra. at 401 (2). Accordingly, we affirm the trial court’s grant of summary
    judgment to Georgia Power on the ejectment claim.
    For the foregoing reasons, the trial court’s order granting summary
    judgment to Georgia Power on Land USA’s claim for ejectment is affirmed,
    while the trial court’s grant of summary judgment to Georgia Power on Land
    USA’s other claims is reversed and the case is remanded to the trial court for
    further action consistent with this opinion.
    Judgment affirmed in part, reversed in part, and remanded. All the
    Justices concur.
    14