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TRATON COURT NEWS: Moses v. Traton Corp.

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Third Division (July 10, 2007, Decided)

The Court of Appeals for the State of Georgia has seemingly changed
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prevent damage to the right-of-way that adjoins their homes.

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The damaged property that was the subject-matter of this dispute is
shown in this picture (see red box). The Plaintiff's home and the
remainder of the yard are shown to be contiguous with the damaged
land.

The Opinion by
1 the Georgia
Court of
Appeals
HEADLINES
addresses the
TRATON HEADLINE: JL Plaintiff's rights
Kirk Associates Loses in that
Battle with Blogger damaged land.
TRATON REPRINT: Traton The Opinion is
Sucks and Taubman recited below.
Sucks
TRATON REPRINT: Kudos
Moses v.
to Mr. Mishkoff on
Traton Corp.
Taubman Sucks Sites
et al.,
TRATON UPDATE: Another
A07A1474,
Website Providing Online
Court of
Information on Builders
Appeals of
TRATON REPRINT:
Georgia,
Potentially Catastrophic
Third
Consequences for New
Housing Developments
Division
(July 10,
2007, Decided).
CATEGORIES DISPOSITION: Judgment affirmed.
TERMS_AND_CONDITION JUDGES: BLACKBURN, Presiding Judge. Ruffin and
S (1)
 S (1) Bernes, JJ., concur.
TRATON COURT NEWS (1)
OPINION BY: BLACKBURN
TRATON
ENTERTAINMENT (1) OPINION
TRATON EXCLUSIVE (3)
Blackburn, Presiding Judge.
TRATON HEADLINE (26)
TRATON NEWS (2) In a trespass action brought by Christopher Moses
TRATON PREVIEW (1) against builder Traton Corporation and an employee,
TRATON REPRINT (4)
Moses appeals the denial of his motion for summary
TRATON SPORTS (1)
judgment and the grant of defendants' cross motion for
summary judgment, contending that the trial court erred in
TRATON STATISTICS (8)
ruling that Moses lacked standing. We disagree and affirm.
TRATON UPDATE (5)
Summary judgment is proper when there is no
genuine issue of material fact and the movant is
NEWS SITES entitled to judgment as a matter of law. OCGA
Traton News § 9-11-56 (c). A de novo standard of review
Atlanta Homes
applies to an appeal from a grant of summary
Real Estate News
judgment, and we view the evidence, and all
reasonable conclusions and inferences drawn
Attorney News
from it, in the light most favorable to the
nonmovant.
WILL YOU BUY A HOME FROM
TRATON CORP.? Matjoulis v. Integon Gen. Ins. Corp. 1
Never So viewed, the record shows that in May 2004, Moses
Likely Not bought a house from Traton, which developed Moses's
Maybe subdivision according to a recorded plat establishing
Moses's (and other owners') property boundaries and public
Vote Show results
rights of way. After Moses's house was built, but before
Votes so far: 37 final subdivision construction was completed, Traton's (or
Days left to vote: 2917887 its agents') construction vehicles drove over a portion of the
grass near the curb in front of Moses's house, creating ruts
and other damage to the turf and soil. It is undisputed that
ARCHIVES
the portion of grass over which the trucks drove is located
▼ 9999 (1) outside of Moses's lot and entirely within a public right of
▼ December (1) way owned by Cobb County, as shown by the controlling
TRATON plat attached to Moses's deed.
NEWS
:
Moses brought the damage to Traton's attention, and
TERM although Traton initially repaired some damage, Moses was
S AND unable to persuade Traton to fix subsequent damage done
COND to the grass. Moses then filed a trespass action against
ITION Traton and a Traton employee and moved for summary
S judgment; defendants filed a cross-motion for summary
judgment. Ruling that Moses had no standing, the trial court
▶ 2008 (24) denied Moses's motion for summary judgment and granted
▶ February (8) summary judgment to defendants. Moses now appeals.
TRATON
HEAD 1. Sufficiency of possessory interest for standing to sue
LINE: for trespass. Moses contends that the trial court erred in
JL failing to recognize his standing to sue based on his alleged
Kirk possessory interest in the damaged property. Moses
Associ concedes that he does not own the damaged land and that
ates
 ates
none of the land he owns was damaged. Instead he relies on
Loses
OCGA § 51-9-2, which states that "[t]he bare right to
Battle
w...
possession of lands shall authorize their recovery by the
TRATON
owner of such right, as well as damages for the withholding
REPRI of such right." Therefore, if a plaintiff is not the owner of
NT: the land in question, "[t]o maintain an action for trespass or
Traton injury to realty, it is essential that the plaintiff show . . . that
Sucks he was . . . in possession at the time of the trespass." Smith
and
v. Fischer. 2
Taubm
an Here, Moses contends that because he attended to the
Sucks landscaping on the property between his lot and the street,
TRATON and because he requested that others not invade that
REPRI property, he showed a sufficient level of possession to
NT: demonstrate standing. However, in this context,
Kudos "possession" is considered to be "one degree of title. . . .
to Mr. Possession implies a present right to deal with property at
Mishk pleasure, and to exclude other persons from meddling with
off on
it." Justice v. Aikin. 3 See Bethel Farm Bureau v. Anderson.
Taubm 4 Moses has not demonstrated legal possession because the
an S...
subject property is, as he concedes, a public right of way
TRATON
owned by Cobb County. While Moses may use the right of
UPDA
TE:
way in the same manner as other members of the public, his
Anoth
interest in such property is not one whereby he may assert
er that he possesses the land to the exclusion of others.
Websit Therefore, the trial court correctly ruled that Moses's
e asserted possessory interest did not provide a basis to
Provid demonstrate standing to sue for trespass.
ing
2. Scope of Moses's possession under his deed. Moses
Online
also relies on OCGA § 44-5-167, which states that
In...
"[p]ossession under a duly recorded deed will be construed
TRATON
to extend to all the contiguous property embraced in the
REPRI
NT:
deed." Based on this, Moses argues that he is deemed to be
Potent in possession of the public right of way because it is
ially contiguous to his property, which is delineated in a duly
Catast recorded deed. However, this ignores the Code's plain
rophic wording, i.e. that possession extends to "the contiguous
Conse
property embraced in the deed." See Martin v. Clark 5 ("a
quen...
claimant in actual possession of a part of a tract may rely
TRATON
upon the presumption that his possession extends to the
HEAD
LINE:
boundaries of the tract described in his paper title")
webgri (emphasis supplied). As Moses's deed did not embrace the
pesites property outside of his lot, and the subject property is not
.com within the lot described in Moses's deed, OCGA § 44-5-167
Featur is not a basis for Moses to show standing here.
es
Affili...
3. Unlawful interference with right of way. Moses next
relies on OCGA § 51-9-10, which states that "[t]he
TRATON
HEAD
unlawful interference with a right of way or a right of
LINE: common constitutes a trespass to the party entitled thereto."
Contin Moses argues that the trial court erred in failing to
ued recognize his standing to prevent an unlawful interference
 Increa with a right of way. We disagree.
se in
Reade
As a general matter, OCGA § 51-9-10 protects the rights
rship of users of rights of way from interference with their use.
... Moreover, "[o]wners of property which abuts a public road
Traton have the right to the use and enjoyment of such road in
News - common with all other members of the public, as well as
Month other rights such as ingress and egress which do not belong
ly to the public generally." (Punctuation omitted.) Holland v.
Stats
Shackelford. 6 However, the right to ingress and egress
Report
1 Jan -
enjoyed by a contiguous property owner (and not the
31 Jan public) does not encompass such a possessory right as to
... authorize the contiguous property owner to exclude the
▶ January (16)
public from the right of way.
TRATON Here, Moses has provided no evidence of interference
HEAD with his right to ingress and egress over the public right of
LINE:
way. Therefore, contrary to Moses's argument, Moses
Traton
retains full enjoyment of his right to come and go over the
Homes
Coven
right of way as he pleases. Accordingly, nothing in OCGA
ants § 51-9-10 is implicated by his claim here, and the trial court
Worthl did not err in so ruling.
ess ...
Moses also relies on Clayton County v. Billups Eastern
TRATON
COUR
Petroleum Co., 7 which addressed the following question:
T whether a cause of action is stated for damage
NEWS to property by a petition alleging facts sufficient
:
to authorize a jury to find substantial
Moses
impairment of an owner's right of ingress and
v.
Traton
egress directly to and from the highway where .
Corp. . . the highway is converted from an unlimited
et al., to a limited access road and there is provided at
A... the time of the change a service road by which
TRATON the plaintiff's property can be reached.
HEAD
Finding that the conversion of the highway was an
LINE:
impairment of the plaintiff's prior "practically unlimited
Atlant
a
ingress and egress," this Court ruled that the plaintiff had
Homes stated a claim against the State for making the conversion
- New without compensating the plaintiff for this impairment. Id.
Inform at 782.
ation
Based on this reasoning, Moses argues that he has
S...
standing here to pursue a trespass action against Traton's
TRATON
HEAD
construction vehicles. However, Billups Eastern is an
LINE: eminent domain case in which the plaintiff sued the State,
Online not a trespass action against a private party. Moreover, even
Inform if we apply the analogy here, Moses's right to ingress and
ation egress (which was the right at issue in Billups) has not been
on impaired in any way by the damage done in the right of
Home way. Thus, if Traton had installed a curb or some other
Builde. impairment to Moses's right of ingress and egress, see, e.g.,
..
Dougherty County v. Hornsby, 8 Billups Eastern might
TRATON
TRATON
REPRI
support such an argument here. But as Moses has identified
NT: no diminishment in his right of user or enjoyment with
Traton respect to his own property, nor any impairment to his
Homes ability to use the right of way or access his property, his
Exhibi reliance on Billups Eastern here is misplaced.
ts
Greate
4. Effect of the covenants associated with Moses's
st estate. Moses also contends that the covenants recorded
Dec... with his deed create a sufficient property interest in the
TRATON right of way for him to pursue a trespass action. We
SPOR disagree.
TS:
Moses's deed is subject to covenants which by their
The
Passin
terms, "are for the purpose of protecting the value and
g of desirability of, and which shall run with, the real property
Bobby and be binding on all parties having any right, title or
Fische interest in the described properties [including Moses's Lot] .
r, . . and shall inure to the benefit of each owner thereof." The
Ameri. covenants require owners to maintain their "Lots," which
.. are defined, in relevant part, as the owner's "plot of land."
TRATON
EXCL
Moses argues that the obligation to maintain his Lot,
USIVE and his right to enforce the covenants against other Lot
: Part owners, gives him legal standing to maintain a trespass
III - action with respect to land in the right of way. This
Lochs argument ignores the distinction between the public right of
hire by way and Moses's private Lot, which are both delineated in
Traton the recorded plat. The covenants merely require Moses and
H...
other Lot owners to maintain their Lots, and neither
TRATON Moses's Lot nor any other owner's Lot includes the right of
HEAD
way. Moreover, in obligating Moses to maintain his Lot, the
LINE:
covenants do not purport to create either an ownership or a
Traton
Homes
possessory interest with regard to the subject property.
Ranks Therefore, Moses cannot now rely on the covenants to show
Below standing to maintain this trespass action.
Averag
5. Factual indicia of possession. Finally, Moses argues
e ...
that the trial court misconstrued or ignored facts that tend to
TRATON
support his claim of possession. However, in light of our
HEAD
LINE:
rulings herein with respect to Moses's lack of legal interest
Resear in the right of way, the facts Moses points to, such as his
chers mowing of the area, or another property owners' opinions
at with respect to Moses's legal interest in the land, are not
Korea' sufficient to create in Moses a legally cognizable
s possessory interest in the public right of way. Accordingly,
POST this argument is without merit.
ECH
De... Judgment affirmed. Ruffin and Bernes, JJ., concur.
TRATON 1 Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).
EXCL
2 Smith v. Fischer, 52 Ga. App. 598, 599 (184 SE 406) (1936).
USIVE
: Part
3 Justice v. Aikin, 104 Ga. 714, 716 (30 SE 941) (1898).
II -
High 4 Bethel Farm Bureau v. Anderson, 217 Ga. 529, 532 (3) (123 SE2d 754) (1962).
Correl
 ation 5 Martin v. Clark, 190 Ga. 270, 274 (4) (9 SE2d 54) (1940).

betwe..
6 Holland v. Shackelford, 220 Ga. 104, 111 (2) (137 SE2d 298) (1964).
.
TRATON 7 Clayton County v. Billups Eastern Petroleum Co., 104 Ga. App. 778, 780 (123 SE2d 187)
EXCL (1961).

USIVE
8 Dougherty County v. Hornsby, 213 Ga. 114, 117-118 (1) (97 SE2d 300)
: Part
I- (1957).
New
Study
on the
Correl.
..
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