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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

Alexander L. Marks v. Sherry M. Cates, as of the Estate of G.E. Monk

Court of Appeals of Georgia

• Citations: None known
• Docket Number: A26A0141

• Disposition: Reversed

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (21K)

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Disposition

Reversed

Combined Opinion

FIRST DIVISION
BARNES, P. J.,
MARKLE 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.
https://www.gaappeals.us/rules

February 27, 2026

In the Court of Appeals of Georgia
A26A0141. MARKS v. CATES.

BARNES, Presiding Judge.

We granted the application of defendant Alexander Marks for interlocutory

review of the trial court’s denial of summary judgment concerning his claimed

easement as to a driveway built by his predecessors in 1987. The estate of the abutting

landowner, now the Cates family, brought this action for trespass in 2023. On appeal,

Marks argues that the trial court erred in denying him summary judgment because

undisputed evidence established his right to the driveway as a private way by

prescriptive easement. We agree and reverse.

[A] defendant who will not bear the burden of proof at trial need not
affirmatively disprove the nonmoving party’s case, but may point out by
reference to the evidence in the record that there is an absence of
evidence to support any essential element of the nonmoving party’s case.
Where a defendant moving for summary judgment discharges this
burden, the nonmoving party cannot rest on its pleadings, but rather
must point to specific evidence giving rise to a triable issue.

Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and

punctuation omitted). “In our de novo review of the grant of a motion for summary

judgment, we must view the evidence, and all reasonable inferences drawn therefrom,

in the light most favorable to the nonmovant.” Id. at 624 (1) (a) (citation and

punctuation omitted).

Thus viewed in Cates’s favor, the record shows that in in 1979, Marks’s

predecessor, the Beatty family, bought a 5-acre tract of land abutting the 35-foot strip

of land at issue, which was the property of G. E. “Buddy” Monk. The Beattys built

an east-west driveway on the strip in approximately 1987, and completed a house on

their property in 1990. From 1979 to 1992, the large tract to the east of the Beattys’

property was also owned by Monk. During this period, Monk often visited the Beattys

and never objected to the driveway or the Beattys’ use of it. Monks died in 1992, and

his daughter Sherry Cates became the executor of his estate. In 1997 or 1998, the

Beattys built a carport near the eastern end of the driveway.

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Jerry Beatty died in 2008. Shortly after her husband’s death, Betty Jean Beatty

found Sherry’s husband Steve Cates on the driveway inspecting the carport. When

Betty Jean asked what he was doing, Steve said that he planned to move the carport

so that he could log the Monk property. Betty Jean told him that he could not move

the carport and that he should leave her alone.

Nothing further was heard from the Cateses until September 2023, more than

four years after Alexander Marks bought the property from Betty Jean Beatty, when

Sherry Cates filed this trespass action. Marks counterclaimed for a declaration of his

right to the driveway by adverse possession and prescriptive easement. In February

2024, Marks moved for partial summary judgment on his adverse possession

counterclaim. In March 2024, Marks filed a second motion for partial summary

judgment as to prescriptive easement of a private way and as to his defense of laches.

The Cateses responded to Marks’s first motion with evidence including five

affidavits purporting to show that the Beattys’ use of the driveway had been merely

permissive. Two of the affidavits were by Sherry and Steve Cates; the remaining three

are identical except for the names of the signatories. Steve Cates testified that he had

used the driveway “to prevent trespassers and vandalism and [for] hunting

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purposes,” that he had never been informed that the Beattys claimed ownership of it,

and that Betty Jean “did not object” to his assertion of right over the property. Steve

admitted, however, that Monks had “allow[ed] the Baty’s [sic] to temporarily use [the

driveway strip] for a carport.” The remaining three affidavits averred that each

witness had seen “Jerry [Beatty] coming to the office of PKW Building Suppply [sic]”

to deliver office supplies, “at which time [Beatty] freely and voluntarily admitted that

he was using the [driveway] with the consent of . . . Monk and [that] he would be

required to return the use of this property when [Monk] requested him to do so.”

None of the three affidavits state where PKW Building Supply is, whether each

witness was a worker or a customer there, or why Beatty would have been talking

about his driveway with them. Marks moved to strike the affidavits as impermissible

hearsay, notwithstanding Monks’s death.

After a hearing, the trial court filed two orders. The first denied Marks’s first

motion for summary judgment on the ground that questions of fact remained as to his

adverse possession claim. The second denied Marks’s second motion for summary

judgment, finding that questions of fact remained as to whether the Beattys’ use of the

property was permissive and thus whether laches barred Cates’s claim. The trial court

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did not specifically rule, however, on Marks’s claim for a prescriptive easement,

finding only that “multiple issues of material fact” remained. The trial court granted

a certificate of immediate review, and we granted Marks’s application for

interlocutory review.

Marks’s application raised a question only as to the trial court’s holding as to

a prescriptive easement. Likewise, his brief on appeal asserts error only as to this issue,

arguing that undisputed evidence shows that he obtained a prescriptive easement as

to the driveway.

Under Georgia statutory law, “[w]henever a private way has been in constant

and uninterrupted use for seven or more years and no legal steps have been taken to

abolish it, it shall not be lawful for anyone to interfere with that private way.” OCGA

§ 44-9-54. See also OCGA § 44-9-1. To obtain a prescriptive easement providing

ingress and egress to his or her property over the land of another, a property owner

must show that: (1) he or she used the easement without interruption for at least seven

years; (2) the width of the easement does not exceed 20 feet; (3) the width and path

of the easement never varied over the prescription period; and (4) the landowner kept

the easement open and in good repair during the prescription period. See McGregor

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v. River Pond Farm, LLC, 312 Ga. App. 652, 654 (2) (719 SE2d 546) (2011); Revocable

Trust of Timothy W. Griffin v. Timberlands Holding Co. Atlantic, 328 Ga. App. 33, 37

(2) (761 SE2d 458) (2014). Moreover, the use of the easement must be of such a

nature that the property owner is put on notice that the user intends to appropriate the

land on which the easement sits as his own. See Douglas v. Knox, 232 Ga. App. 551,

552-553 (2) (502 SE2d 490) (1998). Generally, this notice requirement is satisfied

where the user maintains and makes any repairs necessary to facilitate the easement’s

use. See Griffin, 328 Ga. App. at 38 (3) (“the gist of the requirement as to repairs [and

maintenance] is not so much the repairs [and maintenance] as the notice which is

given by the [same]”) (citation, punctuation and emphasis omitted). Finally,

successive possessions may be tacked together to meet the required prescriptive

period. OCGA § 44-5-172; see Pineda v. Lewis, 369 Ga. App. 346, 348 (1) (893 SE2d

512) (2023).

Here, the uncontroverted evidence showed that Marks acquired a prescriptive

easement by private way over the driveway. The driveway is used to access the

Beatty/Marks property from a public roadway; it was used exclusively and

continuously by the owners of that property for 36 years without objection from Monk

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or his heirs; the driveway’s path and width has remained unaltered since it was first

established in 1987; the width of the driveway has never exceeded 20 feet; the Beattys

improved the driveway by clearing, grading, and paving it; and since 1987, the

driveway has been improved, repaired and/or maintained continuously by the owners

of the Beatty/Marks property. Moreover, although Cates presented some evidence

that the Beattys’ use of the driveway was permissive, that evidence showed only that

permission was given, if at all, by Buddy Monk. Any permissive use would have ended

at the time of Monk’s death in April 1992, at which point prescriptive use would have

begun.

In addition, undisputed evidence showed that in the five to six years following

Monk’s death, the Beattys erected a carport on the eastern end of the driveway, and

they also maintained part of their garden on the unpaved portion of the eastern end.

Both the carport and the garden were in a location that arguably interfered with access

between Monk’s property and the driveway. Despite the erection of the carport,

however, and though its presence arguably exceeded the alleged permissive use of the

property, no representative of Monk’s estate objected to this use until 2008 — more

than a decade after the carport was erected. At that time, Steve Cates told Betty Jean

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Beatty that the carport would need to be moved to allow access for logging trucks

coming from the Monk property. Betty Jean, however, refused to allow the carport to

be moved and she told Steve “to leave her alone.” For the next 15 years, moreover,

no one from the Monk estate attempted to interfere with Beatty’s or Marks’s

possession and use of the driveway.

While some cases hold that permissive use is insufficient to establish a

prescriptive easement, those cases involve the permissive use of or repairs to an

existing roadway. See Pineda, 369 Ga. App. at 349-350 (1) (no prescriptive easement

established where evidence showed that use of an existing driveway was done with the

express permission of the property owner); McGregor, 312 Ga. App. at 655 (“when

performed with permission of the landowner, . . . repairs to [an existing] road are

insufficient, standing alone, to provide notice of adverse use”). See also Keng, 267 Ga.

at 472 (prescriptive easement established where evidence showed that property owner

claiming the easement used the driveway in question continuously, refused to allow

its removal, and repaired a considerable portion thereof; these “actions were sufficient

to place [the owners of the property on which the easement was situated] and their

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predecessor in title on notice of [the claimant’s] adverse claim to the driveway and

initiate the running of the prescriptive period”).

Here, by contrast, the Beattys did not avail themselves of an existing roadway

on the Monk property. Instead, they were granted use of the property by Monks, built

the driveway, and maintained it in good repair. Further, and more than 20 years after

building the driveway, the Beattys established a portion of their garden and a carport

structure on the end of the driveway closest to the Monk property, thereby hindering

access to their driveway from that property. Given these undisputed facts, the Monk

heirs had more than seven years’ notice that the Beattys were claiming use of the

property on which the driveway was situated.

Because undisputed evidence shows that Beatty and Marks gained a private

right of way over the driveway by prescriptive easement, the trial court erred when it

denied Marks summary judgment on this question.

Judgment reversed. Markle and Hodges, JJ., concur.

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