SECOND DIVISION

MILLER, P. J.,

RICKMAN and REESE, 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.

http://www.gaappeals.us/rules

June 19, 2019

In the Court of Appeals of Georgia

A19A0231.THEATLANTADEVELOPMENT AUTHORITYet al.

v.ANSLEYWALKCONDOMINIUMASSOCIATION,INC.

et al.

REESE, Judge.

The Atlanta Development Authority d/b/a Invest Atlanta, Atlanta BeltLine,

Inc., and the City of Atlanta (collectively “the Appellants”) appeal the trial court’s

order denying their motion to dismiss an inverse condemnation and trespass action

filed by Ansley Walk Condominium Association, Inc., individually and on behalf of

a class of similarly situated persons (collectively “the Appellees”).1 The Appellants

claim that the trial court misinterpreted the contract language found in an agreement

1 The trial court granted the Appellees’ motion for leave to add additional parties,

Jodaco, Inc., Wayne A. Christian, and Robert. R. Smith as plaintiffs. For the purposes of

this appeal, we will refer to all the plaintiffs collectively as “the Appellees.” 
titled “Termination of Railroad Easement” (henceforth “the Agreement”). For the

reasons set forth infra, we disagree and affirm the ruling of the trial court.

Viewed in the light mostfavorable to the non-movant,

2

the amended complaint

allegesthe following facts.

3 The property at issue involves a 3.46-mile portion of the

Atlanta BeltLine, formerly operated as a railroad by Norfolk Southern Railroad

(“NSR”). On March 7, 2017, NSR entered into the Agreement with the Atlanta

Development Authority (“ADA”). The Agreement included the following language:

WHEREAS, NSR has obtained from the Surface Transportation Board

authority to abandon any and all right and obligation pursuant to federal

law to provide common carrier rail transportation in the Corridor[4] as

set forth in the Decision of the Surface Transportation Board in STB

Docket No. 290 (Sub-No. 210X), Norfolk Southern Railway Company

-Abandonment Exemption -in Fulton County, GA (Service Date June 9,

2009); and

WHEREAS NSR has exercised its authority to abandon itsrail common

carrier rights in the Corridor and has consummated the abandonment

effective as of October 22, 2010, pursuant to the Notice of

2

 See Kelly v. Lewis, 221 Ga. App. 506, 507 (471 SE2d 583) (1996).

3

 The Appellants attached the Agreement as Exhibit A to the amended complaint.

4

“Corridor” refersto several parcels of land attached as Exhibit A to the Agreement,

including the property at issue. 

2
Consummation of Abandonment NSR filed on that date in STB Docket

No. 290 (Sub-No. 210X); and

WHEREAS, NSR has fully divested itself of all of its right, title and

interest in the Corridor and any obligation pursuant to 49 USC § 10901

to provide common carrier freight transportation in the Corridor; and .

. . 

WHEREAS, NSR now desires to terminate its easement of right of way

for all passenger and freight railroad purposes over, upon and acrossthe

Corridor [.]

The Agreement then states:

1. [Termination of Railroad Easement]. Effective as of the date hereof,

the NSR Railroad Easement is hereby terminated in its entirety and shall

have no further force and effect. Without limiting the foregoing, NSR

by execution hereof quitclaims, remises and releases unto ADA any

right, title or interest(including, without limitation, any easementrights)

in, to, over, across, under, through, and upon any portion of the Corridor

arising out of the NSR Railroad Easement.

2. [Miscellaneous]. This Termination shall be construed and enforced in

accordance with the laws of the State of Georgia and shall be binding

upon and inure to the benefit of ADA, its successors and assigns and all

subsequent owners of all or any part of the Corridor formerly benefitted

or encumbered by the NSR Railroad Easement.

3
The Appellees filed the amended complaint requesting class certification and

claiming the condominium owners were adjacent landowners who owned fee title in

land adjoining and within the disputed property on the date NSR abandoned its

railroad-purpose easement. According to the amended complaint, the originalrailroad

instruments granted only railroad-purpose easements; deeds and agreements show

that NSR’s predecessors in interest received railroad-purpose easements over the

land, but the original owners of the land retained a fee simple interest in the subject

property, burdened by the railroad-purpose easements. The amended complaint

contends that NSR abandoned its railroad-purpose easement when it executed the

Agreement on March 7, 2017, resulting in the Appellees holding fee simple title to

the land, unencumbered by any railroad easement. The Appellees sought damages

from the Appellants’ alleged inverse condemnation and trespass, in addition to

attorney fees, costs, and expenses.

4
The Appellants moved to dismissthe amended complaint,

5

arguing that NSR’s

easement transferred to them and the Appellees failed to set forth a claim for inverse

condemnation or trespass. The trial court denied the Appellants’ motions, but granted

a certificate of immediate review. This appeal followed.

“We review the grant or denial of a motion to dismiss de novo, construing the

pleadings in the light most favorable to the plaintiff[s] with any doubts resolved in

the plaintiff[s’] favor.”6

With this guiding principle in mind, we turn now to the Appellants’ specific

claim of error.

The Appellants argue that the trial court erred in denying their motions to

dismiss because, under Georgia law, a contract that recognizes the continuing use of

the easement to others for other purposes does not constitute an abandonment of that

easement. We disagree.

5 Because the Agreement was attached as an exhibit to the amended complaint, the

trial court could consider it when ruling on a motion to dismiss. See Gold Creek SL, LLC

v. City of Dawsonville, 290 Ga. App. 807, 809 (1) (660 SE2d 858) (2008) (“A copy of any

written instrument which is an exhibit to a pleading is a part thereof for all purposes and

thus, a trial court is authorized to consider exhibits attached to and incorporated into the

pleadings in its consideration of a motion to dismiss.”).

6 Rogers v. Dupree, __ Ga. App. __ (824 SE2d 823) (2019) (punctuation and

citations omitted).

5
Generally, when “interpreting an express easement, the rules of contract

construction apply.”7 Further, “[t]he cardinal rule of contract construction is to

ascertain the intention of the parties. To this end[,] the whole instrument, together

with its circumstances, must be considered. Absent ambiguity that cannot be resolved

by applying the rules of contract construction, the [construction of a] contractremains

a question of law.”8

The question of whether the Agreement terminated the railroad-purpose

easement or, as the Appellants argue, the Agreement “terminat[ed NSR’s] rights to

the easement [and] confirm[ed] that the rights formerly held by [NSR] would be

preserved and transferred to the [ADA,]” is a question of contract construction, which

requires a three-step process.

9

 The three-step process is as follows:

First, the trial court must decide whether the contract language is clear

and unambiguous. If it is, the trial court simply enforces the contract

according to its clear terms; the contract alone is looked to for its

meaning. Next, if the contract is ambiguous in some respect, the court

7 Pichulik v. Ball, 270 Ga. App. 656, 660 (1) (607 SE2d 247) (2004) (punctuation

and footnote omitted).

8

 Id. (punctuation and footnotes omitted).

9 See McKinley v. Coliseum Health Group, 308 Ga. App. 768, 770 (1) (708 SE2d

682) (2011). 

6
must apply the rules of contract construction to resolve the ambiguity.

Finally, if the ambiguity remains after applying the rules of construction,

the issue of what the ambiguous language means and what the parties

intended must be resolved by a jury.

10

Here, the trial court summarily denied the Appellants’ motions to dismiss. Thus, we

cannot determine from the order whether the trial court did so because it found that

the Agreement unambiguously stated that NSR abandoned its railroad-purpose

easement or because it found the Agreement was ambiguous and created questions

of material fact to be decided by a jury.

11

With regard to the first step of the construction of a contract, the Appellants

assert in their brief that the abandonment language in the Agreement merely refers to

NSR’s abandonment of itsrights and obligationsto provide railservice under federal

regulatory laws, and not its abandonment of the actual easement. In support of this

argument, the Appellants point to language in the Agreement stating that NSR “by

execution hereof quitclaims,remises and releases unto ADA any right, title or interest

(including, without limitation, any easement rights)” in the property.

10

 Id. (citation and punctuation omitted).

11

 Id.

7
This Court has held that “[a]n ambiguity is defined as duplicity, indistinctness,

an uncertainty of meaning or expression used in a written instrument, and also

signifies of doubtful or uncertain nature; wanting clearness or definiteness; difficult

to comprehend or distinguish; of doubtful purport; open to various interpretations.”12

Construing the pleadings in the light most favorable to the Appellees, as the

non-movant, the Agreement is ambiguous because the parties’ intention cannot be

definitively ascertained from the four corners of the document.

13 At present, it is

uncertain what property rights were conveyed by the Agreement to ADA from NSR.

Thus, the trial court must proceed to step two and apply the rules of contract

construction to resolve the ambiguity.

14

“Under the rules of contract construction,

parol evidence is admissible to explain an ambiguity in a written contract, although

such evidence is inadmissible to add to, take from, or vary the writing itself.”15

12 Cruz v. Paredes, 333 Ga. App. 857, 859 (2) (777 SE2d 702) (2015) (punctuation

and footnote omitted).

13

 See McKinley, 308 Ga. App. at 770 (1). 

14

 Id.

15

 Id. at 770-771 (1) (citation and punctuation omitted).

8
To resolve this issue, the trial court would be required to determine who owns

fee-simple title to the property by examining all conveyance instruments and

ascertaining whether the instruments conveyed fee-simple title or merely railroadpurpose easements.

16

In light of this uncertainty, the trial court did not err in denying

the Appellants’ motions to dismiss.

Judgment affirmed. Miller, P. J., and Rickman, J., concur.

16 See Jackson v. Rogers, 205 Ga. 581, 586-587 (54 SE2d 132) (1949) (“[T]he

crucial test in determining whether a conveyance grants an easement in, or conveys title

to, land, is the intention of the parties, but in arriving at the intention[,] many elements

enter into the question. The whole deed or instrument must be looked to, and not merely

disjointed parts of it. The recitals in the deed, the contract, the subject-matter, the object,

purposes, and nature of the restrictions or limitations, if any, or the absence of such, and

the attendant facts and circumstances of the parties at the time of the making of the

conveyance are all to be considered.”) (citations and punctuation omitted).

9