City of Atlanta v. Kleber
City of Atlanta v. Kleber
Opinion of the Court
These consolidated cases concern a nuisance
The record shows that, in the late 1800s, Norfolk installed railroad tracks abutting property that would eventually be owned by the homeowners almost two centuries later. At some point, at least four decades ago, Norfolk also installed a culvert and a 36-inch brick drainage pipe under the tracks. At that time, the drainage culvert and pipe were adequate to drain the large 37-acre basin in which the homeowners’ property sits. The pipe and culvert have been maintained properly over the years, as the evidence shows that they are currently clean of debris, intact, and in proper working order.
The homeowners purchased and moved into their home during the summer of 1997. During heavy rains, the homeowners experienced flooding on the property and, several months after moving in, they relayed their problem to both Norfolk and the City, the latter of which had placed a connecting pipe onto Norfolk’s pipe that directed runoff to a combined sewer overflow culvert.
1. As an initial matter, we cannot fully agree with the Court of Appeals’ determination that the type of nuisance in issue in this case is wholly continuing in nature. In making this determination, we must look both to our case law and the Restatement of Torts.
A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run. Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie. This action accrues at the time of such continuance, and against it the statute of limitations runs only from the time of such accrual.
(Citations omitted.) City Council of Augusta v. Lombard, 101 Ga. 724, 727 (28 SE 994) (1897).
In City Council of Augusta v. Boyd, 70 Ga. App. 686 (29 SE2d 437) (1944), the plaintiffs filed a nuisance action against the City Council for damages caused by the City of Augusta’s improper maintenance of an open sewer drainage ditch adjacent to their property. In characterizing the nuisance as a continuing one, the Court of Appeals held:
The nuisance complained of in the instant case, the improper maintenance of the ditch, is not a permanent one, but rather one which can be abated by the city at any time, and the wrong or injury is remediable. The nuisance complained of does not consist in the mere presence of the ditch, but in the manner in which it is maintained.
In this case, the homeowners appear to complain both about the mere presence of the culvert and pipe, arguing that they were improperly installed, as well as their maintenance over time. To the extent that the homeowners complain that the mere presence creates a nuisance due to improper installation, their nuisance claim is permanent in nature and is presently barred by the statute of
The Restatement of Torts (Second) § 930 supports these classifications. There, in comment c, it states:
Damage to neighboring landowners is frequently incident to the construction and operation of establishments employed in necessary public service, which nominally have the right of taking land by eminent domain. A railway embankment with an inadequate culvert diverts water upon nearby land; a municipal electric plant sends smoke and fumes into homes and factories; a city sewage disposal system pollutes a stream to.the injury of bordering landowners. If the damage results from some minor feature of construction or management, so that it could be averted at slight expense, the normal remedy of successive actions for past invasions or relief by injunction would alone be available, as is also true if the harm results from an improper and unnecessary method of operation. But if the invasions are caused by some substantial and relatively enduring feature of the plan of construction or from an essential method of operation, then it will usually not be abatable by injunction and the desirability of granting the injured person complete compensation for past and future invasions is apparent.
(Emphasis supplied.)
2. Contrary to the holding of the Court of Appeals, the homeowners failed to present triable issues with respect to their negligence and nuisance claims against Norfolk. With regard to their negligence claim, the homeowners have failed to show that Norfolk has breached any duty owed to them based on the facts of this case. To the contrary, in accordance with the special master’s report, it must be presumed that the culvert and drainage ditch installed by Norfolk decades ago properly drained water from the property at the time that they were installed, and Norfolk has properly maintained
3. The homeowners also failed to present a triable issue with respect to their nuisance claim against the City. The homeowners raise several contentions against the City. First, they contend that the City’s construction of the CC-CSO and connection to the Norfolk drainage pipe contributed to the flooding. The special master’s findings indicate, however, that the connection of the pipe has not contributed to the flooding, and that the City has properly constructed and maintained the CC-CSO.
The homeowners further contend that the City created a nuisance by approving construction permits for surrounding land and maintaining a series of underground pipes which ultimately feed into Norfolk’s culvert and pipe. As a result of this new construction, including areas impervious to water, the homeowners contend that
[T]he sole act of approving a construction project which leads to an increase in surface water runoff cannot impose liability for creating or maintaining a nuisance. However, where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable.
(Citations and emphasis omitted.) Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).
The special master found that the homeowners’ land floods because the 36-inch pipe installed by the railroad cannot handle the quantity of runoff flowing toward it during heavy storms. The facts show that the City has taken no steps to maintain the culvert, the drainage pipe, or any other pipes leading to the culvert. “[L]iability of a municipality cannot arise solely from its approval of construction projects.” (Emphasis omitted.) Fulton County v. Wheaton, 252 Ga. 49, 50 (1) (310 SE2d 910) (1984), overruled in part on other grounds, DeKalb County v. Orwig, 261 Ga. 137 (1) (402 SE2d 513) (1991). To the contrary, in order to become responsible, a municipality must actively take control over the property in question or accept a dedication of that property. See Merlino v. City of Atlanta, 283 Ga. 186 (2) (657 SE2d 859) (2008). The homeowners have failed to show that the City has done so in this case. Therefore, contrary to the homeowners’ claims, the City did not become responsible for maintaining the railroad culvert simply because it approved plans for constructing homes in the surrounding neighborhood.
Judgments reversed.
A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.
OCGA § 41-1-1.
The Norfolk pipe is connected to an additional pipe that leads to the City’s Clear Creek combined sewer overflow culvert (CC-CSO). Prior to the construction of the CC-CSO, Norfolk’s pipe emptied into Clear Creek.
Although the section of land involved in this litigation was sold to a developer in December 2004 as a part of the “Belt Line” project, Norfolk’s subsidiary retained ownership of the railroad tracks, the roadbed, and all associated railroad appurtenances.
We have previously held:
The Restatement’s approach to dealing with continuing nuisances is both comprehensive and workable, and although it appears never to have been adopted by any*416 decision in this jurisdiction, a review of our cases reveals that its application would have produced the same results. The Restatement approach appears to be the general rule and we adopt it.
(Citation omitted.) Cox v. Cambridge Square Towne Houses, 239 Ga. 127, 128-129 (236 SE2d 73) (1977).
This fact remains true even if Norfolk also created an embankment on which to construct its tracks.
In City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979), this Court established
guidelines for determining whether a municipality will be liable for creating or maintaining a nuisance: the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition.
(Footnote omitted.) Hibbs, supra, 267 Ga. at 337.
Dissenting Opinion
dissenting.
The plaintiff homeowners’ nuisance claim against Defendant Norfolk Southern Corporation is not barred by the statute of
Contrary to the majority’s contention, whether a nuisance is continuing or permanent is not dependent on whether the plaintiff complains about the “presence” of the drainage pipe or asserts that the pipe is improperly maintained. Rather, this Court has traditionally looked at whether a nuisance is transient and abatable to determine whether an alleged nuisance is continuing or permanent. This Court in Shaheen v. G & C Corporation aptly describes the difference between a permanent and a continuing nuisance:
“Where the original nuisance to land is of a permanent character, so that the damages inflicted thereby are permanent, a recovery not only may, but must, be had for the entire damages, in one action; and such damages accrue from the time the nuisance is created, and from that time the statute of limitations begins to run. In the case of*421 nuisances which are transient rather than permanent in their character, the continuance of the injurious acts is considered a new nuisance, for which a fresh action will lie; and although the original cause of action is barred, damages may be recovered for the continuance of the nuisance.”
(Citations and punctuation omitted.) 230 Ga. 646, 648 (198 SE2d 853) (1973). This Court in Shaheen held that a continuing nuisance was established by evidence that the defendant’s grading of its property caused water and dirt to be deposited on the appellant’s property every time it rained. Id. Because the nuisance was classified as continuing in nature, this Court rejected the defendant’s argument that the grading of its property occurred more than four years prior to the filing of the complaint and was thus barred by the statute of limitations. Id. at 647. Numerous other decisions by this Court and the Court of Appeals of Georgia have likewise recognized that a nuisance should be classified as continuing if it is transient and abatable.
The majority’s reliance on City Council of Augusta v. Lombard is misplaced. In Lombard, this Court stated that a permanent nuisance is one where the destruction or damage is complete upon the completion of the act by which the nuisance is created. City Council of Augusta v. Lombard, 101 Ga. 724, 727 (28 SE 994) (1897). However, “[w] here one creates a nuisance, and permits it to remain, it is treated as a continuing wrong and giving rise, over and over again, to causes of action.” Id. The defendant in Lombard committed a one-time act, the removal of a gate from a canal, more than four years prior to the filing of the suit. Id. at 729. The court held that the suit was not barred by the statute of limitations because
[t]his removal did not per se constitute a nuisance, but became such in certain times of high water by discharging large and unusual quantities of water upon the premises of the plaintiff, thereby injuring him. For injuries so received, the plaintiff may . . . maintain an action, and for each successive inundation a new cause of action may accrue.
The majority cites the Court of Appeals’ decision in City Council of Augusta v. Boyd, 70 Ga. App. 686, 688 (29 SE2d 437) (1944), for the proposition that an alleged nuisance should be considered permanent because the homeowners complain of the presence of the drainpipe. However, the Court of Appeals in Boyd never held that a complaint of the mere presence of an alleged nuisance equates to that nuisance being classified as a permanent nuisance. Rather, the court said “the improper maintenance of the ditch, is not a permanent [nuisance], but rather one which can be abated by the city at any time . . . .” Id. at 688. That the plaintiff in Boyd was complaining about the city’s maintenance of a ditch merely demonstrates that this alleged nuisance, the maintenance of the ditch, could be stopped at any time and thus constitutes a continuing nuisance. It does not necessarily follow that a complaint about the mere presence of an alleged nuisance classified that nuisance as permanent, and the court in Boyd does not hold as much.
The majority incorrectly classifies the homeowners’ nuisance claim against Defendant Norfolk as part permanent in nature and part continuing in nature. Rather, the entire claim should be classified as continuing in nature. It is clear in this case that the alleged nuisance was transient as the flooding was not constant and only occurred during heavy rain. The evidence here also demonstrates that the alleged nuisance was abatable. The Special Master testified as to proposed processes to alleviate the flooding: the construction of an additional drainpipe on Defendant Norfolk’s property or the widening of the drainpipe already there. Because the nuisance here should have been classified as a continuing nuisance, the only damages against Defendant Norfolk that are barred by the four-year statute of limitations are those that were incurred by flooding that occurred more than four years prior to the filing of the Plaintiffs’ complaint. See Cox, 239 Ga. at 128.
In addition to the homeowners’ claims against Defendant Norfolk not being barred by the statute of limitations, a genuine issue of material fact exists as to whether Defendant Norfolk’s drainage pipe caused the damage to the homeowners’ property. The trial court in
The Special Master notes that it is likely that additional development surrounding the parties would generate more impervious sources, therefore generating additional water runoff through the drainage pipe and culvert. This assertion certainly creates a question as to whether the surrounding development is a superceding cause to the flooding on the homeowners’ property that the Special Master concludes is a result of Defendant Norfolk’s drainage pipe. However, because the Special Master does not specify how much the surrounding development may have contributed to the water runoff or that it even definitely occurred, this issue of causation is not appropriately decided on a motion for summary judgment. Therefore, I respectfully dissent to Divisions 1 and 2 of the majority’s opinion and would affirm the decision of the Court of Appeals.
I am authorized to state that Chief Justice Sears joins in this dissent.
In Cox, this Court recognized the difficulties that courts have had in determining whether a nuisance is permanent or temporary for statute of limitations purposes, and adopted the Restatement approach to classifying continuing nuisances in an effort to alleviate the confusion. 239 Ga. at 128-129.
See, e.g., City of Columbus v. Myszka, 246 Ga. 571, 572 (272 SE2d 302) (1980) (distinguishing a continuing, abatable nuisance from a permanent nuisance); Brand v. Montega Corp., 233 Ga. 32, 33 (209 SE2d 581) (1974) (“In a surface-water invasion case, the continuing invasions amount to a continuing trespass which is the equivalent of a continuing nuisance.”); City of Gainesville v. Waters, 258 Ga. App. 555, 558 (574 SE2d 638) (2002) (“Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie.”); City Council of Augusta v. Boyd, 70 Ga. App. 686, 688 (29 SE2d 437) (1944) (holding that the nuisance is not permanent because it can be abated at any time).
This Court in Hibbs v. City of Riverdale, a case cited by the majority, recognizes that a party can be held liable for a continuing nuisance whether the party constructs or maintains the nuisance. 267 Ga. 337, 338 (478 SE2d 121) (1996).
Even if the Special Master were to find that the Defendant’s drainage pipe did not cause flooding when it was created, this does not necessarily preclude the Plaintiffs’ claim. As the Restatement (Second) of Torts § 834 (f) states:
In some [nuisance] cases the physical condition created is not of itself harmful, but becomes so upon the intervention of some other force - the act of another person or force of nature. In these cases the liability of the person whose activity created the physical condition depends upon the determination that his activity was a substantial factor in causing the harm, and that the intervening force was not a superseding
Reference
- Full Case Name
- CITY OF ATLANTA Et Al. v. KLEBER Et Al. (Two Cases)
- Cited By
- 29 cases
- Status
- Published