On June 27, 2011, the Georgia Supreme Court held that an electric membership corporation (an "EMC") could be held liable for a nuisance for cutting a swath through a landowner's trees and spraying the area with herbicide. Daniel v. Amicalola Electric Membership Corporation, Appeal No. S11A0019 (Slip Op., June 27, 2011). The court reached this holding after making a series of procedural and substantive findings regarding nuisance claims against power utilities arising from the electric company's alleged mistreatment of property.
In Daniel, the plaintiffs sued the EMC when they discovered that the EMC had cut a swath of trees down on their property and had sprayed the area with herbicide. In the facts under scrutiny in the opinion in Daniel, supra, the EMC had allegedly cut a 750 foot long by 49 foot wide path through the plaintiffs' woods. When the property owners discovered the alleged intrusion, they called the EMC representative, who came out and assured them no further acts would be taken until the EMC resolved the issue of the existence of an easement. Later, the EMC entered the property and sprayed the area with a plant killing substance used to maintain power line easements. The plaintiffs sued the large company for a nuisance, trespass, and conversion.
The at issue on a motion for summary judgment by the EMC showed that the EMC had attempted to revive an old power line easement that it had abandoned more than ten (10) years before the events at issue.
The Court upheld the constitutionality of a one year statute of limitations applicable to easement claims against EMC's for easement acquisition. It also held that the statute requiring that the Georgia Attorney General be placed on notice of constitutional challenges to state laws only required fair notice during the litigation, and not pre-suit notice. The Court then held some of the claims were time barred, but allowed non-time barred claims of nuisance to proceed.
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