In Kitchin v. Reidelberger, A11A0459, 2011 WL 2641280 (Ga. Ct. App. July 7, 2011), the Georgia Court of Appeals issued an interesting opinion in a dispute between adjoining landowners over a collapsed retaining wall. The plaintiffs sued the adjacent landowner and a construction company. One of the defendants counterclaimed. The jury found in favor of the defendant on the counterclaim and awarded punitive damages.
The case is interesting due to its posture. However, the opinion did not explain the facts to show how the circumstances gave rise to the assertion of a counterclaim in a nuisance case.
The opinion made procedural rulings and gave some indication of the proper measure of damages in a nuisance case. The damages ruling came in the context of a review of the jury charges given by the judge. The court upheld the following charge to the jury:
The court held the charge was an accurate statement of the types of damages that could be awarded in a nuisance action. Accordingly, where the injured property owner can restore the property by taking action, the cost of the repair is the proper measure of damages plus the loss of use of the land during the time of the nuisance. However, if there is nothing that can be done to abate the nuisance, then the measure of damages is the diminution in value of the property.I charge you a nuisance may damage a landowner. Where the nuisance is permanent and non-abatable, the measure of damages is the diminution in value of the land; however, if the nuisance or trespass can be abated, the cost to restore the premises to the pre-damaged condition is a more equitable measure of damages and may be used rather than the diminution in the market value. Where a nuisance is abatable which deprives the owner of use of his land, he can recover the diminution of the rental value of the land.
