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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Tuesday, June 28, 2011

Electric Utility Subject to Nuisance Claim for Spraying Easement with Herbicide

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.

Sunday, June 26, 2011

Award of Attorneys' Fees Requires Actual Damages

In the recent opinion in Benchmark Builders, Inc. v. Schultz, Case No. S10G1141 (hereinafter referred to as "The Benchmark Case"), the Georgia Supreme Court answered the question where a jury award of attorneys' fees on a counterclaim without awarding any actual damages constituted reversible error in the absence of an objection to the verdict form.   The court held such an award is void, and that a party does not have to object to the form of the verdict in order to preserve the error for appeal.

Sunday, June 19, 2011

How Long Does a Property Owner Have to File a Nuisance Claim?

The Georgia Supreme Court examined the issue of the time for bringing a nuisance claim against a public utility creating a nuisance in its opinion in Oglethorpe Power Corp. v. Forrister, Case No. S10G1244, issued on June 13, 2011.  In its decision, the court discussed the difference between a permanent nuisance, and a nuisance that is not considered permanent, and the impact of the defined difference on how long a neighbor has to file a claim for damages.  The court held that a power company creating a noise nuisance was deemed to be a permanent nuisance, but that a change in the nature of the aggravating noise at a certain point in time could trigger a new cause of action.   Accordingly, while the plaintiffs had filed their claim too late in arguing that the electric utility was a nuisance in general, the court held the plaintiffs did have a claim for the added nature of aggravation that occurred when plant changes were made within the four (4) year statute of limitations.   The court's exposition of the logic it employed is excellent; many nuisance principles are explained in an understandable way.  But the opinion will undoubtedly lead to confusion.

Any attempt to understand the opinion requires an examination of the difference between a continuing permanent nuisance and a nuisance that is deemed continuing, but abatable.    A continuing nuisance is any condition causing noise, aggravation or injury to another land owner that occurs repetitively over time due to conditions on land.   For example, a stormwater condition damaging a down hill owner from construction of a detention pond on a property may be deemed to be a continuing nuisance.

Continuing nuisances can be deemed permanent or abatable.  Where the defendant's injury causing property can be modified or returned to its pre-nuisance condition, the condition is deemed abatable.  An abatable condition is simply one that can be stopped.

Where the defendant's condition on its land cannot be abated, then in such a case the law deems the condition to be permanent.  In the most simple terms, a permanent nuisance exists where it would hurt public policy interests, or where it would be too difficult or expensive to stop it.