Forsyth County Hindu Center in Controversy

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Easement by Way of Necessity Need Not be Specially Pled

In the opinion in S-D RIRA, LLC v. Outback Property Owners; Ass'n, 2014 Ga. App. LEXIS 813 (Nov. 21, 2014),  the Georgia Court of Appeals considered a claim for a right of way through a subdivision restricted by a declaration of covenants.  The court made a variety of holdings regarding facts of a case involving an alleged easement to access property through property that had been subjected to a declaration of covenants and deed restrictions.  The simplest holding of the case was to state that a trial court may not require the petitioner to plead specific facts to set for a claim for an easement by way of necessity under Georgia law.

The other holdings in the case are more difficult to describe.  One interesting issue addressed by the court was whether the road use was a continuing violation of the covenants that escaped the bar of the two year statute of limitations applicable to covenant violations.  Part of the court would have held that the first use of the road alleged to be in violation of the covenants would have barred claims based on subsequent uses that were the subject of a lawsuit brought more than two years after the first use. The court would have held that the statute of limitations for a covenant violation commenced from the first use of the road in violation of the declaration of covenants, and that a claim for breach of the covenants could not be brought more than two years after the first violation.  This faction of the court would have held that the continuing nuisance doctrine that renews a claim for damages from a nuisance each time the offending act is repeated, without regard to when it first commenced, does not apply to claims for breach of land covenants. This part of the court would have apparently overruled cases applying the continuing nuisance doctrine to covenant cases.

The majority of the court appeared to rebuff this finding and held that the two year statute of limitations would commence each time the violation of the declaration of covenants occurred, or each time the road was used in violation of the covenants.  This faction of the court held that the continuing nuisance doctrine that provides an exception to the bar of the statute of limitations in nuisance cases would continue to apply to claims for breach of covenants.  

Continuing Nuisance Claims Against Counties Compared to Completed Nuisance Claims

The Georgia Court of Appeals recently allowed a county to escape liability for drainage problems resulting from a pipe in the opinion in Liberty County v. Eller, 2014 Ga. App. LEXIS 424, 6-8, 2014 WL 2884097 (Ga. Ct. App. June 26, 2014).  In the Eller opinion, the court considered a claim that a county had caused damages to private property due to a pipe that had been negligently installed more than four (4) years prior to filing suit.  The Court held that all parts of the claim other than the claim for inverse condemnation due to a nuisance were barred by the doctrine of sovereign immunity.  Then, turning to the claim of inverse condemnation from a nuisance, the court dismissed the claim under the statute of limitations, which was four (4) years, holding that claim was time-barred.   

In reaching its conclusion in Eller, supra, the Court went to great lengths to distinguish the case from a continuing nuisance due to a lack of maintenance of a pipe. The court noted the statute of limitations would not have barred a continuing nuisance claim for lack of maintenance, stating as follows:

Landowners may show a continuing nuisance through evidence that an existing condition, such as a culvert or drainpipe, was improperly maintained. Kleber, supra, 285 Ga. at 417 (1); see alsoColumbus v. Cielinski, 319 Ga. App. 289, 292 (1) (734 SE2d 922) (2012) (homeowner's claim for continuing nuisance based on improper or negligent maintenance of drainage system not barred). To the extent, however, that landowners complain about the mere presence of a culvert or drain pipe “due to improper installation, their nuisance claim is permanent in nature.” Kleber, supra, 285 Ga. at 416 (1).  

Eller, supra, The court noted that the statute of limitations for a claim based on a permanent nuisance based on the existence of a pipe, as opposed to maintenance, runs at installation. Id. 

Georgia Court of Appeals Holds Ownership of Streets Alone Does Not Create Municipal Liability for Drainage

In the recent opinion in City of Atlanta v. Demita, 2014 Ga. App. LEXIS 590, 8-9, 2014 WL 4086244 (Ga. Ct. App. Aug. 20, 2014), the Georgia Court of Appeals recently held that mere ownership of streets, without more, does not give rise to municipal liability for flooding caused by drainage flowing off the streets.    The City of Atlanta argued that there was no evidence that the City "ever installed any manhole or grate to allow water on Oakridge Avenue to drain into sewer piping, constructed any catch basin on the street, or took control and responsibility for maintaining any such sewer or drainage infrastructure components" on the street.

This case turned on the lack of any City participation in any part of the drainage system relating to the right of way, and would not prevent municipal liability for inverse condemnation in a case where a governing authority has channeled street water into a government-owned catch basin that concentrates street water into a particular location on private property.  It is significant to note that in City of Atlanta v. Demita, supra, the court of appeals found that the water simply ran to where it would pool by force of natural gravitation, and had not been concentrated by any infrastructure accepted by the city.   In addition, there was no argument for an implied acceptance of dedication of streets through any action or inaction by the city.   The court also noted that the flooding was due to construction along the street by a builder.

Wrested Vegetation Rule Provides a Point of Measurement, and Not an Exception to the Stream Buffer

In Georgia River Network v. Turner, 2014 Ga. App. LEXIS 549, 2, 2014 WL 3557407 (Ga. Ct. App. July 16, 2014) (the "Turner Case"), the Georgia Court of Appeals addressed an issue of interpretation of the stream buffer requirements in the Georgia Erosion and Sedimentation Act of 1975, O.C.G.A Section 12-7-1, et seq. (the "Act").  The result of the opinion was to hold that the stream buffers do not apply only to streams with vegetation along the banks within the area of the prescribed buffer, but apply to all state waters, and even to those streams without vegetation on their banks.  

The Act implements stream buffers that extend 25 feet from a stream.  The state stream buffer prohibits land disturbance within the buffer area.  The Act defines the point for measuring the buffer as being 25 feet from the point of "wrested vegetation" along the bank.   In the Turner case, the court of appeals reviewed a trial court's order regarding a petition by river groups to challenge an interpretation by the Georgia Environmental Protection Division (the "EPD") that the wrested vegetation rule meant that if a stream did not have vegetation along its banks, there was no point where "wrested vegetation" would have begun, and therefore, there would be no stream buffer.  

The court of appeals held this interpretation was not accurate and stated that while the language of the Act was inconsistent, the purpose of the Act was not to eliminate stream buffers along rocky shores or denuded areas.   The court held that stream buffers extend 25 feet from the banks of streams even if there is no wrested vegetation to be found reasoning that the wrested vegetation rule was simply to provide a means to measure the boundary of the 25 feet, and not to provide an exception to the Act.  

County Liability for Storm Water Run from Streets

In Gwinnett County, Georgia v. McManus, Case No. S13A1878 (March 3, 2014), the Georgia Supreme Court recently upheld the grant of an order by the Gwinnett County Superior Court requiring Gwinnett County to stop directing excessive storm water runoff from a road on to homeowners' private property.   The Court held that the court's preliminary injunction was correctly entered by the lower court.

In the McManus case, the County contended that it owned an easement to drain water from a temporary detention pond and sediment basin on to the homeowners' property.  However, the court held this easement right did not grant the County anything but a right to direct water through the easement, and did not grant the County the right to damage the property, or direct the drainage of sediment filled storm water outside of the drainage.