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Georgia Local Government Drainage Liability: Nuisance and Trespass

A long-running dispute between a landowner and a municipality has escalated to the Georgia Court of Appeals and in the federal court for the Northern District of Georgia.[1] The municipality maintained a stormwater system that discharged on property uphill from the landowner’s property. The uphill property was used as an illegal dump, and debris washed downhill from the dump to the landowner’s property. The debris clogged the landowner’s surface water drainage system, which caused flooding of the property and a building.

State Case

The landowner sued for trespass, nuisance, takings, and inverse condemnation. While the other claims were barred by the four-year statute of limitations, the court addressed the plaintiff-landowner’s claim for continuing nuisance.

Municipalities may be liable when they negligently construct or maintain a sewer or drainage system that causes repeated flooding of property, such that it results in a continuing, abatable nuisance.[2] For a municipality to be liable for maintenance of a nuisance:

the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition, . . . the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.[3]

But what happens when the system discharges onto property not owned or controlled by the municipality before reaching a plaintiff-landowner’s property? According to the Georgia Court of Appeals answered as follows:

[The plaintiff-landowner] must come forward with sufficient evidence to create a factual question as to (1) whether the private property onto which the [city’s] culvert discharges water is part of the drainage system that the city has undertaken to maintain, and (2) whether the city’s maintenance (or lack thereof) of the drainage system caused the repeated flooding.

The court concluded that the municipality had no liability because it did not own, maintain, or exercise dominion or control over the uphill property. While the municipality had cleared out concrete blocks and debris on the landowner’s property on one occasion, such evidence was not adequate to show any rights on the uphill property. Since the landowner provided no evidence that the municipality exercised rights or ownership of the uphill property, it could not be liable for any drainage or flooding from the uphill property. Therefore, the municipality had no liability for the damages sustained on the plaintiff-landowner’s property.

Federal Case

On January 7, 2020 – after the state case was dismissed – the plaintiff-landowner also sued in federal court, alleging a federal takings claim under Section 1983. On a motion to dismiss, the municipality argued that the claims should be dismissed, among other reasons, because the pertinent issues were resolved in state court (i.e., res judicata). The federal court agreed with the municipality. Even though the claim in state court was based on state law, it arose from the same subject matter and alleged harm. As a result, the plaintiff-landowner could not litigate the same claim in federal court that previously had been dispensed in state court.

[1] City of Gainesville v. Waldrip, 345 Ga. App. 478 (2018); Waldrip et al. v. City of Gainesville, No. 2:20-CV-00285-SCJ, 2021 WL 2638992 (N.D. Ga. Apr. 27, 2021).

[2] City of Gainesville v. Waters, 258 Ga. App. 555, 557 (2002).

[3] Mayor of Savannah v. Palmerio, 242 Ga. 419, 426-7 (1987).