The following case, issued yesterday by the Georgia Supreme Court, addresses the accrual of the statute of limitations on a claim of inverse condemnation based on nuisance.
Wise Bus. Forms, Inc. v. Forsyth Cnty., S22G0874, 2023 WL 6065278 (Ga. Sept. 19, 2023)
We granted certiorari in this case to clarify the standards for determining when a claim for inverse condemnation by permanent nuisance accrues for purposes of applying the four-year statute of limitation set forth in OCGA § 9-3-30 (a).
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Permanent nuisance cases vary in relation to when the alleged harm to a plaintiff’s property caused by the nuisance becomes “observable” to the plaintiff. Forrister, 289 Ga. at 333 (2), 711 S.E.2d 641. In some cases, the harm to the plaintiff’s property is immediately observable “upon the creation of the nuisance.” Id. For example, where a landowner or governmental agency “erects a harmful structure such as a bridge or conducts a harmful activity such as opening a sewer that pollutes a stream,” and it is immediately obvious that the structure or activity interferes with the plaintiff’s interests, the plaintiff must file “one cause of action for the recovery of past and future damages caused by [the] permanent nuisance” within four years of the date the structure is completed or the harmful activity is commenced. Id. at 333-336 (2) and (3), 711 S.E.2d 641 (citing Restatement (Second) of Torts §§ 899 and 930). Phrased another way, where the “construction and continuance” of the permanent nuisance at issue is “necessarily an injury, the damage is original, and may be at once fully compensated. In such cases[,] the statute of limitations begins to run upon the construction of the nuisance.” City Council of Augusta v. Lombard, 101 Ga. 724, 727, 28 S.E. 994 (1897).
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In other words, under Cox, when a nuisance “is by its nature continuing,” the plaintiff can elect to proceed in one of two ways. The first option would be to treat the nuisance as “temporary” and file a lawsuit to recover for “all those damages [or harms] which have occurred [to the plaintiff’s property] within the past four years.” Cox, 239 Ga. at 127-128, 236 S.E.2d 73. And, by implication, when the plaintiff elects to proceed in this manner and treats the nuisance as “temporary,” if the continuing nuisance causes additional harms to the plaintiff’s property in the future, the plaintiff can file another lawsuit seeking recovery for these additional harms, as long as the plaintiff initiates the lawsuit within four years from the occurrence of that future harm. See Lombard, 101 Ga. at 727, 28 S.E. 994 (in these cases, “every continuance of the nuisance is a fresh nuisance, for which a fresh action will lie,” and the cause of action “accrues at the time of such continuance” and “the statute of limitations runs only from the time of such accrual”). Alternatively, the plaintiff can elect to file a single lawsuit to recover for harms that occurred to the plaintiff’s property within the past four years and for all prospective harms that might occur to the plaintiff’s property in the future. See Cox, 239 Ga. at 127-128, 236 S.E.2d 73. And, if the plaintiff elects to proceed in this manner, the plaintiff is limited to seeking those damages in one lawsuit. See id.
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In the present case, the nuisance complained of is the expansion of McFarland Parkway, the drainage system associated with the McFarland Parkway Project, and other construction aspects of this roadway expansion project, which was completed in 2000. In its complaint, Wise alleged that, as a result of this nuisance, whenever significant rainfall occurs, Wise’s Subject Pipe is “deliberate[ly,] regular[ly,] and recurrent[ly]” used for “the disposal of unnatural volumes of stormwater runoff,” which has caused the gradual deterioration of the Subject Pipe, erosion of the surrounding soil, and the development of a sinkhole—harms of which Wise became aware on or after June 27, 2016. In sum, Wise has alleged a nuisance that “will continue indefinitely,” and because this alleged nuisance will continue indefinitely, Wise had the option either “to treat the nuisance as ‘temporary’ and sue for all those damages which have occurred within the past four years,” or to “elect to sue for all future damages as well and put an end to the matter.” Cox, 239 Ga. at 128, 236 S.E.2d 73. And, here, Wise has elected to pursue the latter option and to sue both for those harms that occurred within the past four years, as well as all future harms, in one lawsuit. See id.
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The Court of Appeals erred in failing to accept as true—as it was required to do—Wise’s allegations that the alleged harms were hidden from Wise’s view (i.e., not observable) until Wise discovered the sinkhole on its property in 2016. See Norman, 310 Ga. at 131 (2), 848 S.E.2d 835. Accordingly, we conclude that the Court of Appeals erred in affirming the trial court’s dismissal of Wise’s inverse-condemnation-by-permanent-nuisance claim on the basis that this claim was barred by the statute of limitation under OCGA § 9-3-30 (a). Thus, we reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals with direction to remand the case to the trial court to conduct further proceedings consistent with this opinion.