SOIL & WATER CONSERV. COM'N v. Stricklett

• Decision Date: 23 October 2001
• Docket Number: No. A01A1365., No. A01A1364
• Court: Georgia Court of Appeals
• Parties: STATE SOIL & WATER CONSERVATION COMMISSION et al. v. STRICKLETT et al. Stricklett et al. v. State Soil & Water Conservation Commission et al.

555 S.E.2d 800

252 Ga. App. 430

STATE SOIL & WATER CONSERVATION COMMISSION et al. v. STRICKLETT et al.

Stricklett et al. v. State Soil & Water Conservation Commission et al.

Nos. A01A1364, A01A1365.

Court of Appeals of Georgia.

October 23, 2001.

Reconsideration Denied November 15, 2001.

Thurbert E. Baker, Atty. Gen., Denise Whiting-Pack, Asst. Atty. Gen., Fortson, Bentley & Griffin, J. Edward Allen, Jr., Athens, Augustus T. Curtis, Atlanta, for appellants.

Kerry S. Doolittle, Watkinsville, for appellees.

Holland & Knight, Mary Ann B. Oakley, amicus curiae.

ANDREWS, Presiding Judge.

These appeals arise from a complaint for equitable relief brought by the State Soil & Water Conservation Commission (the Commission) and the Broad River Soil & Water Conservation District (the District) alleging that Mark and Sharon Stricklett should be ordered to remove the residence they built on a location near a dam across the South Fork of the Broad River in Madison County. The Commission and the District claim the residence substantially interferes with a pre-existing easement granted to the District to operate and maintain the dam and impound floodwaters. The Strickletts counterclaimed seeking damages against the Commission and the District for intentional infliction of emotional distress, abusive litigation, and expenses of litigation. They also moved for recovery of attorney fees pursuant to OCGA § 9-15-14.

The trial court granted summary judgment in favor of the Strickletts on the claim for equitable relief on the basis that the residence does not substantially interfere with the easement and that the relief sought was barred by the principles of laches and equitable estoppel. The trial court also entered final judgment denying the Strickletts' counterclaims and their motion for attorney fees. In Case No. A01A1364, the Commission and the District appeal from the summary judgment order in favor of the Strickletts, and in Case No. A01A1365, the Strickletts appeal from the judgment against their counterclaims and motion for attorney fees. Because we find that factual issues and public policy considerations preclude the grant of summary judgment in favor of the Strickletts on the claim for equitable relief, we reverse the grant of summary judgment in Case No. A01A1364. In Case No. A01A1365, we vacate the denial of attorney fees sought pursuant to OCGA § 9-15-14 and reverse the trial court's judgment on the pleadings dismissing the Strickletts' claims for intentional infliction of emotional distress and expenses of litigation. We affirm the trial court's dismissal of the Strickletts' claim for abusive litigation as premature.

Case No. A01A1364

1. The Commission and the District contend that the trial court erred by concluding as a matter of law that the Strickletts' residence did not substantially interfere with the easement rights granted for the maintenance of the dam and floodwater impoundment.

The Commission and the District are state agencies organized according to the Soil and Water Conservation Districts Law (OCGA § 2-6-20 et seq.) for various goals including soil conservation, erosion prevention, and flood control. The District (under the supervision of the Commission) is authorized to pursue these goals by the construction and maintenance of dams and other flood control structures. Pursuant to this authority, the District obtained an express written easement recorded in the Madison County real property records in 1961 over approximately 49 acres of land traversed by the South Fork of the Broad River, which allowed the District to construct a dam across the South Fork and impound waters on the land. The recorded easement document provided in part as follows:

[An easement is granted to the District for the purpose of] the construction, operation, maintenance and inspection of ... [a] floodwater retarding structure [(a dam)]... located on the above described land; for the flowage of any waters in, over, upon, or through, such works of improvement; and for the permanent storage and temporary detention, either or both, of any waters that are impounded, stored or detained by such works of improvement.... The location on the ground of the easement herein granted ... is as follows: A floodwater retarding structure with a sediment pool up to 700.0 feet elevation, mean sea level, and floodwater flowage up to 725.0 feet elevation, mean sea level, as shown on Map No. 1 for South River Watershed in Madison County, Georgia on file in [the Madison County real property records], which description by reference is incorporated herein. This easement includes the right of ingress and egress at any time over and upon the first above described land of the Grantor. There is reserved to the Grantor, his heirs and assigns, the right and privilege to use the first above described land of the Grantor at any time, in any manner and for any purpose not inconsistent with the full use and enjoyment by the Grantee, its successors and assigns, of the rights and privileges herein granted.

Pursuant to these easement rights, the District constructed a 44-foot high earthen dam across the South Fork which created a normal impounded water pool with a surface area of approximately 12 acres and a storage volume of 80 acre-feet. The dam has the capacity to greatly increase the normal pool size by impounding floodwater levels in the pool up to a surface area of approximately 40 acres and a storage volume of 589 acre-feet. The District's recorded floodwater easement was described as extending on the ground to an elevation of 725 feet above mean sea level. The easement also refers to and incorporates a map describing the floodwater easement and stating that the map is recorded in the Madison County real property records (without stating where). The map, which was recorded but not in the chain of title to the land burdened by the easement, was eventually located after the present suit was filed, but it provided no additional description for the location of the floodwater easement.

On June 21, 1995, the Strickletts purchased a 5.78-acre tract of land which included part of the land on which the dam was constructed and which was burdened by the recorded easement. On October 24, 1995, the Strickletts commenced construction of a residence on the land upstream of the dam, near the toe of the dam, above the normal level of the impounded water. The residence was completed on February 1, 1996. The Commission and the District produced evidence that the house, as constructed, altered portions of the earthen dam and the dam's emergency spillway and posed serious erosion problems for the spillway. Although the house was built well above the normal impounded water level, evidence showed that the foundation and floor of the house were a few feet below the maximum floodwater elevation provided in the recorded easement and that the house was subject to being flooded by impounded waters at the maximum elevation of the floodwater easement during projected maximum rainfalls. There was also evidence that, because of the recent location of residences in the floodplain downstream of the dam, the dam would have to be reclassified as a Category I dam (improper operation or dam failure would result in probable loss of human life) under the Georgia Safe Dams Act (OCGA § 12-5-370 et seq.). Other evidence showed that, although the Strickletts' residence did not substantially change how the dam presently operated, it did limit available options for improvements to the spillway which the dam may need for compliance with the Safe Dams Act.

In support of their motion for summary judgment, the Strickletts produced evidence that the construction of the residence did not alter the dam or spillway. They showed that the manner in which the dam and spillway were constructed made it impossible for floodwaters to reach the elevation of the residence. They also produced evidence showing that, even considering floodwater evidence produced by the Commission and the District that the residence could be flooded, the possibility that floodwaters would ever reach the maximum elevation of the floodwater easement and flood the residence was extremely remote. The Strickletts offered to formally assume liability for any damages caused to them by flooding. Accordingly, the Strickletts contended that the residence did not substantially interfere with the easement rights.

The easement given to the District in 1961 sets forth the intent of the parties that it grant nonexclusive rights over the land to construct, operate, inspect, and maintain a dam capable of impounding a pool of water up to a stated floodwater elevation. The easement expressly reserved in the grantor and successors in title, including the Strickletts, the right to use the land in any manner not inconsistent with the District's full use and enjoyment of its easement rights. This accords with the principle that "unless the easement is exclusive, the grantor may construct buildings or other improvements on the land which do not `substantially interfere' with the enjoyment of an easement previously granted." Upson v. Stafford, 205 Ga.App. 615, 616, 422 S.E.2d 882 (1992); Yeomans v.. Head, 243 Ga. 266, 253 S.E.2d 746 (1979) (owner of land burdened by a nonexclusive easement retains a concurrent right of use and possession, except so far as a limitation thereon is essential to the reasonable enjoyment of the easement).

We agree with the trial court's determination, as a matter of law, that the minor encroachment by the residence a few feet below the maximum elevation of the floodwater easement does not substantially interfere with the District's enjoyment of the easement. The only argument made by the Commission and the District on this issue is that they might potentially be liable for damages caused to the Strickletts by floodwaters reaching the maximum floodwater elevation of the easement, however...