City of Columbus v. Barngrover

• Court: Georgia Court of Appeals
• Writing for the Court: BLACKBURN, Chief.
• Citation: City of Columbus v. Barngrover, 250 Ga. App. 589, 552 S.E.2d 536 (Ga. App. 2001)
• Decision Date: 16 July 2001
• Docket Number: No. A01A0341.,A01A0341.
• Parties: CITY OF COLUMBUS v. BARNGROVER et al.

552 S.E.2d 536

250 Ga. App. 589

CITY OF COLUMBUS v. BARNGROVER et al.

No. A01A0341.

Court of Appeals of Georgia.

July 16, 2001.

Eugene H. Polleys, Jr., Columbus, for appellant.

Gary O. Bruce, James D. Patrick, Jr., Columbus, for appellees. BLACKBURN, Chief Judge.

In this case for continuing nuisance, trespass, and inverse condemnation resulting from a system of improperly maintained water and sewage drainage pipes, the City of Columbus appeals the jury's award of damages and an injunction to Dr. Kenneth Barngrover, contending that the trial court erred by: (1) entering judgment on a verdict unsupported by sufficient evidence; (2) denying the City's motion for directed verdict; (3) issuing an injunction contrary to the jury verdict and out of term; (4) failing to bar claims based upon sanitary sewage contamination because appellees did not provide appropriate ante litem notice to the City; and (5) giving or failing to give numerous jury charges.¹

1. The City contends that the evidence was insufficient to support the verdict, arguing that: (a) it had no duty to maintain the drainage system; (b) the Barngrovers owed a servitude to all landowners at a higher elevation to accept free flowing water; and (c) deeds and plats in the record release the City from liability. We disagree.

Where a jury returns a verdict and it has the approval of the trial judge, we construe the evidence with every inference and presumption in favor of upholding the verdict and do so even if the evidence is in conflict. Light v. Mason.²

Viewed in this light, the evidence shows that, on July 27, 1991, Dr. Barngrover and his wife, Marla, purchased a home at 3301 Cathryn Drive in Columbus. The Barngrovers' house sits on a multi-acre site at the bottom of a hill that runs the length of Cathryn Drive. Storm water from both Cathryn Drive and other streets in the northeast corner of the subdivision flows into roadside catch basins and is channeled under the Barngrovers' property through a system of storm water and sewage pipes.³ In addition, a number of grates located on the Barngrovers' property drain storm water into the sewage system.⁴ The storm water is finally routed to a manhole located under the Barngrovers' house, where it is then directed away from the property.

In June 1991, the Barngrovers moved into the main house at 3301 Cathryn Drive and rented the guest house to the seller, Caroline Layfield. At that time, the Barngrovers noticed various inlets and drain covers on the property, but were unaware of the system of drainage and sewage pipes that channeled water under the residence and did not know about the manhole located under the home.⁵

On July 2, 1991, the Barngrovers discovered a sinkhole on the property near the carport. As the City had previously repaired sinkholes on the property,⁶ Layfield called the City which, in turn, sent workers to excavate the site of the cave-in. On November 23, 1992, however, a large sinkhole recurred next to the carport, and, once again, the City was called to the property to perform repairs. Richard McKee, the City's Director of Public Services, inspected the sinkhole and observed water rushing into the hole from the underground drainage system. McKee then directed a City crew to fill the hole with dirt.

This remedy proved to be only a temporary and incomplete fix, however, as the Barngrovers presented evidence of damage to the main residence from the November cave-in, including settlement of the carport foundation at the site of the sinkhole and a crack in the carport wall. Moreover, Dr. Barngrover filled the large sinkhole a number of times, but drainage washed the fill away. And, exacerbating the situation, additional small sinkholes developed on the property after the November incident.

On January 29, 1993, Dr. Barngrover sent a letter to the City demanding that it repair the damage or he would file suit. McKee responded on December 3, 1992, acknowledging the failure of the "drainage system" and the resulting damage to the property and carport as a result of "cave-ins." McKee wrote: "[W]e are working in coordination with the water works to ascertain the full extent of the problem." McKee promised "immediate" action to correct the cave-ins. Despite McKee's assurances, however, the City has consistently refused to make any repairs to the property since 1992. Accordingly, on February 22, 1993, the Barngrovers filed suit for nuisance, trespass, and inverse condemnation resulting from the malfunctioning drainage system.

Sometime after filing suit, the Barngrovers began to notice a strange smell coming from their property and decided to retain an environmental consultant to test for contaminants. The consultant found high levels of fecal coliform bacteria and opined that the sanitary sewer system was broken, causing cross-contamination of storm and sanitary waters on the property. Because of this contamination, the consultant advised the Barngrovers that their home was uninhabitable, and the family moved away in September 1993.

After the ensuing trial, the jury found in favor of Barngrover on August 4, 1999, and awarded him $237,000 for attorney fees, out-of-pocket expenses, and loss of enjoyment of his property.

(a) The City argues that the evidence was insufficient to show that it constructed, owned, accepted title to, or otherwise had a duty to maintain the drainage system. It is, however, well established that "where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable." Hibbs v. City of Riverdale.⁷ See Columbia County v. Doolittle;⁸ DeKalb County v. Orwig;⁹ Martin v. City of Fort Valley;¹⁰ Ingram v. Baldwin County.¹¹ Accordingly, it is not necessary for the City to have actually constructed the drainage system if it undertook to maintain it. Neither is it necessary for the City to own the land or hold title to the drainage system. "While ownership of property generally may give rise to a nuisance when property is used to cause harm to others, such ownership is not an essential element of the cause of action for nuisance." Fielder v. Rice Constr. Co.¹² Rather, the exercise of dominion or control over the property causing the harm is sufficient to establish nuisance liability. Hibbs, 267 Ga. at 339, 478 S.E.2d 121. See Fulton County v. Wheaton,¹³ overruled on other grounds, Orwig, supra; Fielder, supra at 365-366, 522 S.E.2d 13.

Here, the record shows that the City undertook to maintain the drainage system. Director McKee acknowledged that the drainage system under the Barngrovers' property carried water channeled from City streets, was part of the City system, and that the City accepted responsibility for maintaining the system. Additional evidence showed that the City treated the drainage system as City property and routinely accessed and repaired the lines with City funds despite the fact that they were located under private property. Former owner Brent Buck testified that the City came to the property four or five times at his request to fill sinkholes, help with erosion problems, or improve the flow of the sewers. Moreover, Charlie Veasley, Assistant Chief of Rainwater Management for the City of Columbus, testified that, at the City's direction, he maintained a portion of the drainage system extending under 3301 Cathryn Drive for over 30 years.

Based on this evidence, the jury had sufficient grounds to conclude that the City exercised dominion and control over the drainage system so as to give rise to a duty to maintain it. Cf. City of Lawrenceville v. Macko¹⁴ (finding "no evidence" that the City exercised any control over the drainage system).

(b) The City further contends that it was entitled to a directed verdict because the Barngrovers owed the City, as the higher, adjoining property owner, a servitude to accept the flow of surface water across their land. This rule of common law cited by the City, however, applies only when the higher, adjoining property owner does not increase the flow of water by artificial means. Brown v. Tomlinson.¹⁵ Here, even if the City did not initially construct it,¹⁶ the City actively maintains a drainage system that concentrates water from City streets and channels it under the Barngrovers' property. For this reason alone, the City's argument must fail. Moreover, a competing principle of law applies to the facts of this case that prohibits the City from constructing or maintaining a drainage system that repeatedly floods and damages private property so as to constitute a continuing nuisance. See Hibbs, 267 Ga. at 338, 478 S.E.2d 121.

(c) Next, the City vaguely contends that "the deeds and plats in evidence" bind the Barngrovers and release the City from liability. We cannot determine from this general statement the basis of the City's argument. The City violates Court of Appeals Rule 27(c) by failing to cite to facts in the record in support of this argument. Therefore, we consider it abandoned. See Contract Harvesters v. Mead Coated Bd.¹⁷

2. The City contends that the trial court erred by failing to enter a directed verdict in its favor on appellees' nuisance claim.

A directed verdict is proper only if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a verdict. OCGA § 9-11-50(a). In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the any evidence test.

Driggers v. Campbell.¹⁸

As the evidence in this case was sufficient to support the verdict against the City, the trial court did not err in denying the City's motion for directed verdict.

3. The City...