Cox v. Cambridge Square Towne House, Inc.

• Court: Georgia Supreme Court
• Writing for the Court: JORDAN
• Citation: Cox v. Cambridge Square Towne House, Inc., 236 S.E.2d 73, 239 Ga. 127 (Ga. 1977)
• Decision Date: 25 May 1977
• Docket Number: No. 32202,32202
• Parties: Charles Ray COX v. CAMBRIDGE SQUARE TOWNE HOUSES, INC.

Page 73

236 S.E.2d 73

239 Ga. 127

Charles Ray COX v. CAMBRIDGE SQUARE TOWNE HOUSES, INC.

No. 32202.

Supreme Court of Georgia.

May 25, 1977.

Stow, Garvin & Glenn, James A. Glenn, Jr., Gainesville, for appellant.

Carter, Ansley, Smith & McLendon, James B. Gurley, Atlanta, for appellee. JORDAN, Justice.

In February 1967, a storm drain system was installed in an apartment complex presently owned by the appellee. In June 1971, the appellant filed this suit alleging that the storm drain system greatly increased the flow of surface waters across his land and constituted a trespass for which he sought actual and punitive damages and a permanent injunction. Appellees moved to dismiss the action on the ground that appellant's claims were barred by the four year statute of limitations applicable to damage to realty (Code Ann. § 3-1001). Appellant made a cross motion for summary judgment on the issue of liability. The trial court, after reviewing the affidavits, interrogatories, and depositions on file, denied the appellant's cross motion and granted the appellee's motion. This was, in effect, a grant of summary judgment. See Code Ann. § 81A-112(c).

This case amply demonstrates the confusion which has long existed as to when a nuisance, which is by its nature continuing, is considered "permanent."

This question inevitably arises in one of two contexts. One is where the suit is brought within four years of the creation of the nuisance, and the dispute is over whether the plaintiff may recover prospective as well as past damages. See Bainbridge Power Co. v. Ivey, 41 Ga.App. 193, 152 S.E. 306 (1929); Langley v. City Council of Augusta, 118 Ga. 590, 45 S.E. 486 (1903). The other class of cases consists of those in which the suit is filed more than four years after the creation of the nuisance, and the dispute centers around whether the action for damages is barred by the statute of limitations. See City Council of Augusta v. Lombard, 101 Ga. 724, 28 S.E. 994 (1897); Danielly v. Cheeves, 94 Ga. 263, 21 S.E. 524 (1894); Smith v. Dallas Utility Co., 27 Ga.App. 22(2), 107 S.E. 381 (1921). The instant case belongs to this latter class of cases and it is in these cases that the determination of "permanency" has been most difficult.

In 1956, then-Chief Judge Felton remarked: "The cases are very confusing on the question of when a party must or may sue in one action for all damages and vice versa. I do not know that a definite rule can be gleaned from the decisions. . . ." Nimmons v. City of LaGrange, 94 Ga.App. 511, 95 S.E.2d 314 (1956) (Felton, C. J., dissenting). Twenty-one years have passed since Justice Felton's comment, and after an exhaustive review of the cases it can safely be said that the statement is as true today as when it was written.

The Restatement of Torts sets out a rule which appears to be very similar in operation and effect to one suggested by Professor McCormick in 1923. See McCormick, Damages For Anticipated Injury to Land, 37 Harv.L.Rev. 574, 595-601 (1923). Section 930 of the Restatement provides in pertinent part: "(1) Where, by the maintenance of a structure on his own land or by acts and operations thereon, a person causes continuing or recurrent tortious invasions of the land of another, the other is entitled to recover for future violations if, and only if, it appears that (a) the situation will continue indefinitely and (b) it is incident to (i) an enterprise affected with a public interest, the operation of which as presently operated will not be enjoined, or (ii) other enterprises if the injured person so elects." The Restatement also provides that in cases such as those which fall within the provisions of § 930(1)(b)(ii), the statute of limitations "does not run from the time of the first harm except as to the harm then caused." Restatement of Torts §...