GEORGIA NORTHEASTERN R. CO., INC. v. Lusk
| Decision Date | 20 October 2003 |
| Docket Number | No. S03G0592.,S03G0592. |
| Citation | 587 S.E.2d 643,277 Ga. 245 |
| Parties | GEORGIA NORTHEASTERN RAILROAD, INC. v. LUSK. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Casey, Gilson & Leibel, Matthew D. Williams, Joyce G. Lewis, Atlanta, for appellant.
Hasty, Pope & Ball, William G. Hasty, Jr., Marion T. Pope, Jr., Jonathan A. Pope, Canton, for appellee.
Larry Lusk brought suit against Georgia Northeastern Railroad, Inc. ("GNRR") alleging that his riverside property had been eroded as a result of a nuisance maintained by GNRR. A jury found in favor of Lusk and awarded him $5,400 for the diminution in fair market value of the property before and after the damage and $182,755 for the estimated cost to restore the eroded riverbank. The Court of Appeals affirmed the judgment. Ga. Northeastern R.R. Co. v. Lusk, 258 Ga. App. 742, 574 S.E.2d 810 (2002). We granted certiorari to consider whether the damages awarded constituted an impermissible double recovery and whether cost to repair or restore land is an appropriate measure of damages when that cost is disproportionate to the diminution in value. For the reasons that follow, we reverse the Court of Appeals and remand the case for a new trial on damages.
The evidence at trial established that Lusk owns property along the Etowah River in Cherokee County that he uses for agricultural and recreational purposes. The property is crossed by a GNRR railroad track that spans the river via a bridge owned and maintained by GNRR. The entire tract, as originally purchased, was 94.92 acres; approximately 12.5 acres are situated down river of the bridge. The evidence adduced at trial authorized the jury to find that GNRR allowed debris to accumulate against a bridge pylon and that the large debris pile redirected the natural flow of the river onto Lusk's riverbank. Despite repeated requests by Lusk, GNRR failed to remove the debris. Over the course of several years, the diverted water eroded a 456 foot stretch of riverbank and washed approximately 588,000 cubic square feet of soil, or .6 acre, into the river.1 The jury was authorized to reject the opinion of GNRR's expert that nothing needed to be done to the riverbank and to find that because of the damage the riverbank sustained as a result of the nuisance GNRR created, Lusk's property would continue to erode into the Etowah unless steps were taken to prevent that occurrence.
1. Georgia, as part of its common law and public policy, has always prohibited a plaintiff from a double recovery of damages; the plaintiff is entitled to only one recovery and satisfaction of damages, because such recovery and satisfaction is deemed to make the plaintiff whole.
Candler Hospital v. Dent, 228 Ga.App. 421, 422, 491 S.E.2d 868 (1997). Accord Central Ga. Power Co. v. Pope, 141 Ga. 186, 187(3), (6)(b), 80 S.E. 642 (1913) ( ). Accordingly, a plaintiff is not entitled to an award of both the diminution in market value and costs to restore for the same injury occasioned by the same trespass and nuisance. The evidence adduced at trial reflected that as a result of the nuisance GNRR created, 60 percent of one acre of Lusk's property was eroded into the river.2 Lusk testified that his property was worth between $8,000 and $10,000 per acre. The jury awarded Lusk $5,400, which is precisely 60 percent of $9,000, an award that appears to directly reflect the usable acreage Lusk irreparably lost. The jury also awarded Lusk as the cost of "restoration" the sum of $182,755, which was the precise dollar figure given by GNRR's expert as the cost of stabilizing Lusk's eroded riverbank. This amount did not represent the sum necessary to "restore" Lusk's property to its pre-tort condition, as the testimony at trial was unanimous that the riverbank repair costs did not include any amounts to replace the 588,000 cubic square feet of soil eroded into the river.3 Rather, the testimony reflected that the sum was necessary to prevent further deterioration of the riverbank and future loss of usable acreage.
Although the particular sums awarded by the jurors in this case indicate that they may not necessarily have...
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