GEORGIA NORTHEASTERN RAILROAD CO. v. Lusk

• Decision Date: 12 November 2002
• Docket Number: No. A02A1305.,A02A1305.
• Citation: 574 S.E.2d 810,258 Ga. App. 742
• Parties: GEORGIA NORTHEASTERN RAILROAD COMPANY, INC. v. LUSK.
• Court: Georgia Court of Appeals

574 S.E.2d 810

258 Ga. App. 742

GEORGIA NORTHEASTERN RAILROAD COMPANY, INC. v. LUSK.

No. A02A1305.

Court of Appeals of Georgia.

November 12, 2002.

Reconsideration Denied December 6, 2002.

Casey, Gilson, Williams & Shingler, Matthew D. Williams, Atlanta, Joyce G. Lewis, for appellant.

Hasty, Pope & Ball, William G. Hasty, Jr., Jonathan A. Pope, Canton, for appellee.

MIKELL, Judge.

Georgia Northeastern Railroad Company, Inc. (the "Railroad") appeals from the denial of its motion for judgment notwithstanding the verdict (j.n.o.v.) in Larry Lusk's action to recover damages based on the erosion of his property caused by the accumulation of debris beneath a trestle owned by the Railroad. The jury found that the Railroad had committed a continuing, abatable nuisance and trespass and awarded Lusk $5,400 in compensatory damages, representing the diminution in the fair market value of his land; $182,755 for the estimated cost of repair; and $74,238 in litigation expenses. On appeal, the Railroad contends that the trial court erred by (1) denying its motion in limine to exclude evidence of restoration damages; (2) denying its motions for directed verdict and j.n.o.v. on the issue of compensatory damages because a portion of the injury occurred outside the four-year statute of limitation; and (3) denying its motions for directed verdict and j.n.o.v. on the issue of Lusk's entitlement to attorney fees under OCGA § 13-6-11. We affirm the awards of compensatory and restoration damages but reverse the award of attorney fees.

Appellate review of the denial of a motion for j.n.o.v. is governed by the "any evidence" test.¹

In determining whether the trial court erred by denying defendant's motion for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict and judgment n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.²

Viewed in the light most favorable to the verdict, the evidence shows that Lusk owns 94.92 acres of land zoned for agricultural use in Cherokee County³ and that part of his property line extends to the center of the Etowah River. The Railroad operates a railroad line that crosses over Lusk's land, and Lusk owns 12.5 acres down river from the railroad trestle. Lusk testified that beginning in 1987, he noticed an accumulation of dead trees, shrubs, and similar debris on his property on the upstream side of the trestle. Because the debris was diverting the water about 30 or 40 degrees east, Lusk contacted the Railroad, which removed the debris regularly through 1989. In 1990, the Railroad was sold to a group of investors. Thereafter, Lusk testified, the Railroad failed to respond to repeated requests to remove the debris. Meanwhile, according to Lusk, the diversion of the water caused by the debris, which he described as ten to twelve dump trucks' worth, caused his property to erode. Finally, in August 1993, after receiving a letter from Lusk's attorney, the Railroad removed the debris. The railroad did not clear the debris again until August 1995, five months after Lusk filed suit. According to Lusk, that was the last time the Railroad removed the accumulation until the day before trial, which began on October 16, 2000.

Lusk's expert witness, Charles B. Wilson, a soils engineer, testified that the accumulation of the debris diverted the flow of the river and increased its velocity, causing the erosion of Lusk's property. He further testified that the erosion stripped the riverbank bare of vegetation, making it more susceptible to future erosion even if the debris is removed regularly. Accordingly, Wilson concluded that approximately 450 feet of Lusk's property along the riverbank needed to be stabilized to prevent further erosion. John T. Vermont, an environmental scientist, testified that any stabilization project would require a "wetland permit" from the U.S. Army Corps of Engineers, which would, in turn, require the approval of the U.S. Fish and Wildlife Service due to the presence of endangered species of fish in the Etowah River. Based on Vermont's opinion as to what federal regulators would find acceptable, Wilson projected costs of repair ranging from approximately $837,000 to $972,000.

Albert G. Holler, Jr., an expert in hydrologic engineering, testified on behalf of the Railroad that in his opinion, the debris did not cause the erosion. He attributed the erosion to rainfall and flooding, as well as the shape and configuration of the river. Robbin Sotir, a soil bioengineer, or land stabilization expert, testified that the accumulation of the debris was an "extremely small factor" in the erosion. In addition, Sotir disputed Wilson's cost projections, estimating that it would cost $182,755 to shore up the riverbank. The jury awarded precisely this sum in restoration damages to Lusk.

1. The Railroad contends that the trial court erred in denying its motions for directed verdict and j.n.o.v. on the ground that the action was barred by the four-year statute of limitation applicable to actions for trespass to realty.⁴ The Railroad claims that Lusk's property was permanently damaged by a flood in 1990, which started the running of the limitation period, and that Lusk's suit, which was filed in 1995, was time-barred. In addition, the Railroad asserts that no attempt was made to distinguish between damages sustained in 1990 and those occurring within the statute of limitation, rendering the jury's award speculative. We disagree with these contentions and hold that there is evidence to support the jury's verdict that Lusk suffered a continuing, abatable nuisance or trespass.

A continuing nuisance "is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it."⁵

Every continuance of a nuisance which is not permanent, and which could and should be abated, is a fresh nuisance for which a new action will lie. Consequently suit may be maintained for damages growing out of a nuisance of the character indicated, where the damages were inflicted within four years before the time of filing suit, though the act which originally caused the nuisance was not done within the period of limitation of the action.⁶

Lusk testified that on March 17, 1990, the river rose to within a few feet of the bottom of the trestle; that the Railroad had allowed debris to pile up; that after the water receded, he noticed erosion on the eastern side of his property downstream from the trestle; and that although floods had previously occurred, they had never before caused erosion. Lusk testified in detail concerning the method he utilized and the sums he expended to repair the damage caused by the flood. According to Lusk, the method he used seemed to be effective, although he feared that another flood would wash out the area. Lusk testified that his property continued to erode in 1991 because every time the water rose and struck the debris pile, it diverted the river flow to the east at a 30-degree angle, causing the water to shoot directly onto his property. Finally, Lusk testified on cross-examination that the erosion began in 1990 and continued periodically after he repaired the riverbank, causing substantial property loss. In addition, expert witness Wilson testified that the erosion was caused by the increased velocity of the water that was attributable to the accumulation of debris over several years.

The testimony of Lusk and Wilson provided evidence from which the jury could conclude that the damage to Lusk's property sustained in the 1990 flood had been repaired and that the continued diversion of the water caused by the accumulation of the debris created a continuing, abatable nuisance or trespass. Moreover, the jury was thoroughly instructed on the distinction between a permanent trespass and a continuing nuisance, including the fact that it could not award damages for any injury occurring more than four years before suit was filed. Accordingly, we find evidence to support the verdict, and the trial court did not err in denying the Railroad's motions for directed verdict and j.n.o.v. on this issue.

2. We next address the Railroad's contention that the trial court erred in admitting evidence of the cost to repair the property. The Railroad argues that the proper measure of damages in this case is the diminution in the fair market value of the land before and after the injury.

"As a general rule the measure of damages in actions for injuries to real property is the difference in value before and after the injury to the premises. The only exception is when there is a more definite, equitable and accurate way by which the damage may be determined."⁷ In addition, "the cost of repair often has been held to be an appropriate measure of damages in cases involving a continuing nuisance or trespass."⁸ In Southern Mut. Investment Corp. v. Langston,⁹ for example, landowners sued a neighboring apartment complex, alleging it caused excessive water runoff into the stream bordering their properties, thereby eroding the plaintiffs' stream banks. The plaintiffs introduced expert testimony that the problem could be solved by a culvert, and the verdict of $2,000 for each of the four plaintiffs for repair of the property was deemed "a realistic equitable method of assessing the damages."¹⁰

Here, too, there is evidence to support the jury's finding that the cost of repair was equitable under the circumstances.¹¹ Dr. Holler, the Railroad's expert, testified that the erosion would continue and that the stabilization option proposed by Wilson "would armor most anywhere." The jury discounted the cost estimates suggested by Wilson and instead awarded the sum calculated by the Railroad's land stabilization expert,...