Merlino v. City of Atlanta
| Decision Date | 25 February 2008 |
| Docket Number | No. S07A1271.,S07A1271. |
| Citation | 657 S.E.2d 859,283 Ga. 186 |
| Parties | MERLINO v. CITY OF ATLANTA et al. |
| Court | Georgia Supreme Court |
Carol V. Clark, Carol Clark Law, Atlanta, for Appellant.
James F. Cook, Jr., Goodman McGuffey Lindsey & Johnson LLP, Henry Milton Quillian, III, Fellows, Johnson & Labriola, LLP, Brian Wade Johnson, Drew Eckl & Farnham, LLP, Robert N. Godfrey, City of Atlanta Law Department, Matthew David Gansereit, Allen, Kopet & Boyd, PLLC, J. William Haley, Buker, Jones, Morton & Haley, P.C., James Alan Langlais, Alston & Bird, LLP, Lee Doyle, Atlanta, for Appellee.
This dispute involves the rights and duties of property owners and the City of Atlanta ("City") with respect to an underground drainage pipe. The underground pipe traverses several lots, including lots owned by John and Melissa Merlino and Jeff and Leigh Juliano. The Julianos' property is located two lots directly downhill from the Merlinos' property. Further downhill, the underground pipe eventually empties into the City's sewer system. After the Julianos plugged the pipe at the property line between their own property and the lot that lies between their property and the Merlinos,' the Merlinos experienced a series of floods on their property. The Merlinos then filed an action against the Julianos, the City, and several of their neighbors1 for declaratory judgment regarding the existence of an implied easement that governed the rights of the parties with respect to the pipe, and for nuisance and trespass. The Merlinos also filed a petition for a writ of mandamus in an attempt to force the City to repair, restore, or maintain the underground pipe. The trial court granted summary judgment to both the Julianos and the City on all counts, and the Merlinos appeal. For the reasons that follow, we affirm the grant of summary judgment to the City, but reverse the grant of summary judgment to the Julianos on the Merlinos' claims for nuisance and trespass.
"On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law 34; (Citation and punctuation omitted.) Home Builders Ass'n of Savannah v. Chatham County, 276 Ga. 243, 245(1), 577 S.E.2d 564 (2003); OCGA § 9-11-56(c).
Viewed in the light most favorable to the Merlinos, the record reveals that in 1991, the Merlinos purchased a home in the City. In 1992, they sought a building permit for certain home renovations. The City discovered that the location of the proposed construction was directly above an underground storm-drainage pipe, and denied the permit application. After notifying the Merlinos of the pipe, the City informed the Merlinos that they could still be granted a building permit if they rerouted the pipe outside of the footprint of their proposed home expansion. The Merlinos rerouted the pipe on their own property based on plans drawn up by their own contractors, and added additional inlets to their property that allowed more storm water to drain into the pipe. The Merlinos were granted a building permit, and they completed their home renovation.
In 2001, the Julianos purchased a home two lots downhill from the Merlinos. The survey conducted by the previous owner, the survey done by the Julianos, and the title search done by the Julianos did not show the existence of an easement for a sanitary sewer line or a storm drain. Unbeknownst to the Julianos, the only record of the pipe was on a map created by the City of Atlanta Technical Services Department in May, 1988, entitled "City of Atlanta, Department of Public Works, Atlanta Drainage Basin Study, Peachtree Creek Basin, Storm Drainage Inventory."2 The Julianos first learned of the underground pipe in June 2002 when, during construction of a home addition, their contractor encountered the pipe sixteen feet below the ground while excavating the backyard. The Julianos ran a camera up the pipe and discovered that the pipe ran from their property to a manhole at the foot of the Merlinos' driveway, and then continued up the street through at least the next three lots. Storm water entered the pipe through inlets located on each of the three lots uphill from the Merlinos' lot and continued through the Merlino and Juliano properties before being deposited in the City's main sewer line.
The Julianos stopped construction and decided to try and reroute the pipe. Mr. Juliano talked with at least three City officials, one of whom informed him that the pipe was not shown as part of the City's sewer lines. The City rejected the Julianos' proposal for a permit to reroute the pipe and informed the Julianos of the City's requirements for rerouting the pipe. Mr. Juliano also talked to Mr. Merlino and Mrs Merlino's father about the pipe issue, and about the actions that the Merlinos had taken with respect to the pipe in 1992. After no agreement could be reached between the Julianos and the Merlinos regarding what should be done about the pipe, the Julianos informed the Merlinos of their intention to plug the pipe. On July 17, 2002, the Julianos plugged the pipe.
On July 18, 2002, Mrs. Merlino reported to the City that the Julianos had plugged the pipe. On July 22, 2002, the City informed Mrs. Merlino that it was going to issue a stop work order on the Julianos' construction and require the Julianos to re-open the pipe because a City inspector believed that a builder could not cap off an underground sewer line. After initially issuing a stop work order on August 1, 2002, the City referred the matter to its Law Department, and then temporarily lifted the stop work order. The Julianos unplugged the pipe on or about August 8, 2002, and installed a temporary vertical pipe that emptied onto their own property. After installing the temporary pipe, however, the Julianos experienced over two feet of flooding in the excavation area of their property. In late October, 2002, the Law Department informed the Julianos that the City did not have an opinion one way or another as to whether the pipe should remain open or be closed. As a result, on October 30, 2002, the Julianos re-plugged the pipe at the property line with the residence immediately uphill from them. Shortly thereafter, the Julianos completed construction of their home addition.
The Merlinos' house flooded in December 2002, and on December 16, 2002, the Merlinos sent Requests to Abate Nuisance pursuant to OCGA § 41-1-5 to the Julianos and ante litem notice to the City. In March 2003 and on May 5, 2003, the Merlinos' home flooded again. By November 20, 2003, the Merlinos' property had flooded at least nine times.3
1. The Merlinos contend that the underground pipe was subject to an easement that gave them water drainage rights through the Julianos' property and governed the Julianos' rights and duties with respect to the pipe. However, there is no evidence of the existence of an easement relating to the underground drainage pipe. Indeed, a bona fide purchaser "without knowledge or constructive notice of the existence of [an] easement [takes] title free from the easement, and he may assume that there is no easement except as shown of record or by open and visible indications on the land itself." Burk v. Tyrrell, 212 Ga. 239, 243(3), 91 S.E.2d 744 (1956). See also The Rome Gas-Light Co. v. Meyerhardt, 61 Ga. 287 (1878). Prior to purchasing their home the Julianos did a title search and had a survey done of their land, neither of which revealed any easements. Moreover, there is no written record of any easement relating to the pipe,4 nor is there anything in the record to show that there were visible indications on the Julianos' premises that would have, in the exercise of ordinary diligence, put them on notice regarding an easement for a drainage pipe running sixteen feet below their backyard.5 See Burk, supra, 212 Ga. at 243(3), 91 S.E.2d 744; The Rome Gas-Light Co., supra, 61 Ga. at 290. Therefore, we affirm the trial court's grant of summary judgment to the Julianos on this claim.
2. The Merlinos argue that because the City owned or maintained dominion or control over the pipe, the City caused a nuisance by allowing the pipe to be plugged. However, there is no evidence that the City...
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