Moore v. Dixon
| Decision Date | 21 November 1994 |
| Docket Number | S94X1128,Nos. S94A1079,s. S94A1079 |
| Citation | 452 S.E.2d 484,264 Ga. 797 |
| Parties | MOORE et al. v. DIXON. DIXON v. MOORE et al. |
| Court | Georgia Supreme Court |
John E. Pirkle, Hinesville, for Moore et al.
John L. Gilmore, Brunswick, for Dixon.
Harlon and Emma Harris are the previous owners of property upon which they operated a mobile home park and a "public water system" as defined in the Georgia Safe Drinking Water Act of 1977 (Act). OCGA § 12-5-172(11). In compliance with the Act, the Harrises had been issued a permit to operate the water system. OCGA § 12-5-179. One of the conditions of the Harrises' permit was
that the water service area will be limited to customers residing or conducting business on property under the permittee's ownership. Should the permittee desire to serve drinking water to customers on property owned by individuals other than the permittee, the permittee shall notify and submit to the [Environmental Protection] Division [ (Division) ] [of the Department of Natural Resources], for review and acceptance prior to service, a legal document guaranteeing continued maintenance and operation of the public water system.
When the Harrises sold a tract of their property to appellant-plaintiffs, the warranty deed given by the Harrises made no mention of a water supply for the tract conveyed to appellants. By a separate written agreement, however, the Harrises did contract to provide appellants water from the system which served the mobile home park. This agreement, which was never recorded, was in violation of the Harrises' permit to operate the water system, since, prior to entering into it, the Harrises had neither notified the Division nor submitted for the Division's review and acceptance a guarantee of continued maintenance and operation of the system.
Subsequently, the Harrises sold their remaining property and mobile home park to appellee-defendant. Prior to the sale, appellee was unaware of the Harrises' agreement with appellants, but, after the sale, she did enter into her own agreement with appellants allowing them to continue to receive water from the system serving the mobile home park. Eventually, appellee obtained in her own name a permit to operate the public water system. Appellee's permit contained the same condition as had the Harrises' with regard to the supply of water to individuals who did not reside in the mobile home park. Appellee nevertheless continued to supply water to appellants without ever satisfying this condition of her permit.
In 1993, a dispute arose and appellee cut off appellants' access to the water system. Appellants brought suit for equitable relief, seeking to restrain appellee from interfering with their access to the water system. Appellee answered, asserting that any agreement affording appellants access to the water system was illegal and unenforceable insofar as such an agreement would be in violation of the Act. In addition, appellee counterclaimed for damages.
Cross-motions for summary judgment were filed as to appellants' main claim for equitable relief. After conducting a hearing, the trial court granted summary judgment in favor of appellee, concluding in its order that appellants' main claim was "frivolous per se," but nevertheless holding that no "damages" would be awarded to appellee. In Case Number S94A1079, appellants appeal and, in Case Number S94X1128, appellee cross appeals.
Although the Harrises are appellants' and appellee's common grantors, there is in the Harrises' deed to appellants no covenant regarding the supply of water to appellants from any source located on the property which the Harrises thereafter sold to appellee. Thus, there was no covenant by the Harrises to supply appellants with water, which covenant would run with the land and bind appellee. Lowry v. Norris Lake Shores Development Corp., 231 Ga. 547, 203 S.E.2d 169 (1974). The original unrecorded agreement between the Harrises and appellants regarding the supply of water was merely a personal contract which would not bind appellee in her capacity as the Harrises' grantee. Compare Atlanta, Knoxville and Northern R. Co. v. McKinney, 124 Ga. 929, 53 S.E. 701 (1906).
Appellants contend that they nevertheless have a right to continued access to the water supply under a quasi-easement theory. However, appellants were never originally granted access to the Harrises' own private water system. Compare Rowland v. Woods, 259 Ga. 832, 388 S.E.2d 684 (1990). The water system was a "public" one which the Harrises legally could operate only by complying with the mandate of the Act. Since, under the Act, the Harrises had no authority to grant appellants legal access to the public water system without prior approval of the Division, it follows that the Harrises had no authority to grant appellants a quasi-easement of access to the public water system without prior approval of the Division. See generally Westbrook v. Comer, 197 Ga. 433, 434(4), 29 S.E.2d 574 (1944).
and mobile home park, appellee entered into her own agreement allowing them to continue to use the system as a source of water.
Legal operation of the "public water system" to which appellants seek access is dependent upon appellee's compliance with the Act. An underlying public policy of the Act is protection of "the health and welfare of all people in the State of Georgia." OCGA § 12-5-171. To effectuate this public policy, the Act imposes a requirement upon appellee to obtain a permit to operate the water system. OCGA § 12-5-179(b). Appellee obtained the requisite permit. It is undisputed, however, that appellee's agreement with appellants, the requisite guarantee for which was never submitted to the Division for review and acceptance, would be in violation of her permit. As a violation of her permit, appellee's agreement with appellants would render her operation of the water system "unlawful" under the Act. OCGA § 12-5-179(a). As the result of her "unlawful" operation of the water system, appellee's permit could be revoked, suspended, or modified. OCGA § 12-5-179(e)(1). In addition, appellee also could incur civil penalties and be found guilty of a misdemeanor. OCGA §§ 12-5-192, 12-5-193.
It follows that the agreement which appellants seek to enforce against appellee is premised upon more than merely incidental illegality. If appellee were required to comply with the agreement, it would be impossible for her to avoid the commission of at least two "illegal" acts. Compare Crooke v. Gilden, 262 Ga. 122, 414 S.E.2d 645 (1992); Shannondoah, Inc. v. Smith, 140 Ga.App. 200, 230 S.E.2d 351 (1976). She would be required to supply water to appellants from a "public water system" without having obtained prior issuance of the necessary permit for her to do so and she also would be required to violate the conditions of the permit which she has been issued.
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