Rouse v. City of Atlanta

• Citation: 353 Ga.App. 542,839 S.E.2d 8
• Decision Date: 10 February 2020
• Docket Number: A19A1737
• Parties: ROUSE v. CITY OF ATLANTA.
• Court: United States Court of Appeals (Georgia)

353 Ga.App. 542

839 S.E.2d 8

ROUSE

v. CITY OF ATLANTA.

A19A1737

Court of Appeals of Georgia.

February 10, 2020

Blum & Campbell, James P. Blum, Jr., for appellant. Lewis Brisbois Bisgaard & Smith, Jason P. Wright, Donavan K. Eason, for appellee.

Miller , Presiding Judge.

This appeal involves Ivan Rouse’s lawsuit against the City of Atlanta ("the City"), after a sewage pipe was discovered beneath his property which drastically reduced the value of his property and subjected it to demolition. Rouse appeals from the trial court’s order granting the City’s motion for summary judgment and denying his motion for summary judgment. Rouse argues that the trial court erred because (1) the facts failed to show that the portion of his property traversed by a sewage pipe had been dedicated to the City; and (2) the facts of the case showed that he was entitled to summary judgment on his trespass, nuisance, and inverse condemnation claims. For the reasons that follow, we reverse the trial court’s order granting the City’s motion for summary judgment, but we affirm the trial court’s order denying Rouse’s motion for summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We use a de novo standard of review on appeal from a grant [or denial] of summary judgment, and view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant. In applying this standard to the facts of this case, we must bear in mind that questions of dedication and acceptance should ordinarily be resolved by a jury.

(Citation omitted.) Kaplan v. City of Sandy Springs , 286 Ga. 559, 560 (1), 690 S.E.2d 395 (2010).

So viewed, the record shows that on November 14, 2012, Rouse purchased property on Connally Street in Atlanta, which included a residential home that was built in 2004. At the time Rouse purchased the property, there were no visible signs that an underground sewage pipe traversed the property. In the chain of title to Rouse’s property, there was no recorded easement in favor of the City for a sewage pipe, and the property’s title commitments also did not reveal the presence of a sewage pipe. A survey of the property, however, cautioned that the survey did not address matters such as easements, underground utilities, and structures that may burden the property.

In 2017, Rouse contracted to sell the property for $380,000 and scheduled the closing for the property in April 2017. During the closing process, the prospective buyer discovered an 84-inch by 60-inch egg-shaped pipe between 17 and 30 feet below Rouse’s property that the City was using. According to Rouse, the sewage pipe, which was potentially decomposed, had rendered the property unmarketable and posed significant structural danger to the residence on the property. Rouse contacted the City about the sewage pipe, but they were unable to resolve their dispute concerning the sewage pipe, and the contract for the sale of the property was terminated. Additionally, the discovery of the sewage pipe decreased the value of the property from $380,000 to $10,000 because zoning regulations for the City do not permit development above sewer lines. As a result, Rouse’s residence may therefore be subject to razing.

Rouse filed the instant action against the City, asserting claims for trespass, nuisance, and taking and inverse condemnation, and he also requested special damages and attorney fees under OCGA § 13-6-11. Rouse subsequently filed a motion for summary judgment, arguing that there was no easement in the chain of title to permit the sewage pipe to traverse his property, that the facts of the case did not give rise to a prescriptive easement or dedication, and, alternatively, that he should be awarded compensation for the taking of his property. The City also filed a motion for summary judgment, arguing that the City had continuously inspected, maintained, and repaired the sewage pipe below Rouse’s property since 1896 and thus the portion of Rouse’s land traversed by the sewage pipe had been impliedly dedicated to the City. The trial court granted the City’s motion for summary judgment and denied Rouse’s motion for summary judgment. This appeal followed.

1. First, Rouse argues that the trial court erred by granting the City’s motion for summary judgment because the facts failed to show that the portion of his property traversed by the sewage pipe had been dedicated to the City. We agree.

"Dedication is the setting aside of land by the owner for a public use." Lowry v. Rosenfeld , 213 Ga. 60, 63 (1) , 96 S.E.2d 581 (1957) . OCGA § 44-5-230 provides:

After an owner dedicates land to public use either expressly or by his actions and the land is used by the public for such a length of time that accommodation of the public or private rights may be materially affected by interruption of the right to use such land, the owner may not afterwards appropriate the land to private purposes.

"To prove a dedication of land to public use, there must be an offer, either express or implied, by the owner of the land, and an acceptance, either express or implied, by the appropriate public authorities or by the general public." (Citation and punctuation omitted.) Kaplan , supra, 286 Ga. at 560 (2), 690 S.E.2d 395 . Where a dedication has been established, the "dedication for such purpose is, of course, binding on the plaintiff as a privy in title of the dedicator." Lowry , supra, 213 Ga. at 63 (1), 96 S.E.2d 581 .

Intention to dedicate to public use need not be shown by express declaration and may even be inferred from the owner’s acquiescence in the use of the property by the public, but a dedication is not complete until both the intention to dedicate and acceptance by the public are shown. ...

Johnson & Harber Constr. Co. v. Bing , 220 Ga. App. 179, 182 (2), 469 S.E.2d 697 (1996). See also Postnieks v. Chick-fil-A, 285 Ga. App. 724, 728 (2), 647 S.E.2d 281 (2007) ("There is no particular form of making a dedication. It may be done in writing, or by parol; or it may be inferred from the owner’s acts, or implied, in certain cases, from long use.") (citation and punctuation omitted). "Acceptance of a dedication may be shown by any act of a governmental entity treating a structure as its own." (Citation and punctuation omitted.) Kaplan , supra, 286 Ga. at 561 ( 3 ) , 690 S.E.2d 395 . See also Teague v. City of Canton , 267 Ga. 679, 681 (3), 482 S.E.2d 237 (1997) ("While working or maintaining the property by the legally constituted authority is the usual method of manifesting acceptance by the governmental entity, it is the government’s exercise of dominion and control of the subject of the express offer of dedication which indicates acceptance of the dedication."). "The burden is on the party who relies on a dedication to prove the nature, boundaries and extent of the dedication." Cobb County v. Crew , 267 Ga. 525, 528 (1), 481 S.E.2d 806 (1997).

Here, the record shows that the sewage pipe, which is located 17 feet below the surface of Rouse’s property, was constructed in the late 1800s and is actively being used by the City as part of the Connally Street trunk system. The record is unclear, however, whether the property owner at the time of the construction constructed the pipe on the property for his or her own use or gave the City permission to construct the pipe for its use, and there is no recorded easement in favor of the City for the sewage pipe in the chain of title to Rouse’s property. Moreover, although the City argues that the prior owner offered the land for the City’s use, there is nothing in the record showing even an inferred intent by the prior owner to offer the land to the City. Indeed, the City conceded below and admits in its brief to this Court that it is unknown whether the property owner constructed the pipe on the property or allowed the City to construct the pipe on the property. Additionally, the only evidence in the record purportedly showing the City’s exercise of dominion and control over the sewage pipe is a single inspection of the pipe which was conducted in 2011.

Consequently, we conclude that the City has not met its burden of showing that the land traversed by the sewage pipe had been dedicated to the City. Although the City is actively using the sewage pipe, "[w]hen ... an implied dedication is claimed, the facts relied upon must be such as to clearly indicate a purpose on the part of the owner to abandon his personal dominion over the property and to devote it to a definite public use." (Citation and punctuation omitted; emphasis supplied.) MDC Blackshear, LLC v. Littell , 273 Ga. 169, 170 (1), 537 S.E.2d 356 (2000). See also Lines v. State of Ga ., 245 Ga. 390, 396 (7), 264 S.E.2d 891 (1980) ("The mere use of one’s property by a small portion of the public, even for an extended period of time, will not amount to a dedication of the property to a public use. ...") (citations and punctuation omitted); Johnson & Harber Constr. Co. , supra, 220 Ga. App. at 182 (2), 469 S.E.2d 697 ("[A] dedication is not complete until both the intention to dedicate and acceptance by the public are shown."). Additionally, to the extent that the City argues that the prior owner acquiesced to the City’s use of the pipe, there is no evidence in the record to support this contention.

The City argues that it accepted a supposed offer to dedicate because it inspected the pipe in 2011 and added cementitious lining to the pipe. These arguments, however, are unavailing. Even assuming the existence of such an offer, the City’s single inspection of the pipe in the pipe’s 100-year existence is insufficient to show acceptance of the offer to dedicate. See Kaplan , supra, 286 Ga. at 561 ( 3 ) , 690 S.E.2d 395 (holding that the municipality’s actions of investigating and photographing a drainage pipe failed to show an exercise of dominion and control over the pipe which...