Liberty County v. Eller
327 Ga. App. 770
| Ga. Ct. App. | 2014Background
- In 2001 Liberty County paved Carter Road and installed stormwater infrastructure, including an 18-inch drainage pipe that discharged into a pond on property later purchased by Martha Eller in April 2008.
- Martha purchased the property so her son Adam could excavate borrow pits for dirt sales and convert pits into catfish ponds; Adam observed the drain pipe months after purchase when pond levels dropped.
- Adam cut and attempted to block the pipe to prevent recurrent filling; excavation stopped 2009–2012 and resumed briefly before the property was lost in foreclosure in September 2012.
- The Ellers sued the County for trespass, continuing trespass, nuisance, inverse condemnation, and related damages; some claimed damages (tortious interference, credit impact, emotional damages) were added during litigation.
- County moved for summary judgment arguing sovereign immunity barred most tort claims and that the inverse condemnation/nuisance claim was time‑barred by the four‑year statute of limitations; trial court denied the motion and County appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sovereign immunity bars the Ellers' tort claims (trespass, nuisance, others) | Ellers: County waived immunity if nuisance/trespass amounts to inverse condemnation | County: Sovereign immunity bars tort claims not within constitutional takings/inverse condemnation waiver | Court: Sovereign immunity bars claims that are not nuisance/trespass/inverse condemnation; only inverse‑condemnation/nuisance/trespass rising to a taking can proceed (waiver exists only then) |
| Whether the nuisance/inverse condemnation claim is timely under OCGA § 9‑3‑30(a) (four‑year limit) | Ellers: Although pipe installed in 2001, they first noticed it in 2008; nuisance is continuing so limitations restart with each new injury | County: Installation in 2001 created a permanent nuisance; no evidence of improper maintenance or new harm within four years before suit | Court: Nuisance is permanent (no evidence of improper maintenance); no new, previously unobservable harm within four years of filing; claim is time‑barred |
| Whether evidence showed improper maintenance to support a continuing nuisance | Ellers: Pipe caused repeated flooding and was effectively maintained/operated by County causing ongoing harm | County: No maintenance was performed since installation; no evidence of negligent maintenance | Court: Record shows no maintenance or failure to maintain; no evidence of improper maintenance; therefore not a continuing nuisance |
| Whether other County defenses (easement, no taking) needed resolution | Ellers: Not necessary if immunity/limitations fail; alternatively, claim fails on merits | County: Also argued it obtained an easement and no taking occurred | Court: Declined to reach easement/merits after resolving statute of limitations and immunity issues |
Key Cases Cited
- City of Atlanta v. Kleber, 285 Ga. 413 (Ga. 2009) (distinguishes permanent vs continuing nuisance; maintenance evidence can show continuing nuisance)
- Oglethorpe Power Corp. v. Forrister, 289 Ga. 331 (Ga. 2011) (new, previously unobservable harm within limitations period can revive permanent nuisance claim)
- Stanfield v. Glynn County, 280 Ga. 785 (Ga. 2006) (counties not liable for nuisance unless it amounts to a taking/inverse condemnation)
- Duffield v. DeKalb County, 242 Ga. 432 (Ga. 1978) (constitutional waiver of sovereign immunity where county creates a nuisance amounting to inverse condemnation)
- Benton v. Savannah Airport Comm’n, 241 Ga. App. 536 (Ga. Ct. App. 1999) (inverse condemnation based on trespass/nuisance governed by four‑year statute)
- Morris v. Douglas County Bd. of Health, 274 Ga. 898 (Ga. 2002) (county nuisance liability requires continuous or regularly repetitious acts/conditions)
- Board of Commrs. of Glynn County v. Johnson, 311 Ga. App. 867 (Ga. Ct. App. 2011) (party asserting waiver bears burden to show county waived sovereign immunity)