Gary Greenwald and Denise Greenwald sued their neighbors, Martin Kersh and Jill Kersh, for trespass. The complaint alleged *197 that the grading of and deposit of dirt onto the Kershes’ property had altered the flow of surface water from the Kershes’ land and caused the Greenwalds’ property to flood. The Kershes filed an answer denying the Greenwalds’ claims, and counterclaimed for intentional infliction of emotional distress and loss of consortium. The Greenwalds amended their complaint to add First Magnolia Homes, Inc. and Frank Burns, builders of the Kershes’ home, as additional parties, and to seek damages for nuisance. The Greenwalds filed an additional amended complaint requesting equitable relief under the covenants of the Sugarloaf Country Club subdivision. The Kershes moved for summary judgment on the Greenwalds’ claims. The trial court granted the Kershes’ motion, and the Greenwalds appeal. We reverse for the reasons set forth below.
To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c);
Lau’s Corp. v. Haskins,
The evidence, viewed most favorably to the Greenwalds, shows that the Greenwalds and Kershes own adjacent lots in the Sugarloaf Country Club subdivision in Gwinnett County. The Kershes contracted with First Magnolia to construct a house on their property. Before the construction, surface water on the Greenwald property drained downhill onto the Kershes’ lot and another adjacent lot. In the course of construction of an elevated driveway and a pool, and in landscaping the Kershes’ property, a large amount of dirt was placed on and near the property line between the Kershes’ property and the Greenwalds’ property. The dirt caused surface water which had naturally run down onto the Kershes’ lot from other property to be diverted onto the Greenwalds’ property, flooding it. Although the Greenwalds made a written demand for correction of the nuisance, the Kershes denied that they had any responsibility for remedying the nuisance.
1. For purposes of their motion for summary judgment only, the Kershes admit that a nuisance exists and a trespass occurred. “Although property must accept the natural runoff of water from neighboring lands, an artificial increase or concentration of water discharge may give rise to a cause of action.”
Baumann v. Snider,
*198 The issue is whether the Kershes may be held responsible for the nuisance and trespass. The Kershes contend that they are entitled to summary judgment because they did not control or direct the construction work leading to the creation of the nuisance. The Greenwalds argue that the Kershes may be held liable for the nuisance because issues of material fact remain as to whether the Kershes ratified the work of their contractor, maintained the nuisance, and violated the restrictive covenants applicable to their property. We agree with the Greenwalds.
Independent Contractor.
The Kershes are not necessarily responsible for the alleged nuisance because they are the property owners. “Under Georgia law, in order to be held liable for nuisance, ownership of land by the tortfeasor is not an element, but control is; the essential element of nuisance is control over the cause of the harm. The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.” (Citation and punctuation omitted.)
Sumitomo Corp. of America v. Deal,
Where the independent contractor, and not the owner, is “responsible for all construction, means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the contract,” then an employee injured on the construction site cannot hold the owner liable for the negligence of the independent contractor, so long as the owner has not assumed responsibility for the manner in which the work was done.
Modlin v. Swift Textiles,
The flaw in the Kershes’ position is that there is evidence that they accepted the work of the independent contractor and were on notice that the work constituted a nuisance. OCGA § 51-2-5 (6) provides: “An employer is liable for the negligence of a contractor: . . . (6) If the employer ratifies the unauthorized wrong of the independent contractor.”
In
Louisville &c. R. Co. v. Hughes,
if the defendant accepted the work so constructed by the independent contractor as to amount to a nuisance, the defendant became at once responsible for the existence of the nuisance, under a rule very similar to that which makes a principal responsible for unauthorized wrongs committed by his agent by ratifying them.
Id. at 207.
Chipley v. Beeler,
The general rule is that ratification of the act of the independent
*200
contractor also requires knowledge of the act.
Wilmock, Inc.,
supra,
Atlanta &c. R. Co. v. Kimberly, 87
Ga. 161 (
It is not shown when the company accepted the road from the contractor. The evidence does show that the work near the plaintiff’s house was done either in March, April or May, and that about the 1st of June the plaintiff and his wife became sick. But under the contract the road was not to be turned over to the company until several months after this. The company not being in possession of the road at the time the plaintiff received the injury from the nuisance, and there being no evidence to show that it knew there was a nuisance, it cannot be said that the company ratified any act of its contractor which created a nuisance.
Kimberly,
supra,
*201
Here, the Kershes were on notice that ongoing construction on the Kershes’ property was damaging the Greenwalds’ property and could constitute a nuisance. Evidence shows that after the Kershes moved into their home, the Greenwalds met with the Kershes and told them of their concerns about the mound of dirt near the property line, but that, according to Denise Greenwald, “[w]e waited another month and realized this dirt was not being moved, our yard was being flooded and there was now a pool on top of the dirt which was being completed.” Martin Kersh admitted that the Greenwalds made numerous complaints during construction and he knew that the Greenwalds always had a “drainage concern.” See
Wilmock, Inc.,
supra,
We conclude that a jury could find that the Kershes ratified the tortious acts of their independent contractor in creating a nuisance. It follows that the trial court erred in granting summary judgment to the Kershes on the Greenwalds’ claims of trespass and nuisance.
Maintenance of a nuisance.
In order to show liability, the “tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.” (Citation and punctuation omitted.)
Sumitomo Corp.,
supra,
The Kershes argue they cannot be held liable for maintaining a nuisance that cannot be practically abated without removal of their house and pool. See
Goode v. Mountain Lake Investments,
*202 Restrictive Covenants. The Greenwalds contend that they are entitled to relief based on the Kershes’ violation of the restrictive covenants of the Sugarloaf Country Club applicable to the Kershes’ property and enforceable by the Greenwalds. Again, we agree.
The owner and developer of the Sugarloaf Country Club subdivision, which includes the Greenwalds’ property and the Kershes’ property, instituted a Master Declaration of Residential Covenants, Conditions and Restrictions for the subdivision. The restrictive covenants are expressly enforceable by property owners within the subdivision. See
Roth v. Connor,
Section 10.10 of the restrictive covenants applicable to the Kershes’ property provides that the original owner of the subdivision has reserved “a non-exclusive easement and right-of-way over, under and along ... a 10-foot strip of land adjacent to the front, side and rear boundary lines of all Lots within the Property.” With respect to the property subject to the easement, Section 10.12 of the restrictive covenants provides “no structures, plantings or other material shall be placed or permitted to remain upon such areas or other activities undertaken thereon . . . which may retard, obstruct or reverse the flow of water or which may damage or interfere with established slope ratios or create erosion problems.” 1
Evidence shows that fill dirt was placed on behalf of the Kershes and to the benefit of their property on the property line between the Kershes’ land and the Greenwalds’ land, and that the dirt interfered with the flow of water, which is in violation of Section 10.12 of the restrictive covenants. Inasmuch as material issues of fact remain as to whether the Kershes violated the restrictive covenants applicable to their land, the trial court erred in granting summary judgment to the Kershes on the Greenwalds’ action to enforce the restrictive covenants.
2. The Greenwalds also claim that the trial court erred in granting summary judgment to the Kershes because the trial court (i) refused to strike certain affidavits, (ii) discovery remained outstanding, and (iii) the Kershes failed to file the deposition of one of the Greenwalds’ experts. In view of our ruling in Division 1 above, these enumerations of error are moot and we need not consider them. See
*203
Etheredge v. Kersey,
Judgment reversed.
Notes
Although the Greenwalds do not specifically cite to Section 10.12 of the restrictive covenants until their reply brief, they did argue that the Kershes’ acts violated the easement requirements associated with each lot in their initial appellate brief and in their brief to the trial court.