*1 premises naturally However, ring part, where ice accumulated on is occur- proprietor’s and not attributable to affirmative action on the proprietor duty has no to and affirmative discover remove it by it the absence evidence that had become an hazard obvious Speaks &c., means other than the natural accumulation. Co. v.Rouse (321 774) (1984); Padgett, 10-11 SE2d Auerbach v. App. 79, There is no evidence Thompson’s that the ice fall which caused had become such an obvi- hospital duty circumstances, hazard. Under ous had no inspect premises naturally occurring find remove the invisible ice that caused the fall.
Accordingly, hospital there was no basis to conclude that the had knowledge actual constructive ice hazard which caused Thompson’s greater hospital’s knowledge fall. Since the of the hazard was no Thompson’s, hospital summary judg-
than was entitled to supra; Speaks, supra; McIntyre Corporate Property Fisher, ment. 584) (1982); supra. Investors, Auerbach, Judgment Pope, J., Smith, J., reversed. P. concur. 4, 1997 February Decided February
Reconsideration denied Tisinger, Tisinger, appellant. Greer, & Buice, Vance B. Kevin for Denney, Denney, Pease, Kirk, Allison & John W. Elizabeth S. Morgan, appellees. for
A96A2123. HAMMOND v. CITY OF WARNER ROBINS. Judge. Eldridge, Appellant brought against an action of Warner Robins trespass, in nuisance, and inverse condemnation. From 1972 until operated sanitary 1976, Warner Robins landfill. layer ground covering
There exists a three-foot of soil as a for the layer, garbage depth landfill; beneath this household from a exists thirty three feet. sanitary organic
Most landfills waste, contain such as household garbage, decays decay which with time. The rate of varies time by represented at a rate which can However, be a bell curve. since uniformity depth there exists no in content of the landfill or time and deposit, decay multiple of a waste then there exist rates represented overlapping layer would waste. bell curves each decay, produces air, Anaerobic the absence of and water. compound organic that is odorless, colorless, an
Methane tendency migrate lighter environ- to an it air so that has a than vertically pressure. If under less ventilated ment where will be atmosphere. dissipate into the surface, methane will soil; it will resistance seeks the course least Methane migrate clay cap through decaying vertically waste if there exists *2 laterally migrate conditions, normal under as depending upon or will a barrier gen- composition geological the soil. Methane the buildup pressure that, increase the or water saturation can eration clay, impervious along condition, can cause a as an soil such with gas along porous soil. Meth- and movement of the lateral downward gas soil, rocks, or areas the cracks will collect voids in ane ground spaces. the surface structures, such as crawl When beneath through ground gas seep the can out of cracks, and methane dries out laterally gravel, opening. gas silt, sand, can move such escape atmosphere. seeking geological the This faults, to to and along groundwater tables, that methane can move above means because the soil is enough porous flow; to water collection allow droughts, during falls, these become level voids when water gas allowing gas. empty, methane invasion of methane When ppm, greater, percentage 50,000 or At five is concentrations reach ignited. higher gas explosive concentrations, it can if becomes vegetation escaping health; near methane often be harmful human gas dies. cleaning organic chemicals, such as
Landfills often contain other paint paint, fluids, remover, solvents, which and industrial gases. Many ground decompose organic settle into water or into carcinogenic, organic compounds tissue, these are either toxic to both.
Springwood after it Subdivision was built next landfill boundary in 1976. lots line of the land- closed Some abutted east higher fill, at a than the subdivision. Since the which exists elevation higher depth feet, sits at a and extends to a of 30 landfill elevation the bottom the landfill lies close table in the subdivision. the level water Appellant bought her in the at 102 house subdivision Prado parallel $80,000. side Court in 1985 for Prado Court lies the east Appel- approximately away landfill, feet from the landfill. property approximately east of landfill across lant’s Court, Prado Court. Mr. Holt’s Prado lies between appellant.1 from landfill, Prado Court and the across subject suit, City Mr. Holt’s a similar Warner Robins Appellant approxi- in the at 102 Prado Court for lived house mately year marriage, prior out. one when she moved She has sought leased out the ever since. to refi- property loan, nance the but the lender declined to make the loan gas. rejection, appel- because of the of methane loan risk From this potential problem. then, lant first learned of the Since she refinancing has been unable to sell the While has been a problem, dispute a factual exists to whether can be refinanced not. (Mr. prop-
Methane was detected at 103 Prado Court Holt’s by erty) Georgia Department Resources, Natural Environmen- Division, tal Protection but the not found at 102 Prado by engineers gas city Court. Tests conducted retained have been appellant’s property, unable to find methane but the hole test depth went of two and one-half feet. testing, engaged
After of Warner Robins in a methane program along Springwood abatement Drive; Prado Court and drainage swale was constructed a 12-foot trench bottom clay passive filled with barrier; to form a vents to a depth of 15 feet were installed and a line monitor holes dug along depth. *3 Prado Court to same joined
Appellant litigants with three other in the subdivision to pay deep $16,000 for Court, test wells to drilled at 103 Prado Mr. Holt’s feet below the water table. Such wells went five depth table, below water to a of between 35 and 40 feet. Tests depths high gas at these showed concentrations of methane where very provided good the soil was either moist silt or moist sand that a porous migration. soil condition for lateral The well at test MW-3was approximately 130 feet from 102 Prado Court and was the closest report gas well to this The address. showed test results methane present ppm parts per (ppm): present gas feet; million at 5 and 10 4 ppm ppm feet; 8,990
at feet; 15 at 20 10,000 and more than at 25 through 35 feet. The water table was at determined lie at MW-1 feet; 36.86 at at feet; MW-2 33.53 at at feet; MW-3 29.47 and at MW- 4 at 32.67 feet.
Appellant’s expert, Huggins, interpreted Dr. Ronald the test gas migrated results to show that methane had from landfill porous high zone of soil at and above the water table in Huggins’ opinion, gas migrated concentrations. In Dr. the methane beyond along test wells the course of least resistance and under appellant’s property. high The existence concentrations of methane gas presented only physical potential but hazard also health although Huggins hazard, Dr. admitted on cross-examination that the not levels methane found at 102 Prado Court June 1994 were
physically dangerous presence posed time, but that its
687 by methodology employed testing opined also that risk. He health Warner deep experts that not drill deficient in it did Robins’ passive enough, vents, barrier, methane and monitor and that migrate gas depth methane 15 or less allowed at a holes He concluded without detection. these installations underneath gas the landfill. came from Hodges, expert, Appellee’s that, in his in contradiction Mr. stated opinion, either 103 Prado Court was detected at by decay by from the subdivision caused such materials construction debris migrate providing pathway from for methane opinion, highly improbable meth- landfill. In his it would be migrate Mr. Prado from the landfill 102 Court. ane could Hug- problem methodology Hodges used Dr. also had a appellant’s property by appel- gins. on However, the test done experts depth at a two and one-half feet. lee’s
During May liti- the three other and June of actually gants spent property on own $16,000 to drill test wells their another presence provide meth- evidence of the subsoil direct OW-4 landfill. The test wells at OW-2 and were ane from the appellant’s Court, lines of 102 Prado the north and south report 1994 showed methane concentra- June test (in million) parts per depths: at the tions test Type Depth Type in feet Soil clay Soil clay ppm ppm 3 to 5 8 to 10 10 15 ppm ppm
silt 25 silt ppm 15 18 12 12 13 to 18 to 20 silt silt silt silt ppm ppm ppm 8 ppm ppm very 20 to 25 moist silt silt ppm 30 to 35 moist moist 28 to moist silt silt ppm ppm very N/A sand clay 38 to 40 N/A moist organic gases addition, found, measurable amounts of other including: tetrachloroethane; tridecane; dichlorodifluoromethane; *4 methylene 10-methyl-; styrene. chloroform; eicosane, chloride; and Appellant’s appraiser gave appraisal real estate an that the property $82,000 value, an fair but that it dis- had market should be percent contamination counted 40 to reflect the effect of on the mar- Appel- price, $48,840. the ket so that actual fair market value was expert agreed fair value lee’s real estate market without percent figure. questioned discount, of and the use summary appellee’s initial The trial court denied motion judgment; summary judgment upon a motion for before renewed granted. judge, the motion senior Appellant’s
1. first enumeration of error is that trial court damage finding physical in and erred that invasion were necessary support a claim nuisance.
Appellee’s expert witnesses testified that methane and other compounds organic stopped by passive clay barrier on 103 highly Court, that, barriers, Prado and because of such it was improbable migrate that could from the methane landfill under- (Mr. property), Prado across 103 Court Holt’s cross Prado clay upon appellant’s prop- Court, base, which was built and invade erty at 102 Prado Court. appellant’s deep expert dug
However, test wells below the water porous layer table on Court 103 Prado and found methane in the depth of soil above water table of 20 to 30 feet. He testified opinion, migrate that, in his would continue to the addi- approximate appellant’s property tional distance of passing passive only depth under the barrier extended 15 feet. May finally
In and June of when test wells were drilled at (appellant’s property) depth 102 Prado Court at a feet, to 30 gas, organic gases, was found that had, as well as other appellant’s property fact, invaded and were detectable between both the north and south lines above the water table. This meant gases porous such had invaded the entire extending upward through silty layer. area or zone In fact, soil clay trace amounts were detectable three to five feet below the ground. surface of the opposing party’s challenge experts
While each of the the method- ology question damages and test results of the other and the extent of resulting organic gases from such invasion of methane and other landfill, from the but also raise such conflicts not fact, raise material issues weight credibility issues of the evidence and expert opinions. legal presented issue is whether the subsurface contamina organic compounds
tion soil with methane man-made upon trace amounts constitutes a nuisance which an action for dam ‘ “ ages can situations, be based. “Under some factual it can be held question as a matter of however, law that no exists; nuisance (Cits.)’ ordinarily jury.” City [Cit.]” ais for the Grier v. 794) (1991), App. citing Atlanta, 200 Ga. Whid O’Neal, v. don already Court, This facts, on almost identical found that a jury permanent damages issue of nuisance and arises. Warner Holt, Robins directly Court, involved 103 Prado which lies across the appellant’s property street from had nearest test well *5 higher away; approximately levels of methane 130 feet the test expert Holt, and the witness the landfill the abutted and expert. appellant’s plaintiff Therefore, the dif- in Holt is also the for methane and other cases lie in the level of between the two ferences gas organic of or not sub- invasion, not on the whether give held nuisance, because Holt rise to contamination can surface concerning jury presented there whether “the issue that evidence permanent or Id. and, if abatable.” so, whether it was was a gases ability to other of methane and The evidence shows the despite migrate Holt efforts, across the landfill, from the abatement property; physically appellant’s the invade and the street to gases appellant’s prop- on of the methane and other measurements testimony expert erty location; the shows have varied with time and by output increase, the landfill can that the of methane appellant’s on also the of measurable methane could property cause levels safety increase hazard levels. to increase and which could to to or the or could increase Whether will increase jury safety questions levels the future are for hazard foreseeable upon testimony. expert jury If determines determination based unlikely or is to the increase invasion of methane is de minimis jury future, the actual the then would determine what fair effect level methane would have the market value property; however, level at time of trial has the substantially if the methane the by jury
increased found the have a future likeli- or is increasing, jury hood of then the determine what effect that would trial, At level of methane would have on fair market value. jury permanent must is or determine whether nuisance abatable. light highly unlikely appears Holt, that the methane and passage prior other can abated of time since the because subsequent and the abatement efforts were undertaken appellant’s property, levels on nuisance is but the determination of whether the
permanent jury abatable be a matter for the would damages proper decide. “What measure of recover- constitutes by by damaged upon able owner real a nuisance turns permanent the issue of the nuisance is If whether abatable. damages permanent, is nuisance the measure of is diminution abatable, If the is fair market value nuisance damages long is the nui- measure the lost rental value for so supra § 41- sance is Under allowed continue.” 796. OCGA “special damages,” § 41-1-4, 1-3 or if an individual has then the indi- although right If vidual has a of action. a nuisance is found to exist damage property interest, there been de minimis damages “annoyance for caused seek and discomfort” such nuisance as a result of the maintenance of nuisance. (5) (76 Shepherd Vaughn, App. Co. Ga. Constr. v. 647) (1953); Finley Incorporated Russell, Sam v. 452) (1947); see also Co. Central Ga. Power v. (1913); Broyles, Parker, 141 SE Ga. 198 Swift 277) (1902). Damages annoyance sepa- SE for discomfort and are damages damage realty. rate and distinct from Atlanta Murphy, v. damages measure of unhappiness, annoyance discomfort, in (4). *6 enlightened jury. supra (3), at conscience 797-798
Stigma realty, speculative itself, to in and of is too remote and to damage impression; be a and is of in first the closest area tort comes analogous § 51-9-11, title, under OCGA slander to which is to a stigma. stigma may physical A arise when there exists a minimal through nuisance, invasion hazard to health or which would not rise to level of actual
safety, and which cannot be abated or negative property public perception, a abated has effect on the i.e., Special there is a effect demonstrable on the fair market value. dam- ages proximately flowing from such nuisance must be shown. See (45 (1) 197) Copeland Carpenter, (1947); v. 18, 203 Ga. 19 SE2d (93 82) 87) (1989). Maryland (1917); v. Co., 151, Schoen Cas. SE Ga. (381 (2) Johnson, v. 70, Daniels Ga. 73 the SE2d Inability realty refinancing to obtain loans or not does constitute special damage. Bldg. App. App. a v. Materials, Hicks McLain’s 209 Ga. 114) (1993); Cunard, SE2d Harmon v. 190 Ga. (378 litigation including attorney SE2d Costs of special damages. supra fees do not Hicks, constitute at 192. In Har- supra, appellant alleged prevented mon, “that the lien her from obtaining necessary complete prevented funds her house and her selling offering specific figures house, from her without for the dam- age allegedly judice, appellant Id. suffered.” at 20. In the case sub produced some evidence as the value before nuisance was opinion discovered as well as some evidence as to the value after the provide discovered, nuisance which would the measure dam- ages jury damages, any. to determine if Thus, even if at trial prove anything fails to be able to more than dam- dam- nominal ages ages realty right interests, she has a to seek the above jury.
from
Supreme
disapproved
holding
Court has
in Austin v.
(34
852)
Augusta
(1899), defining
Co.,
Terminal R.
damages, which would jury governmental entity determination. Where a causes dam- age carrying governmental function, out a such inva- private sion of an individual’s interest would not be a nuisance but would also anbe inverse condemnation of the permanently temporarily. supra either Duffield, at 432-434. *7 appears municipality While it unfair for a to be liable to subse- quent adjacent property any pre-existing owners for nuisance to acquiring property, continuing their injures tort, the nuisance is a day existence,
them anew each of its and to the extent that it damage is a interests, action, such would in chose assignable, pass §§ which would in 44-12- successors title. OCGA App. 20; 44-12-22; 44-12-24; Keith, 117, McLanahan v. 135 Ga. 119 420) (1975). supra, SE2d Under the facts of Duffield, both supra, preceded prop- ownership the nuisance of each erty owner. judice, trapped very body
In the case sub is into the merely moving prop- and is not across the surface of the erty, upon physical wind, based direction of the so that it a is finding partial invasion of the so that a of a condemnation precedent recovery, although appellant is not a does, condition taking by fact, contend that there has been such inverse condemna- (426 Light App. In Co., tion. v.Atlanta Gas 206 Ga. Hoffman 387) (1992), ‘damages “[t]he growing SE2d (the) this Court held that out of continuing [is] ‘hurt, nuisance’ . . inconvenience, . or dam- age’ hydrocarbon § contamination, caused 41- for which OCGA gives .,” a cause of action . . and treated the contamination as a physical hydrocarbon Here, invasion of the awas liquid, instead of a which nonetheless has contaminated soil trapped within which it is and continues to infiltrate. summary judgment, the is on the
On motion for burden movant plaintiffs of an element of and to claim, establish absence favorably evidence, non-movant, show that the viewed most judgment Corp. Haskins, warrants as a matter of Lau’s v. law. (405 474) (1991). judice, Ga. 491 SE2d the case sub there is con- flicting regarding summary evidence of a the elements judgment should be denied. opinion opposition summary
Further, evidence in to a motion for judgment summary preclude grant judgment. can be sufficient to (397 Exterminating App. Co., Barlow v. Orkin SE2d (385 (1990), citing Brygider Atkinson, v. 95) (1989); Properties SE2d & see also Davidson Mineral v. Gifford-Hill 133) (1975). judice, In the case sub expert opinion evidence conflicts not as to the existence of a damages. expert opinion nuisance, but also as to When movant’s summary judgment contradicted, been should be denied. Haire v. Macon, 200 Ga. grant summary judgment The trial court erred in the on the issue of the existence of a nuisance under the facts of this case.
2. The second enumeration of error is that the trial court erred in dismissing appellant’s claim for inverse condemnation. Where physical temporarily there has invasion, been a either or continu- ously, person by governmental entity of a damage, property rights may give causes such invasion of the rise to compensation paid inverse condemnation where no has first been governmental damage. County, supra; such v. DeKalb Duffield County Baranan, Fulton Gen- erally, physical liquids, such invasion is either in the form of solids or may gases. physical property gases but also be in the form of gases equalize that, confined, such if diffuse all directions to pressure; gases lighter rapidly dissipate that are than air will or upward atmosphere, gases move into the but that are heavier than pool slowly laterally air will on the surface and diffuse like water. lighter danger by being Gases that are than air cause noxious explosive, causing damage depending odor, corrosive, toxic, they transitory whether gases are invasion; continuous such *8 subject may delay are rain, to wind and accelerate or property. gases movement of the contrast, over the that are liquid heavier than air will move like a at or above surface of the away by until the has diffused or been blown wind or recognition rain. It inis of that smoke, fact that odor or as well as gases, may, depending upon more harmful the facts and circum- public taking through stances, constitute inverse condemnation. supra. give See Duffield, not, however, The constitution “does these power damage property taking. authorities the without a The ‘damage’ gives injured clause citizen a constitutional cause of against authority public injury action for to his interests ” regardless ‘taking.’ Trussell, of whether there is also a MARTA v. 859) (1981). private property Where damaged negligently public purposes, has been tutional for under the consti-
provisions for eminent domain the owner can damages. County, recover for such Woodside v. Fulton judice, presence gases In the case sub there is not a surface moving which are across the surface but an actual appellant’s property, gases subsurface invasion of so that the diffuse throughout trapped the soil and become faults, voids, or fis- trapped gases sures in the circumstances, Under such present liquid. invasion which is similar to a solid or damage presents jury nature and extent of a factual (2). supra party determination. See at 796 A is entitled to one complete recovery damages; for their therefore, if the temporary permanent recovers for a then there could be recovery theory no additional under the condemnation; inverse of. conversely, recovery theory if there is a full under the of inverse con- recovery per- demnation, then there can be no for nuisance. Since the damages mitted recovery broader, under nuisance are then there can be no damages,
under both theories for the same but could abe recovery theory damages. under each for different only
For the reasons set forth not in Division 1 herein, but also dismissing granting summary the trial court erred in the claim or in judgment.
Judgment McMurray, Birdsong, Pope J., J., J., reversed. P. P. P. Smith, JJ., Johnson and Andrews, J., concur. J., C. Ruffin, con- judgment only. Beasley, cur in the J., dissents. Judge, dissenting.
Beasley, anything “A nuisance is hurt, inconvenience, that causes or dam age another, and the fact that the act done otherwise be law keep being ful shall not it from a nuisance. The inconvenience com plained fanciful, of shall not be or such as would affect one of ordinary, taste, fastidious but it shall be such as would affect an recognized § “[t]he reasonable man.” OCGA 41-1-1. We have private classic definition of a nuisance is such conduct as constitutes plaintiff’s an unreasonable interference with the interest in the use enjoyment Aggregate of his land.” Barrow v. Ga. &c. (4) (1961), disapproved as to another (B) (386 proposition, Littleton, OB-GYNAssoc. &c. v. SE2d sance,” 87, Keeton, See also Prosser & Torts, The Law of “Nui pp. § 619, 622; § Law, 2d, Restatement of the Torts 82ID. *9 694 construing provision, not intended this Code which is Supreme
change nuisance,2 Court definition of the common-law nuisance, a “there must be the held that in to constitute order dangerous regular on a continuous or of a condition maintenance inadequate period time in which no action or action is basis over a knowledge (Emphasis in to correct the condition after thereof.” taken original.) City Gunnells, 810 Bowman v. 782) (1979). Supreme recognized Although the Court in that case complained-of that condition constitutes nuisance is whether ordinarily fact, “under some factual situations it can be nuisance exists.” Id. at 811. Gunnells held as a matter of law situations, and Mrs. Hammond’s case is another. was one of those The municipality granting summary judgment superior to the court did not err complaint, on her second restated amended as asserted appeal. on city emanating landfill and the methane which Mrs. alleges right enjoyment
Hammond interfered her to use and with neighbor her house was were involved in the suit of her Holt. His adjacent prop- to the landfill and there was evidence his erty dangerous landfill, contained levels of methane from the rendering or, corrected, unmarketable; if then uninhabitable jury’s finding permanent upheld. of a nuisance was thus Holt, Warner Robins Ga. Mrs. diagonally house, Holt’s, Hammond’s located across the street from actually uninhabitable and was rented for the entire time in escalating here, issue with somewhat rent. Her is not founded case contrary major- identical “almost facts” as of Mr. to the ity’s analysis. difficulty refinancing
Mrs. Hammond encountered the house problems in 1988. The lender refused because of the methane neighbors’ inability city engineer guar- houses and the antee that there would be no methane on Mrs. Hammond’s years. proposed loan, the life for 15 time, No methane had been detected on her at that and no methane has been despite periodic testing time, detected various tests since that except deep expert small amount found once down subsequent any. parts found, 1994. No test measured The amount per million, is over 500 times below the level lowest risk of combus- only danger gas poses. tion, which is the The lowest level support approximately parts 50,000 which the per will combustion is Except combustibility, gas poses million. for its no risk safety offensive, to health or and is not otherwise because it is McBurney Hill v. &c. Oil SE odorless, colorless, nontoxic, which Mrs. Hammond admits. single “[a] regu
Moreover, act, isolated occurrence or which if larly repeated would constitute a is not a nuisance until it regularly repeated. [Cit.] Assuming argument . . . for the sake of [single] that the evidence showed that this occurrence due negligence wholly of the defendant in case, this it was insufficient to any finding creating authorize that the defendant was or maintain ing a nuisance so as to authorize the abatement thereof. . . .”South Liquid Chapman, eastern Fertilizer Co. v. *10 (2) (120 Desprint County, SE2d See Svcs. v. DeKalb (2) 488) (1988); compare County 218, Ga. SE2d DeKalb (2) (402 513) Orwig, (1991). 137, 138-139 SE2d experienced refinancing The difficulties Mrs. Hammond in her property, ultimately despite which she did refinance, the one presence instance of methane, measured were attributed not to the property. the small amount on her That information was not con- veyed any long lender and was obtained in 1994, June after her refinancing. conveyed 1988 initial efforts at Nor was it renter proposed presence renter, so the of a minuscule amount of meth- gas many ane surface, below the once, detected did not affect marketability property. as either sale or rental Instead, the difficul- perception property ties founded on that the was worth less problems nearby property because of the methane of other owners guaranteed and the lack of a forecast. operated The landfill itself cannot be a nuisance. It had been in years prior closed, when it was and the residential subdivi- sion in which Mrs. Hammond’s house is located was built thereafter.3 “[T]hose owning property vicinity public prop- in the of a work, whose erty depreciated thereby, compensation values are are not entitled to provision private property under the state constitutional shall damaged public just not be compensation.” taken or use without 546) Open Evans v. Government, Just Ga. (1979).4 plaintiffs alleged per Evans, nuisance se and nuisance per authority accidens. Id. at 836. But the Court relied on earlier holding prisons public necessity, that the at issue are a are autho- (4). legal rized law, and thus are in no sense nuisance. Id. at 839 public The same must be said of a Moreover, landfill. the value of property Mrs. Hammond’s established when the landfill already in recognized existence and course, closed. Of Evans, as facility kept might manner which the become a nuisance. migration Here, then, the is whether the of methane 3 “Coming necessarily preclude to a nuisance” recovery. Keeton, does not See Prosser & Torts, “Nuisance,” pp. The Law of 634-636. Constitution, I, Ill, Present Art. Sec. Par. I. property, tends to Hammond’s evidence which Mrs. onto others’ refinancing possibly its of hers insofar as affected the value show property her a nuisance on concerned, can constitute sale are its County, right enjoy property. v.DeKalb held in As Duffield (1978), owners where compre- “property” condemnation, nuisance and inverse also claimed rights thing possessed in rela- of the owner as the well hends enjoy dispose possess, right person it, use, it; “the tion to [Cit.]” right corresponding the use. others from to exclude and the omitted.) (Punctuation “physical dam- invasion” There need not be only aging property; “an also be constituted a nuisance enjoy posses- right of the owner to his interference with the unlawful Id. at 434. sion.” plain safety connected to no health or nuisance
Here there was engendered property; economic nuisance there is a claimed tiff’s by by Holt’s, and other such as in such levels on inability municipality no future on to assure of defendant an inter This cannot constitute unlawful Mrs. Hammond’s enjoyment so as to con Hammond’s of her ference with Mrs. by municipality as to her. of a nuisance stitute the maintenance plaintiff’s adjacent property, tending problem A to devalue a nuisance. Jill as to amount to is not such inconvenience Mere Barton, son v. *11 nearby adjacent con nui diminution in value as a result of itself, not an actionable tamination, in and of does constitute and with the use and of such losses is not a substantial sance because the creation municipality unreasonable interference neighbors’ property enjoyment property. of The contamination plaintiff’s property by spill did constitute a nuisance on over to perception way of the value the effect of the former on the market of absque injuria, legal a loss without of her It is damnum injury. Hammond claims as
Other courts have referred to what Mrs.
e.g.,
injury
“stigma”
compensation. See,
In re
and have refused
(E.D.
1992);
Litigation,
FSupp. 1071,
Pa.
Paoli R. Yard PCB
(Mich. 1992); City
Co.,
v. Thomas
Decided Hallman, Hallman, Jr., Decker & F. Moss, Edwin C. David Richards-Greenway, appellant. Pamela M.
Jones, Miller, Lovein, Jr., & Norman, Cork Hubert C. Robert C. appellee. Jr., for
Kilpatrick Cody, Kazmarek, & Sanders, Edward A. Troutman Johnson, Jr., John Hill, Sumner, H. Hollister A. Walter E. Susan M. Pruett, F. Grubiak, James amici curiae. SYSTEMS,
A97A0050. SOUTHEASTERN EXPRESS INC. et al. v. SOUTHERN GUARANTYINSURANCE COMPANY OF
GEORGIA. Judge. Eldridge, *12 Guaranty Company 9, 1994, On June Southern Insurance Georgia, appellee, brought declaratory judgment action in the Superior County against Express Sys- Court of Bibb Southeastern Express Systems, Brokerage tems, Inc., Southeastern Southeastern Company, Gerry George Express, Barnes, Clark, Southeastern Kevin coverage regarding
Wambolt to determine a California lawsuit against Appellee policy coverage period begin- them. issued a ning 25, 1989, October several renewals October