Appellants Peter F. Hoffman et al. own property in Troup County on which a predecessor gave an easement and right-of-way to Plantation Pipeline Company (Plantation). From 1941 to 1970, Plantation installed a four-inch pipeline extending from Macon to LaGrange for transportation of petroleum products. This pipeline by virtue of the easement goes through appellants’ property. Appellants bought this property in April 1984. This suit was filed alleging that from 1954 to 1956, four leaks occurred, spilling about 1,000 barrels (42,000 gallons) of petroleum products into the soil and groundwater of this property; the contamination on the property is gasoline, kerosene or other products. In December 1970, Plantation sold and assigned the pipeline and easement rights to Atlanta Gas Light Company. Appellants say Plantation admits the presence of hazardous chemicals in the spills; that it is undisputed that the contamination can be removed; and that it is undisputed that as the contamination migrates outward from the pipeline, the expense of removing the contamination increases.
Plantation and Atlanta Gas Light contend they were informed by appellants of the contamination in 1988. In March 1990, appellants formally demanded that Plantation and Atlanta Gas Light remove *728 the contamination from the property, but this demand was refused and suit was filed August 29, 1990, alleging, inter alia, that Atlanta Gas Light conducted tests in 1981 which revealed holes in the pipeline but never informed appellants, that the leaks were discovered in 1988 when prospective purchasers conducted environmental tests, and that the contaminants continue to spread throughout the property so that it is unmarketable because of hydrocarbon contamination. Appellants in Count I sought an injunction against the present owner of the pipeline, Atlanta Gas Light; they alleged creation and maintenance of nuisance against Plantation and Atlanta Gas Light (Count II); they alleged trespass against Plantation on account of the presence of Plantation’s contaminants (Count III); they alleged breach of an instrument under seal by both defendants (Counts IV and V); they alleged fraud of both defendants for failure to reveal the leaks and contamination to appellants (Count VI and VII); and they sought punitive damages against both defendants for knowing and wilful failure to maintain the pipeline and to remove contamination after demand.
The trial court granted summary judgment to defendants on all counts, hence this appeal. Held:
1. “ ‘Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law.
OCGA § 9-11-56 (c).’ [Cit.] ‘(T)he evidence must be construed most strongly against the movant, and the party opposing the motion is entitled to all inferences that may fairly and reasonably be drawn in support of his case.’ ” (Emphasis supplied.)
Southern States Landfill v. Walton County,
To prevail on a motion for summary judgment, defendants Plantation and Atlanta Gas Light must pierce the allegations of appellants’ complaint and establish
as a matter of law
that appellants could not recover under
any theory fairly drawn
from the pleadings and the evidence.
Proctor & Gamble Paper Products Co. v. Yeargin Constr. Co.,
Plantation Pipeline contends the statute of limitation governing the trespass and nuisance claims expired in 1960, four years after the last leak from the pipeline relative to appellants’ property; that the alleged contamination does not constitute a continuing nuisance or trespass; that Plantation transferred its easement rights and obligations to Atlanta Gas Light in 1970 and has had no legal interest or control over the pipeline as to that property since that time; that any claims arising as a result of leaks from the pipeline were barred by the time appellants bought the property in 1984; and that Plantation did not breach the easement agreement but fulfilled all its duties thereunder. Plantation shows that when it transferred its interests to Atlanta Gas Light in 1970, all petroleum products were purged from the pipeline and it was filled with water and rust inhibitor as was the practice, and no leaks were evident during Atlanta Gas Light’s ownership of it, inasmuch as no leaks occurred after 1956. Plantation asserts appellants confuse continuous or regularly repetitious acts or conditions (leaks) with the hurt, inconvenience or injury (contamination), and that appellants fail to realize the distinction between past and completed acts and continuing and recurrent acts. In other words, Plantation says appellants confuse the “acts” with the “results,” and that the last “acts” (leaks) occurred in 1956.
Appellants allege that four leaks formed in the pipeline from 1954 to 1956, and that although the leaks were repaired the contamination is continuing and although it could be abated by defendants, it remains unabated. Appellants insist that it is not the pipeline or the leaks which constitute a nuisance and continuing trespass, but the hydrocarbon contamination. The reasonable inference drawn in favor of appellants, as respondents to motion for summary judgment, is that Plantation fixed the leaks but failed to remove the contamination which has exuded and continues to exude throughout the property.
We conclude it is the appellees who are confused as to what the nuisance is in this case. The old holes in this pipeline are not the *730 nuisance; the nuisance is the continuing exudation and leaching of chemicals into the ground from the contaminants deposited long ago through the leaks.
The question in this case does not revolve around what day the holes appeared in the pipe or what day they were fixed. The question is whether the contaminating hydrocarbon pollution which began in 1956 is a
continuing
nuisance or a
permanent
nuisance. Appellees contend this is a “completed act” and it is too late for appellants to get redress. But, appellants say the contamination is spreading. If that is so, the contamination is not a “completed act.” According to the Supreme Court in
Goble v. Louisville &c. R. Co.,
The grant of summary judgment to Plantation as to the counts *731 for nuisance and trespass was error.
2. As to Atlanta Gas Light’s contention that it did not cause the leaks or the hydrocarbon contamination, the case is slightly different. Atlanta Gas Light contends there is no evidence of any leaks since 1956; that before it acquired the pipeline, the pipeline was purged with water; that Atlanta Gas Light has never used the segment of pipeline crossing over this property and has never transported gasoline, kerosene or other refined petroleum products through the pipeline and that the contamination on the property consists of gasoline, kerosene and other refined petroleum products; and that Atlanta Gas Light had no knowledge of the presence of hydrocarbons on the property until so informed by appellants in 1989, and made no statements concerning the pipeline, the property or contaminants and never deceived appellants. Atlanta Gas Light contends that there is no causal connection between itself and the alleged harm.
Accepting arguendo that Atlanta Gas Light did not cause the hydrocarbon contamination, nevertheless Atlanta Gas Light now holds and controls the easement and the pipeline which are the physical source of the contamination on appellants’ property. There is a distinction between creating a nuisance and maintaining a nuisance. OCGA § 41-1-5 provides: “(a) The alienee of a person owning property injured may maintain an action for continuance of the nuisance for which the alienee of the property causing the nuisance is responsible. (b) Prior to commencement of an action by the alienee of the property injured
against the alienee of the property causing the nuisance,
there must be a request to abate the nuisance.” (Emphasis supplied.) The principle on which one is charged as a continuing wrongdoer is that he is under a legal duty to terminate the cause of the injury.
Keener v. Addis,
Atlanta Gas Light is not insulated from responsibility for the maintenance of a continuing nuisance merely by the fact that it did not create the contamination and had no “causal” relation to the contamination as it was first created. Under OCGA § 41-1-5, “maintenance” of a nuisance is the failure to abate the nuisance after notice by the injured party. Notice to an alienee that he will be held responsible for any damages subsequently caused by the nuisance will suffice in lieu of a specific request to abate.
Central of Ga. R. Co. v. Americus Constr. Co.,
3. As to the question of the breach of the easement agreement as an instrument under seal, appellants contend that the easement agreement under which Plantation acquired the easement has been in effect continuously since inception in 1941, and that it guarantees to appellants the right “to fully use and enjoy” the property, which they cannot do until and unless the contamination is abated. Continuing breach of the easement agreement by Plantation and Atlanta Gas Light is a jury question in this case.
4. Appellees were not entitled to summary judgment on the question of concealment of the existence of the contamination from appellants, as alleged in the fraud counts.
5. -It follows from all we have said here, and the reversal of the grants of summary judgment, that summary judgment to appellees as to Count I was improperly granted, and that appellants may recover punitive damages on the counts proved as provided by law.
Judgment reversed.