USCA11 Case: 21-12873 Date Filed: 09/22/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12873
Non-Argument Calendar
____________________
KSSR PROPERTIES, LLC,
Plaintiff-Appellant,
versus
BELLSOUTH TELECOMMUNICATIONS, LLC and
GOOGLE FIBER, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-02708-TCB
____________________
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2 Opinion of the Court 21-12873
Before WILSON, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
Bellsouth Telecommunications, LLC installed an under-
ground telecommunications conduit below a public right-of-way in
Atlanta in 1954. Google Fiber Inc. installed an underground fiber
optic conduit below a neighboring right-of-way in 2016. A small
portion of each conduit encroaches on KSSR Properties, LLC’s
property.1 KSSR discovered the conduits under its land in February
2017.
KSSR filed suit against Bellsouth and Google Fiber in 2019
for, as relevant here, trespass. Bellsouth moved for summary judg-
ment based on an expired statute of limitations. Google Fiber
moved for summary judgment on the ground that it was an inno-
cent trespasser. The district court granted both motions.
Because the district court properly applied Georgia’s statute
of limitations to KSSR’s claim against Bellsouth and because there
is no question of material fact about Google Fiber’s status as an in-
nocent trespasser, we affirm.
I
This Court reviews de novo the grant or denial of summary
judgment. Thornton v. E.I. DuPont de Nemours & Co.,
22 F.3d
284, 288 (11th Cir. 1994). Summary judgment is required if “the
1 The encroachment is approximately 32 square feet.
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21-12873 Opinion of the Court 3
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
In making this determination, the court views all the evi-
dence in the light most favorable to the nonmoving party and
draws all reasonable inferences in that party’s favor. Johnson v.
Booker T. Washington Broad. Serv., Inc.,
234 F.3d 501, 507 (11th
Cir. 2000). A dispute of fact is only “genuine” “if the record taken
as a whole could lead a rational trier of fact to find for the nonmov-
ing party.” Tipton v. Bergohr GMBH-Siegen,
965 F.2d 994, 998
(11th Cir. 1992).
II
First, we address Bellsouth’s motion for summary judg-
ment. There is no dispute of material fact. Rather, the dispute be-
fore us is about when the statute of limitations began to run on
KSSR’s claim. Georgia’s statute of limitations requires: “All actions
for trespass upon or damage to realty shall be brought within four
years after the right of action accrues.” O.C.G.A. § 9-3-30(a). At
dispute in this case is the last phrase of the statute: after the right of
action accrues.
Georgia law calculates the date of accrual based on “when
the plaintiff could first have maintained his action to a successful
result.” U-Haul Co. of W. Georgia v. Abreu & Robeson, Inc.,
277
S.E.2d 497, 499 (Ga. 1981) (internal quotation omitted). When “the
mere presence” of a trespass causes damage, the resulting claim “is
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4 Opinion of the Court 21-12873
permanent in nature,” City of Atlanta v. Kleber,
677 S.E.2d 134, 137
(Ga. 2009) (citation omitted), and gives “but one right of action,”
which accrues, at the latest, when a reasonable person would have
discovered the trespass, City Council of Augusta v. Lombard,
28
S.E. 994, 994 (Ga. 1897). Where improper maintenance or ongoing
conduct tied to the trespass causes damage, the claim “is continu-
ing in nature,” Kleber,
677 S.E.2d at 137, and doesn’t accrue “until
a plaintiff discovers or with reasonable diligence should have dis-
covered that he was injured,” King v. Seitzingers, Inc.,
287 S.E.2d
252, 254 (Ga. Ct. App. 1981).
KSSR’s damage is from a permanent trespass. KSSR was in-
jured by the “mere presence of the [] conduit under its property”
and the added costs it incurred to work around the conduit during
later construction. The existence of the conduit is the problem,
then, not any continuous harm emanating from the conduit.
KSSR tries to describe its injury in terms of a continuous tres-
pass, but to no avail. It argues that it couldn’t waterproof one side
of its building and that its storm water inlet is too low, both causing
water leaks. Neither is a continuous nuisance. The water leaks
don’t themselves come from the conduit—only from its presence
on the property.2 So too, future damages in the way of limitations
2 KSSR would have a new cause of action if the water leaks came from the
conduit itself, not just actions KSSR took to work around the conduit. The
four-year limitation period doesn’t bar “an action for property damage where
the instrumentality causing the damage may have existed for many years, pro-
vided the damages sought to be recovered accrued within four years of the
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21-12873 Opinion of the Court 5
on future development options are based on the conduit’s mere
presence.
Because KSSR’s injury is permanent, we determine when its
cause of action accrued by looking to when a reasonable person
would have become aware of the injury. KSSR was likely unaware
of the conduit prior to 2017. KSSR’s title search and survey before
buying the property didn’t reveal the conduit. There were no visi-
ble signs of the conduit, and Bellsouth has not performed any
maintenance work on KSSR’s property that would have given no-
tice of the conduit.
But “mere ignorance of the existence of a right of action, ab-
sent the element of fraud, does not toll a statute of limitation.”
Everhardt v. Rich’s, Inc.,
194 S.E.2d 425, 429 (Ga. 1972); see also U-
Haul Co. of W. Georgia, 277 S.E.2d at 499. The prior owner of the
land reasonably should have known of the conduit when Bellsouth
installed it in 1954. 3 Bellsouth had a permit from the Georgia State
Highway Department for the installation, and the initial construc-
tion wasn’t subtle: It involved excavators and up to 12 months of
construction.
It doesn’t matter that KSSR is a subsequent owner of the
land. “[If] the original owner would be barred from recovering . . .
[t]he fact that the building was sold and the present suit is being
filing of the complaint.” Travis Pruitt & Assocs., P.C. v. Bowling,
518 S.E.2d
453, 454 (Ga. Ct. App. 1999) (citation omitted) (emphasis added).
3 KSSR purchased the property in 2000.
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6 Opinion of the Court 21-12873
brought by a subsequent owner does not revive the cause of action
which was barred as to the original owners.” U-Haul Co. of W.
Georgia, 277 S.E.2d at 499. As such, KSSR cannot revive a cause of
action that its predecessor in interest forsook.
The statute of limitations against Bellsouth began to run
when Bellsouth first installed the conduit, more than four years be-
fore KSSR brought suit. Accordingly, the district court was correct
to dismiss KSSR’s claim against Bellsouth as barred by the statute of
limitations.
III
Second, we address Google Fiber’s motion for summary
judgment. Here, the question is whether there is a dispute of ma-
terial fact as to whether Google Fiber was an innocent trespasser.
The district court held that there was not. We agree.
“[T]he well-established ‘innocent trespasser’ rule[] states
that ‘an unintentional and nonnegligent entry onto another’s land
does not automatically subject an individual to liability even
though the entry causes harm to the possessor.’” Bullard v. Bouler,
612 S.E.2d 513, 516 (Ga. Ct. App. 2005) (citation omitted).
Georgia courts typically leave “whether [a] trespass was will-
ful or whether the defendant meets the burden of proving he is an
innocent trespasser” to the jury. Woodstone Townhouses, LLC v.
S. Fiber Worx, LLC,
855 S.E.2d 719, 728 (Ga. Ct. App. 2021). But
where “[t]he evidence demands the conclusion that” a party did not
commit a willful trespass, courts have granted summary judgment
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21-12873 Opinion of the Court 7
on the question. C.W. Matthews Contracting Co. v. Wells,
249
S.E.2d 281, 282 (Ga. Ct. App. 1978).
In C.W. Matthews Contracting Co., the Georgia court on
summary judgment found no liability against the defendant tres-
passer because the defendant was “following plans and specifica-
tions furnished to him by the governmental authority which
showed that the property involved in the construction of this road
was within the state’s right-of-way.”
Id. The facts in this case are
undisputed and nearly identical. Google Fiber relied on city and
county documents, basing its construction on a 50-foot right-of-way
as represented by the City of Atlanta and Fulton County. Google
scaled a 50-foot right of way—10 feet on each side of a 30-foot-wide
road—from Google aerials to determine the location of the right of
way and used county and city GIS data to verify the location.
KSSR relies on Woodstone Townhouses to argue for a jury
determination. The procedural posture and facts of that case are
distinguishable from those in this case. There, it was the plaintiff
moving for summary judgment, and the court found sufficient ev-
idence for the defendant to prevent a summary finding of liability.
855 S.E.2d at 728.
No reasonable jury could find that Google willfully tres-
passed on KSSR’s property because of its reliance on government
records and physical confirmation of the conduit’s location. Ac-
cordingly, the district court was correct to grant summary judg-
ment to Google Fiber.
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8 Opinion of the Court 21-12873
IV
For the foregoing reasons, we hold that the four-year statute
of limitations bars KSSR’s claim against Bellsouth. Further, we
hold that there is no question of material fact about whether
Google Fiber was an innocent trespasser. Accordingly, the district
court’s judgment is affirmed.
AFFIRMED.
