Fulton County v. City of Sandy Springs

295 Ga. 16
FINAL COPY
S14A0114. FULTON COUNTY et al. v. CITY OF SANDY SPRINGS et al.
MELTON, Justice.
On December 9, 2010, the City of Sandy Springs and two individual
homeowners, John E. Balsam and Jerry Burnstein (collectively Sandy Springs)
filed suit against Fulton County, its Board of Commissioners, and its Director
of Public Works. Specifically, Sandy Springs filed a petition for declaratory
judgment, mandamus, and injunctive relief in which it asked the trial court to
determine that Fulton County retained ownership of and responsibility for two
drainage retention ponds and a dam located within Sandy Springs. On June 21,
2013, following a bench trial, the trial court found in favor of Sandy Springs,
and Fulton County now appeals, contending that it is prohibited from
maintaining the detention ponds pursuant to the Georgia Constitution. For the
reasons set forth below, we affirm in part and reverse in part.
The record shows that, in 1976, the land that is now Sandy Springs was
a part of unincorporated Fulton County. As a result of drainage problems in and
around Arlington Cemetery, several homeowners threatened Fulton County with
a lawsuit. As part of the negotiations with the homeowners, Fulton County
agreed to construct two detention ponds on the grounds of Arlington Cemetery.
To accomplish this goal, Fulton County was granted two easements in order to
build and maintain the water detention ponds. One easement grants the "right to
erect, construct, reconstruct, replace, remove, maintain and use on said described
property a dam and detention pond as [Fulton County] shall from time to time
require as part of the public drainage system." The easements "further grant[ ]
to [Fulton County] the right of ingress to and egress from said described
easement property over and across the land."1 In addition to these easements,
Fulton County also condemned a small parcel of land to enable construction of
the ponds.
On December 1, 2005, Sandy Springs came into existence pursuant to
House Bill 37 of the Georgia General Assembly. Some time thereafter,
homeowners began experiencing water problems which were traced back to the
detention ponds at Arlington Cemetery. The dam and ponds were in disrepair
and, apparently, had been wholly neglected for a long period of time. Testimony
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Both easements grant similar rights.
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indicated that, until the drainage problems recurred, both Sandy Springs and
Fulton County may have forgotten about the existence of the drainage ponds. It
is undisputed that Fulton County still owns the easements in question, and it has
done nothing to transfer them. Based on these facts, the trial court granted
Sandy Springs’s petition, finding that Fulton County retained an obligation to
maintain the dam and ponds it built. We agree.
As a general rule, “the holder of an easement is responsible for repairs to
the easement when the use of the easement is impaired due to lack of
maintenance.” Equitable Life Assurance v. Tinsley Mill Village, 249 Ga, 769,
771 (1) (294 SE2d 495) (1982). Moreover, the easements in question explicitly
enable maintenance to be performed by Fulton County. Under these
circumstances, the trial court properly ruled that, as long as the easements are
held by Fulton County, it has the responsibility to maintain them.
Fulton County nonetheless contends that it is prohibited from maintaining
the easements by Article IX, Section II, Paragraph III of the Georgia
Constitution, which provides:
(a) In addition to and supplementary of all powers possessed
by or conferred upon any county, municipality, or any combination
thereof, any county, municipality, or any combination thereof may
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exercise the following powers and provide the following services
. . . : (6) Storm water and sewage collection and disposal systems..
. . (b) Unless otherwise provided by law, (1) No county may
exercise any of the powers listed in subparagraph (a) of this
Paragraph or provide any service listed therein inside the
boundaries of any municipality or any other county except by
contract within the municipality or county affected. . . .
Fulton County’s reliance on this constitutional provision is misplaced. Fulton
County is not being required to provide Sandy Springs with an ongoing “storm
water and sewage collection and disposal system” in the absence of an
intergovernmental contract. As it stands right now, Fulton County continues to
own the easements. Until its easement is legally transferred, terminated, or
abandoned, Fulton County is merely being required to maintain those structures
it previously decided to build.2
Fulton County also argues that its easement to build and maintain the
ponds and dam were automatically terminated by the creation of Sandy Springs.
To support this argument, Fulton County points to statutory provisions which
2
Fulton County vehemently argues that its rights under the easement
are not exclusive; therefore, it should not be exclusively required to maintain
the ponds and dam. This argument misses the mark. Fulton County decided
to exercise its right to build the dam and the ponds, and it must currently
maintain the structures.
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automatically transfer ownership of roads and rights of way to new
muncipalities. See OCGA § 36-36-7. As Fulton County concedes, however, this
statutory provision does not encompass property interests generally. Indeed,
property such as parks and public buildings must be separately transferred from
one entity to the other. See OCGA § 36-31-11.1. Fulton County has pointed out
no statute or law which would indicate that an easement over private property
automatically terminates when a city has been created.3
We note that, in a supplemental brief, Fulton County contends that is has
abandoned the easements. Fulton County did not raise the issue of abandonment
in its enumerations before this Court, and it stressed at oral argument that its
contentions were constitutionally based. Fulton County did raise an
abandonment argument in a motion for summary judgment below. The trial
court, in its order on the summary judgment motion, rejected Fulton County’s
3
Although an easement may terminate by operation of law when there
has been a merger of the dominant and servient estate, there has been no such
merger in this case. “[W]here there is a union of an absolute title to and
possession of the dominant and servient estates in the same person, it
operates to extinguish any such easement absolutely and forever, for the
single reason that no man can have an easement in his own land. [Cits.]”
(Punctuation omitted) Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga.
210, 218-219 (54 S.E. 1028) (1906).
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abandonment argument. The trial court did so by citing Whipple v. Hatcher, 283
Ga. 309, 310 (658 SE2d 585) (2008), for the proposition that “an easement
acquired by grant is not extinguished merely by nonuse; there must be clear,
unequivocal, and decisive evidence of an intent to abandon the easement.” At
the subsequent bench trial, Fulton County did not argue abandonment.
Therefore, to the extent that it now attempts to argue that its past conduct
constitutes abandonment, this issue is waived for purposes of this appeal.
Under the present circumstances of this case, we find that Fulton County
retains current ownership of and responsibility for the easements it holds over
the dam and retention ponds located in Sandy Springs. As stated previously,
however, any concomitant responsibility continues only until the easements at
issue are legally transferred, terminated, or prospectively abandoned. As a result,
to the extent that the trial court’s order may be read to indicate that Fulton
County has to maintain the easements in perpetuity, it must be reversed.
Judgment affirmed in part and reversed in part. All the Justices concur,
except Benham, J., who dissents.
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BENHAM, Justice, dissenting.
As recited in the majority opinion, one of the easements in this case
granted Fulton County the right to construct the dams and retention ponds
involved in this dispute as “require[d] as part of the public drainage system.”
The trial court found in its order denying summary judgment to Fulton County
that both easements were granted for this purpose. Both easements conveyed
the right to enter onto the land to construct and maintain these storm water
detention facilities.1 It appears that Fulton County undertook the construction
of these facilities pursuant to the authority granted to it by what is now found
in the 1983 Constitution, Article IX, Section II, Paragraph III (a) (6), to provide
1
The majority opinion references the fact that Fulton County agreed to construct the two
detention ponds as part of negotiations with certain homeowners who had threatened a lawsuit
against the County. The factual findings set forth in the trial court’s judgment includes the
finding that, as the result of a settlement of the homeowners’ demands, Fulton County was
contractually obligated to construct the storm water detention facilities it built on these
easements. The judgment is also based, in part, upon the legal conclusion that Fulton County is
contractually obligated to maintain these facilities. In fact, the evidence shows no lawsuit was
actually filed and the resolution of the dispute was apparently a voluntary undertaking of Fulton
County’s duty or authority to provide such services to the County and was not part of an
enforceable agreement or settlement. Further, the record reflects the resolution was part of a
joint effort involving not just Fulton County but also the owner of the land on which the ponds
were built as well as the developer of the residential subdivision impacted by the water runoff
problem. I see no evidence to support the legal conclusion that Fulton County assumed a
contractual duty to maintain the facilities it built on its easements.
storm water and sewage collection and disposal systems to what was, at that
time, an unincorporated area of the county. Now that these storm water
detention facilities are no longer located within unincorporated Fulton County,
the County is no longer obligated to provide these facilities; in fact, the County
is constitutionally prohibited from maintaining these facilities except by contract
with Sandy Springs or unless otherwise provided by law.2 See Ga. Const. of
1983, Art. IX, Sec. II, Par. III (b) (1); Cobb County v. City of Smyrna, 270 Ga.
App. 471, 473 (1) (a) (606 SE2d 667) (2004) (pursuant to this constitutional
provision, each local government is restricted to providing the services
enumerated in it only within that government’s boundaries). Further, pursuant
to a local constitutional amendment applicable specifically to Fulton County, the
governmental authority of Fulton County was limited in various ways (Ga. L.
1951, p. 828, ratified Nov. 4, 1952, as amended by Ga. L. 1953, Nov.-Dec.
Sess., p. 144), including prohibiting Fulton County from rendering, among other
things, sewage and drainage systems “inside any incorporated area within its
2
No evidence was presented that these detention ponds provide storm sewer service to
any territory within unincorporated Fulton County or that they connect in any way with any
facilities serving unincorporated Fulton County. Instead, the evidence supports the conclusion
that these two ponds serve only the immediate neighborhood, which is now within the limits of
Sandy Springs.
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boundaries.” Id. at Sec. 1. The 1951 local amendment also granted the General
Assembly authority to prescribe by general or special laws the powers of Fulton
County, and in 1986, the General Assembly enacted a local and special act that
continued in force and effect the limitations upon Fulton County’s governmental
authority that were contained in the 1951 local constitutional amendment. Ga.
L. 1986, p. 4442.
The majority opinion states that its holding only requires Fulton County
to retain responsibility for the easements and to maintain the structures it built
until such time as the easements are “legally transferred, terminated, or
prospectively abandoned.” But this ignores the reality that Sandy Springs, as
evidenced by its complaint, disclaims the duty to repair or maintain these
facilities. I can think of no way for Fulton County to unilaterally terminate the
easements and transfer them to Sandy Springs since Sandy Springs does not
want them. Further, the majority ignores the “Catch 22" in which Fulton County
is placed by its holding with respect to termination or abandonment of the
easements. As long as the County is required to maintain these facilities in
working order, this effectively prevents the County from abandoning the
easements. Even if, as the trial court ruled, more than just Fulton County’s
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continued nonuse of the easements is required to show its express intent to
abandon them in this case, requiring the County to continue to use the easements
by maintaining them would seem to prevent it from ever expressly abandoning
them.
Most importantly, the majority opinion also ignores the reality that
requiring Fulton County to maintain these facilities does, indeed, effectively
require the County to provide the very services that it is prohibited by law from
providing. This is because it appears from the allegations in the complaint and
the record that the act of maintaining the facilities Fulton County originally
constructed to collect and control storm water runoff is synonymous with
providing the service of “storm water and sewage collection and disposal
systems,” as that term is used in the constitutional provision that now prohibits
Fulton County from providing that service. See Ga. Const. of 1983, Art. IX, Sec.
II, Par. III (a) (6) and (b) (1).
I agree that the creation of Sandy Springs did not automatically terminate
these easements and that the easements were not transferred to Sandy Springs
upon the city’s creation. But that is not the issue raised by this case. The
easements simply permit Fulton County to enter onto the property owned by
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another to construct and maintain the facilities it built. By law, it is no longer
permitted to provide the storm water detention services that these facilities were
built to provide. As with any contract, an express easement is to be construed
pursuant to its plain language. See Irvin v. Laxmi, Inc., 266 Ga. 204 (1) (467
SE2d 510) (1996). The easements themselves do not require Fulton County to
construct or maintain any facility at all; they simply provided the County with
the legal right of access, as well as right of use of the property, to fulfill the duty
of providing the storm sewer services it assumed at the time it acquired these
easements. The easements granted to Fulton County are merely permissive and
not mandatory, and the grantee, Fulton County, is not required to use them.
Compare Owens Hardware Co. v. Walters, 210 Ga. 321 (80 SE2d 285) (1954)
(no duty is cast upon the owner of an easement acquired by grant or deed to use
the easement as a condition to retaining his interest in it).
The majority relies upon Equitable Life Assurance Society fo the U. S. v.
Tinsley Mill Village, 249 Ga. 769, 771 (1) (294 SE2d 495) (1982), for the
proposition that Fulton County, as the holder of these easements, has a duty to
repair them. But the Equitable case stands for the unremarkable proposition that
the holder of an easement, and not the owner of the property over which the
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easement crosses, is responsible for making repairs to the easement so that the
holder of the easement may use it.3 Compare Puryear v. Clements, 53 Ga. 232
(1874) (the plaintiffs, holders of a prescriptive easement to use a private way
that defendant established and paid for, could not require the defendant to repair
a causeway for the plaintiffs’ benefit but the defendant could not prevent the
plaintiffs from rebuilding it for themselves). That is not the issue in this case.
Fulton County has not sued the owner of the property to make repairs to its own
easements; Fulton County is not using these easements and, under the
circumstances involved in this case, cannot be required to continue to use them.
Despite language to the contrary, the effect of the majority opinion is to require
Fulton County to maintain these facilities and thereby provide storm water
detention services to a territory that is not within unincorporated Fulton County,
which the County is prohibited by law to provide.
3
In the Equitable case, condominium homeowners who held an easement in a road over
a creekbed that dissected the condominium property sued the successors in interest to the original
developer of the complex which had retained ownership of the creekbed and built the culvert
under the road, through which water flowed. The homeowners sued for damages from flooding
they alleged was caused by negligent construction and maintenance of the culvert. The
defendants contended the owners were the ones that were responsible for maintaining the
culverts because they were part of the easement over the creek. This Court noted that although
the holders of an easement are generally responsible for maintaining their own easement, this
rule did not apply to bar the homeowners’ action because they were not suing for repairs to their
own easement but for damages arising from the creation of a nuisance created by the overflowing
water from the creek. 249 Ga. at 771.
6
It may be that, as a general proposition, the holder of an easement who
constructs a structure on the property has a duty to maintain that structure to the
extent that the holder remains liable for any nuisance created by it or for
damages created by its failure even after the holder claims it has abandoned the
easement.4 Further, municipalities in this State have been held liable for
damages to property arising from improper maintenance of storm sewers
constructed as part of a drainage easement. See City of Atlanta v. Williams, 218
Ga. 379 (128 SE2d 41) (1962) (finding the City of Atlanta had a duty to
maintain a drainage ditch originally built by Fulton County before the area was
incorporated into the City of Atlanta since it claimed a right to use the ditch and
was thus liable to the adjoining landowner for damage caused by overflow); City
of College Park v. Pichon, 217 Ga. App. 53 (456 SE2d 686) (1995) (affirming,
in part, an award of damages for the creation of a nuisance by failure to maintain
a drainage ditch that was part of the city’s drainage system). But the plaintiffs
in this case did not seek damages sustained by any nuisance created by Fulton
County’s failure to maintain the facilities built on the easements. Instead, they
4
See James W. Ely, Jr. & Jon W. Bruce, Repair, Maintenance, and Improvements –
Rights and Duties in General, Law of Easements & Licenses in Land § 8:37 (2014).
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sought a declaratory judgment that Fulton County is responsible for repairing
and maintaining the storm water detention structures at issue in this case to keep
them working as storm sewers, and a mandamus order requiring Fulton County
officials to do so. The unique facts of this case prohibit Fulton County from
maintaining these structures because, as noted above, as a practical matter, to
maintain these structures is to supply the services the County is prohibited by
law from supplying. Their only function is to supply storm water collection and
disposal services. This is not to say that Fulton County is barred from liability
for damages proximately caused by any nuisance created by its failure to
maintain the structures it built. See City of Atlanta v. Williams, supra; City of
College Park v. Pichon, supra. But I believe it is important to make the
distinction between potential liability for damages created by maintaining a
nuisance on an easement and the duty to maintain storm sewer services that the
trial court’s judgment, and the majority opinion, effectively require Fulton
County to provide even though it is legally barred from providing those
services.
While Sandy Springs currently does not own easements to enter onto the
private property on which the ponds are located, there is nothing to prevent it
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from obtaining the necessary easements. That is what Fulton County did in
order to fulfill its obligation to provide storm sewer facilities, and now the
obligation to provide such services to territories within its incorporated limits
is that of Sandy Springs. Presumably, Fulton County would be willing to assign
the easements to Sandy Springs.5 Alternatively, Sandy Springs may enter into
an intergovernmental contract with Fulton County to provide storm sewer
services to Sandy Springs by maintaining these facilities, as contemplated by
Article IX, Section II, Paragraph III (b) (1) of the Constitution. The solution to
the problem of storm water runoff in the affected incorporated territory is one
that Sandy Springs must now address since Fulton County is prohibited by law
from doing so, whether or not it holds these easements which previously enabled
it to provide the solution.
5
Counsel for Sandy Springs stated at the trial court hearing that Fulton County had not
offered to transfer the easements to Sandy Springs and had otherwise failed to demonstrate a
willingness to resolve the situation; but it also appears from statements of counsel and the record
that Sandy Springs has demanded, in any event, that Fulton County first undertake repairs and
maintenance to the dam and ponds, and since Fulton County denies it is legally required to
perform the services these facilities perform, it is reasonable to assume the County would
voluntarily transfer these easements even though it would not agree to undertake any
maintenance or repairs to the facilities. The record reflects that, at the time it constructed these
facilities, Fulton County acquired a small tract of property from one of the impacted homeowners
by condemnation for the purpose of containing occasional overflow of the adjoining retention
pond. Nothing prevents Sandy Springs from acquiring this tract, either, if necessary to enable it
to assume responsibility for providing storm sewer services to the area just as Fulton County was
required to acquire it previously.
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In sum, an easement, in and of itself, creates no obligation to use the
easement. It simply creates a right to do so. The holder of an easement assumes
the risk of liability for damages caused by a nuisance maintained on the
property, just as any owner of property does. But Fulton County’s potential
liability to third parties for damages resulting from its failure to maintain
structures it built on these easements, an issue not presented in this case, should
not be confused with its duty, now extinguished by law, to continue to provide
storm water detention services to the affected homeowners. This is an important
legal distinction which I believe the majority misses. Thus, I would reverse the
trial court judgment in its entirety.
Decided March 28, 2014.
Mandamus. Fulton Superior Court. Before Judge Newkirk.
Matthew C. Welch, Laura S. Lewis, Larry W. Ramsey, Jr., Kaye W.
Burwell, for appellants.
Wendall K. Willard, Lawrence D. Young, for appellees.
10