inverse condemnation claim in Georgia

2024In its complaint, MLK Properties asserted an inverse condemnation claim,4 and “[s]uch a claim is properly set forth where . . . [a] municipality takes some affirmative action for public purposes causing a nuisance or trespass which, in turn, results in the diminished utility and functionality of a private owner’s land.” City of Tybee Island, Ga. v. Live Oak Group, 324 Ga. App. 476, 479 ( 751 SE2d 123 ) (2013) (citation and punctuation omitted).

2024In its complaint, MLK Properties asserted an inverse condemnation claim,4 and “[s]uch a claim is properly set forth where . . . [a] municipality takes some affirmative action for public purposes causing a nuisance or trespass which, in turn, results in the diminished utility and functionality of a private owner’s land.” City of Tybee Island, Ga. v. Live Oak Group, 324 Ga. App. 476, 479 ( 751 SE2d 123 ) (2013) (citation and punctuation omitted).

2020Accordingly, we affirm the trial court’s order denying Rouse summary judgment on his nuisance claim. (c) Inverse Condemnation “An inverse condemnation claim arises when the governmental entity creates a condition on private property that amounts to a taking without compensation.” (Citation and punctuation omitted.) Solid Equities, Inc. v. City of Atlanta, 308 Ga. 12 App. 895, 897 (2) ( 710 SE2d 165 ) (2011).

2013The DOT asserts that Jackson failed to show that CSX was on notice that his use of the railway was adverse, rather than permissive. 1 “An inverse condemnation claim arises when the governmental entity creates a condition on private property . . . that amounts to a taking without compensation.” (Punctuation and footnote omitted.) Solid Equities v. City of Atlanta, 308 Ga. App. 895, 897 (2) ( 710 SE2d 165 ) (2011).

2016The Pribeagus’ inverse condemnation claim is based on allegations that the County created a continuing nuisance, resulting in repeated flooding to their property. 2 In Georgia, “[a] county, unlike a municipality, is not . . . generally liable for creating nuisances.” Duffield v. DeKalb County, 242 Ga. 432, 434 (2) ( 249 SE2d 235 ) (1978).

2016The Pribeagus’ inverse condemnation claim is based on allegations that the County created a continuing nuisance, resulting in repeated flooding to their property. 2 In Georgia, “[a] county, unlike a municipality, is not . . . generally liable for creating nuisances.” Duffield v. DeKalb County, 242 Ga. 432, 434 (2) ( 249 SE2d 235 ) (1978).

2023So the landowners’ claims for trespass, nuisance, and negligence “are duplicative of the inverse condemnation claim,” id., and we analyze them as one.

2019In two related claims of error, the plaintiffs also argue that the trial court erred in its conclusion that their nuisance claims were barred by the requisite four- year statute of limitations, OCGA § 9-3-30 (a), and that the trial court erred in 4 While the plaintiffs raised both a nuisance and a trespass claim in addition to their negligence claims, in essence, these claims together are proceeding as an inverse condemnation claim, “[r]egardless of how the various claims are denominated.” Stanfield v. Glynn County, 280 Ga. 785, 786 (1) ( 631 SE2d 374 ) (2006).

2015See Ga. Dept. of Transp. v. Jackson, 322 Ga. App. 212, 215 ( 744 SE2d 389 ) (2013) (“An inverse condemnation claim arises when the governmental entity creates a condition on private property that amounts to a taking without compensation”) (citation and punctuation omitted).

2015See Ga. Dept. of Transp. v. Jackson, 322 Ga. App. 212, 215 ( 744 SE2d 389 ) (2013) (“An inverse condemnation claim arises when the governmental entity creates a condition on private property that amounts to a taking without compensation”) (citation and punctuation omitted).

2013See Mayor & Aldermen of Savannah v. Savannah Cigarette & Amusement Svcs., 267 Ga. 173, 174 ( 476 SE2d 581 ) (1996) (“[e]ven assuming that inverse condemnation is an available remedy” where a landowner’s property is rezoned by the governing authority); Fulton County v. Wallace, 260 Ga. 358 ( 393 SE2d 241 ) (1990) (holding that inverse condemnation is not available remedy under facts of case; pretermits question of whether board’s failure to rezone to a constitutional classification as interpreted by trial court could ever amount to inverse condemnation under Georgia law), overruled on other gro

2013See Mayor & Aldermen of Savannah v. Savannah Cigarette & Amusement Svcs., 267 Ga. 173, 174 ( 476 SE2d 581 ) (1996) (“[e]ven assuming that inverse condemnation is an available remedy” where a landowner’s property is rezoned by the governing authority); Fulton County v. Wallace, 260 Ga. 358 ( 393 SE2d 241 ) (1990) (holding that inverse condemnation is not available remedy under facts of case; pretermits question of whether board’s failure to rezone to a constitutional classification as interpreted by trial court could ever amount to inverse condemnation under Georgia law), overruled on other gro

2026But the expenses of litigation recoverable under OCGA § 13-6-11 are “ancillary and may only be recovered where other elements of damage are also recoverable.”25 So, because attorney fees under OCGA § 13-6-11 are “ancillary and recoverable only if [Appellants] prevail[ ] on the other underlying claims, which [they have] not, the trial court properly dismissed this claim as well.”26 Finally, because we have held the Appellants’ inverse-condemnation claim is not yet ripe because the DOT has not started construction on the proposed interchange plan, the trial court should not have denied this clai

2026But the expenses of litigation recoverable under OCGA § 13-6-11 are “ancillary and may only be recovered where other elements of damage are also recoverable.”25 So, because attorney fees under OCGA § 13-6-11 are “ancillary and recoverable only if [Appellants] prevail[ ] on the other underlying claims, which [they have] not, the trial court properly dismissed this claim as well.”26 Finally, because we have held the Appellants’ inverse-condemnation claim is not yet ripe because the DOT has not started construction on the proposed interchange plan, the trial court should not have denied this clai

2025Ins. , 319 Ga. App. at 781-82 (holding county was entitled to sovereign immunity against plaintiff’s inverse-condemnation claim stemming from damage to insured home during standoff between county police department and occupant of home because eminent domain had no relevance to the exercise of the police power); Bray, 180 Ga. App. at 167-68 (explaining because there was no question that officers searching for the missing weapon were acting under the police powers of the state, damage to plaintiff’s vehicle, which was struck by another vehicle while plaintiff was using it to assist officers in s

2025Ins. , 319 Ga. App. at 781-82 (holding county was entitled to sovereign immunity against plaintiff’s inverse-condemnation claim stemming from damage to insured home during standoff between county police department and occupant of home because eminent domain had no relevance to the exercise of the police power); Bray, 180 Ga. App. at 167-68 (explaining because there was no question that officers searching for the missing weapon were acting under the police powers of the state, damage to plaintiff’s vehicle, which was struck by another vehicle while plaintiff was using it to assist officers in s

2025Ins., 319 Ga. App. at 782 (holding trial court did not err in dismissing plaintiff’s complaint alleging inverse condemnation because damage to home was result of exercise of police power). 8

2025“An inverse condemnation claim arises when the governmental entity creates a condition on private property that amounts to a taking without compensation.” Rouse v. City of 22 Atlanta, 353 Ga. App. 542, 548 (2) (c) (839 SE2d 8) (2020) (citation and punctuation omitted), disapproved of on other grounds by Sumter County. v. Morris, 318 Ga. 1, 10 (2) (a) n.10 (896 SE2d 571) (2023).

2025“An inverse condemnation claim arises when the governmental entity creates a condition on private property that amounts to a taking without compensation.” Rouse v. City of 22 Atlanta, 353 Ga. App. 542, 548 (2) (c) (839 SE2d 8) (2020) (citation and punctuation omitted), disapproved of on other grounds by Sumter County. v. Morris, 318 Ga. 1, 10 (2) (a) n.10 (896 SE2d 571) (2023).

2024Such notice must include “the time, place, and extent of the injury, as nearly as practicable, 2 In a footnote, the trial court noted its opinion that OCGA § 36-33-5 would never apply to an inverse condemnation claim because “all claims for inverse condemnation involve the taking of property by a governmental unit, and all takings are affirmative, intentional acts.” We need not decide this issue in the current case as Plaintiffs’ complaint clearly alleged intentional acts. 4 and the negligence which caused the injury.” OCGA § 36-33-5 (b). “[B]ecause the ante litem notice provision of OCGA § 36

2024West, 300 Ga. at 747, n.8 .

2023See, e.g., McFarland v. DeKalb County, 224 Ga. 618 , 618 & 619-620 (3) ( 163 SE2d 827 ) (1968) (treating trespass and nuisance claims from the flow of water onto plaintiff’s property as one claim for nuisance resulting 5 in the taking and damaging of property); Klingensmith v. Long County, 352 Ga. App. 21 , 24 (1) n. 4 ( 833 SE2d 608 ) (2019) (analyzing trespass, nuisance, and negligence claims from the flow of water as one claim under theory of nuisance because “in essence, these claims together are proceeding as an inverse condemnation claim”); Stroud v. Hall County, 339 Ga. App. 37, 44 (4)

2023See, e.g., McFarland v. DeKalb County, 224 Ga. 618 , 618 & 619-620 (3) ( 163 SE2d 827 ) (1968) (treating trespass and nuisance claims from the flow of water onto plaintiff’s property as one claim for nuisance resulting 5 in the taking and damaging of property); Klingensmith v. Long County, 352 Ga. App. 21 , 24 (1) n. 4 ( 833 SE2d 608 ) (2019) (analyzing trespass, nuisance, and negligence claims from the flow of water as one claim under theory of nuisance because “in essence, these claims together are proceeding as an inverse condemnation claim”); Stroud v. Hall County, 339 Ga. App. 37, 44 (4)

2023See, e.g., McFarland v. DeKalb County, 224 Ga. 618 , 618 & 619-620 (3) ( 163 SE2d 827 ) (1968) (treating trespass and nuisance claims from the flow of water onto plaintiff’s property as one claim for nuisance resulting 5 in the taking and damaging of property); Klingensmith v. Long County, 352 Ga. App. 21 , 24 (1) n. 4 ( 833 SE2d 608 ) (2019) (analyzing trespass, nuisance, and negligence claims from the flow of water as one claim under theory of nuisance because “in essence, these claims together are proceeding as an inverse condemnation claim”); Stroud v. Hall County, 339 Ga. App. 37, 44 (4)

2023See, e.g., McFarland v. DeKalb County, 224 Ga. 618 , 618 & 619-620 (3) ( 163 SE2d 827 ) (1968) (treating trespass and nuisance claims from the flow of water onto plaintiff’s property as one claim for nuisance resulting 5 in the taking and damaging of property); Klingensmith v. Long County, 352 Ga. App. 21 , 24 (1) n. 4 ( 833 SE2d 608 ) (2019) (analyzing trespass, nuisance, and negligence claims from the flow of water as one claim under theory of nuisance because “in essence, these claims together are proceeding as an inverse condemnation claim”); Stroud v. Hall County, 339 Ga. App. 37, 44 (4)

2021Thus, the Supreme Court of Georgia has held that an inverse condemnation claim is an available remedy from an allegedly improper zoning classification if “the landowner can meet the separate and distinct requirements for such a claim.” Diversified Holdings, LLP, supra, 302 Ga. at 597 .

2021The Court, however, acknowledged that “zoning is unlikely to be a fertile ground for inverse condemnation claims.” Id. at 610 (III).

2020See Petree v. Dept. of Transp., 340 Ga. App. 694, 704 (3) (a) ( 798 SE2d 482 ) (2017) (“A statute of limitation defense goes to the merits of the claim, and is therefore subject to a motion to dismiss under OCGA § 9-11-12 (b) (6)”).

2020See Petree v. Dept. of Transp., 340 Ga. App. 694, 704 (3) (a) ( 798 SE2d 482 ) (2017) (“A statute of limitation defense goes to the merits of the claim, and is therefore subject to a motion to dismiss under OCGA § 9-11-12 (b) (6)”).

2016Rather, a county is only liable when it “causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes.” (Citation and punctuation omitted.) DeKalb County v. Orwig, 261 Ga. 137, 138 (1) ( 402 SE2d 513 ) (1991) (“Orwig II”).

2016Rather, a county is only liable when it “causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes.” (Citation and punctuation omitted.) DeKalb County v. Orwig, 261 Ga. 137, 138 (1) ( 402 SE2d 513 ) (1991) (“Orwig II”).

2013See Mayor & Aldermen of Savannah v. Savannah Cigarette & Amusement Svcs., 267 Ga. 173, 174 ( 476 SE2d 581 ) (1996) (“[e]ven assuming that inverse condemnation is an available remedy” where a landowner’s property is rezoned by the governing authority); Fulton County v. Wallace, 260 Ga. 358 ( 393 SE2d 241 ) (1990) (holding that inverse condemnation is not available remedy under facts of case; pretermits question of whether board’s failure to rezone to a constitutional classification as interpreted by trial court could ever amount to inverse condemnation under Georgia law), overruled on other gro

2013See Mayor & Aldermen of Savannah v. Savannah Cigarette & Amusement Svcs., 267 Ga. 173, 174 ( 476 SE2d 581 ) (1996) (“[e]ven assuming that inverse condemnation is an available remedy” where a landowner’s property is rezoned by the governing authority); Fulton County v. Wallace, 260 Ga. 358 ( 393 SE2d 241 ) (1990) (holding that inverse condemnation is not available remedy under facts of case; pretermits question of whether board’s failure to rezone to a constitutional classification as interpreted by trial court could ever amount to inverse condemnation under Georgia law), overruled on other gro

2013Thus, the “takings” claim was a constitutional takings claim, and not an inverse condemnation claim as the city’s action “created neither a nuisance nor a trespass upon [Lamar Advertising’s] property.” See Mountain Creek Estates, supra, 280 Ga. at 857 (1). 4 The Supreme Court of Georgia has questioned whether inverse condemnation is an available remedy in a zoning case, and these decisions support our conclusion here.

2013White & Assosc. v. Gunnells, 263 Ga. 360, 362 ( 434 SE2d 477 ) (1993). 5 “An inverse condemnation claim arises when the governmental entity creates a condition on private property . . . that amounts to a taking without compensation.” (Punctuation and footnote omitted.) Solid Equities, Inc. v. City of Atlanta, 308 Ga. App. 895, 897 (2) ( 710 SE2d 165 ) (2011).

2013White & Assosc. v. Gunnells, 263 Ga. 360, 362 ( 434 SE2d 477 ) (1993). 5 “An inverse condemnation claim arises when the governmental entity creates a condition on private property . . . that amounts to a taking without compensation.” (Punctuation and footnote omitted.) Solid Equities, Inc. v. City of Atlanta, 308 Ga. App. 895, 897 (2) ( 710 SE2d 165 ) (2011).

2004(Punctuation omitted.) Lakeside Investments Group v. Allen, 253 Ga. App. 448, 450 (1) ( 559 SE2d 491 ) (2002).

2004(Punctuation omitted.) Lakeside Investments Group v. Allen, 253 Ga. App. 448, 450 (1) ( 559 SE2d 491 ) (2002).