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



      1
          Both easements grant similar rights.
                                         2
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

                                       3
      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.
                                       4
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 SE 1028) (1906).
                                       5
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.




                                        6
       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.

                                               2
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

                                        3
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

                                         4
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

                                          5
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).

                                            7
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

                                        8
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.

                                                 9
      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.




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