City of Atlanta v. Kleber

In City of Atlanta v. Kleber, 285 Ga. 413, 416 (677 SE2d 134) (2009), the Supreme Court of Georgia addressed the issue of continuing versus permanent nuisances. Kleber and his neighbors sued the city and Norfolk Southern railroad because their land flooded repeatedly due to an undersized culvert pipe. The court held that the landowners' complaints about the "mere presence" of an improperly installed culvert and pipe were complaints about a nuisance that was permanent in nature and presently barred by the statute of limitation. The landowners' complaints about the maintenance of the culvert and pipe over a period of years was a continuing nuisance claim, but was unsupported by any evidence in the record. According to the Supreme Court, these classifications of permanent versus continuing nuisance claims are supported by the Restatement of Torts (Second) 930. Comment (c) observes that "damage to neighboring landowners is frequently incident to the construction and operation of establishments employed in necessary public service. . . . A municipal electric plant sends smoke and fumes into homes and factories." According to the Restatement, if the damage results from a feature that could be averted at slight expense, successive actions are available, but if the damage results from "some substantial and relatively enduring feature of the plan of construction or from an essential method of operation," then the damage cannot usually be abated by injunction and the injured person should be compensated completely for past and future invasions. Id. at 417.