City of Sandy Springs v. Kaplan

The Court remanded the plaintiffs' nuisance and trespass case to the trial court for clarification of its order denying the city's motion for summary judgment.

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Ronnie and Richard Kaplan filed suit against Fulton County, the City of Sandy Springs and the Fulton County School District “FCSD”, seeking, inter alia, damages for nuisance and trespass stemming from the flow of water across their land, as well as mandamus to order defendants to repair a 36-inch drainage pipe under their driveway. The case focuses on the question of whether the city impliedly accepted an easement for the drainage pipe on the Kaplans’ property. The pipe was installed at the time of construction of the Kaplans’ subdivision. It is part of a storm drainage easement described on the final plat of the subdivision, which was approved by the County Board of Commissioners in 1981. However, no recorded conveyance of the easement exists.

The county and the city moved for summary judgment, asserting the easement for the 36-inch pipe was neither expressly nor impliedly accepted by either entity. The trial court granted summary judgment to the county on that basis, but denied the city’s motion for summary judgment.1 In so doing, the trial court concluded, with regard to the city’s motion: “Because of the combination of the permitting of the FCSD project with advance knowledge of the need for repair to the 36-inch pipe, the short-term control over the easement itself, and the repeated promises of repair, in this case the court finds that Sandy Springs has impliedly accepted liability for maintenance of the Kaplans’ 36-inch pipe. Sandy Springs’ motion for summary judgment is therefore denied.” It could be argued that the trial court intended to grant partial summary judgment in favor of the Kaplans, from the language stating that the trial court found Sandy Springs to have accepted liability, but nowhere in the order did the court state that it found in favor of the Kaplans. On the other hand, the trial court’s finding is immediately followed by a concluding sentence denying Sandy Springs’ summary judgment motion, and seems to support the denial of summary judgment.

City of Sandy Springs v. Kaplan

The Court remanded the plaintiffs' nuisance and trespass case to the trial court for clarification of its order denying the city's motion for summary judgment.

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