This dispute involves the rights and duties of property owners and the City of Atlanta “City” with respect to an underground drainage pipe. The underground pipe traverses several lots, including lots owned by John and Melissa Merlino and Jeff and Leigh Juliano. The Julianos’ property is located two lots directly downhill from the Merlinos’ property. Further downhill, the underground pipe eventually empties into the City’s sewer system. After the Julianos plugged the pipe at the property line between their own property and the lot that lies between their property and the Merlinos,’ the Merlinos experienced a series of floods on their property. The Merlinos then filed an action against the Julianos, the City, and several of their neighbors1 for declaratory judgment regarding the existence of an implied easement that governed the rights of the parties with respect to the pipe, and for nuisance and trespass. The Merlinos also filed a petition for a writ of mandamus in an attempt to force the City to repair, restore, or maintain the underground pipe. The trial court granted summary judgment to both the Julianos and the City on all counts, and the Merlinos appeal. For the reasons that follow, we affirm the grant of summary judgment to the City, but reverse the grant of summary judgment to the Julianos on the Merlinos’ claims for nuisance and trespass. “On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Citation and punctuation omitted. Home Builders Ass’n of Savannah v. Chatham County , 276 Ga. 243, 245 1 577 SE2d 564 2003; OCGA § 9-11-56 c.
Viewed in the light most favorable to the Merlinos, the record reveals that in 1991, the Merlinos purchased a home in the City. In 1992, they sought a building permit for certain home renovations. The City discovered that the location of the proposed construction was directly above an underground storm-drainage pipe, and denied the permit application. After notifying the Merlinos of the pipe, the City informed the Merlinos that they could still be granted a building permit if they rerouted the pipe outside of the footprint of their proposed home expansion. The Merlinos rerouted the pipe on their own property based on plans drawn up by their own contractors, and added additional inlets to their property that allowed more storm water to drain into the pipe. The Merlinos were granted a building permit, and they completed their home renovation.
