This case revolves around the legal effect of the property interests of lakefront property owners on the decision whether to breach or to repair the earthen dam that impounds the lake, as ordered by the Environmental Protection Division of the Georgia Department of Natural Resources, acting pursuant to the Georgia Safe Dams Act, OCGA § 12-5-370 et seq. Forsyth County appeals the judgment entered against it in a lawsuit brought by the lakefront homeowners in which the trial court directed a verdict that Forsyth County owned the earthen dam, and the jury, given the choice of requiring the County to repair the dam or to breach the dam, returned a verdict requiring the County to repair the dam. The earthen dam was built several decades ago by a private entity in order to create a 21-acre lake which the developer bordered with residential homesites that were sold pursuant to a subdivision plat showing the lake area. After the earthen dam was built, Forsyth County paved a road across the top it in the mid-1970s. In 1998, the Environmental Protection Division EPD sent notice of the dam’s reclassification to “high-hazard” status to the county as a “partial owner of the dam.”1 In 2002, the EPD director, concerned the dam was in danger of sudden and complete failure, directed the dam’s owners to lower the lake level by 10 feet, decide whether to breach or repair the dam, and submit plans to EPD pursuant to the owners’ decision to breach or to repair the dam to EPD. The County took immediate emergency action to alleviate the danger by digging a trench perpendicular to the dam across the county’s road, which allowed the level of the lake to be reduced, and closed the county road. Those designated as owners of the dam appealed the EPD order to an administrative law judge who concluded the EPD had established that the County was an owner of the dam.2 The County appealed the ALJ’s decision to superior court which affirmed the decision in an order filed January 16, 2003.
In February 2002, a month after the trench across the dam was dug and the road closed, the lakefront homeowners filed the instant action in which they sought, among other things, a declaratory judgment that the County owned the dam and a writ of mandamus ordering the County to assume ownership, repair, and maintenance of the dam. After the superior court affirmed the ALJ’s decision finding the County to be an “owner” of the dam under the Safe Dams Act, the County filed in the instant action a counterclaim and cross-claim for declaratory judgment to determine the County’s rights and obligations with respect to the homeowners should the County breach the dam pursuant to the EPD order.3 At the close of the evidence, the trial court directed a verdict against the County with regard to ownership of the dam and submitted to the jury the question of whether the County should be required to repair the dam or be permitted to breach the dam. Following the jury’s verdict that the dam should be repaired, the superior court issued a judgment in which it ordered the County to “rebuild and repair Pine Lake Dam in accordance with current EPD requirements so that the Dam will impound a lake with an elevation, at normal pool, of 1140 MSL and will impound a lake of approximately 21/-acres.” The County was also ordered to pay nearly $79,000 to the lakefront homeowners for the expenses of litigation, including attorney fees. The County appeals, contending the trial court erred in directing a verdict on the question of the ownership of the dam, in making several evidentiary rulings, and in ordering the County to pay appellees’ expenses of litigation. The homeowners have filed a cross-appeal in which they contend the judgment of the trial court requiring an impounded pool with an elevation of 1140 feet MSL “mean sea level” does not conform to the jury verdict which they allege requires the dam to impound a pool with an elevation of 1141feet MSL.
