295 Ga. 16

FINAL C OPY S14A0114. FULTON COUNTY et al. v. CIT Y OF SANDY SPRINGS et a l. MELTON, Justice. On Decem

ber 9, 2010, th e C ity of Sandy Sp rings and t wo individ ual homeow ners, John E. Balsam and Jerry Burnstein (colle ctivel

y Sandy Springs) filed suit agains t Fulton Co unty, i ts Board of Com missio ners, and its D irect or of Public Wo rks. Spec ifica lly, Sa ndy Springs filed a

petitio n fo r de clara

tory judgment, mandamus, and injunctive relief in whic h it asked the trial court to determ ine that Fulton Countyretained ownership of and responsibility for two drainag e retent

ion ponds an d a dam

locate d within Sa

ndy Springs
. On June 21 , 2013, following a bench trial, the trial court f

ound in favor of Sa

ndy Springs , and Fulton County now appe als, c ontending t hat it i s prohibite d from maint aining

the det ention

ponds pursua

nt to the Georgia

Constitu tion. For the reasons set forth below, we affirm in part and re verse in part. The record shows tha

t, in 1976, the la

nd that is now Sand

y Sprin gs was
a part of unincorporated Fulton County. As a result of drai nage problems in

and around Arlingto n Cemetery, several homeow ners thre atened Fulton County with1 Both ea seme nts grant simil ar rights
.

2 a l awsuit. As part of the negotiations with the hom eowners, Fulton County agreed to constr

uct two d etenti on ponds on the grou nds of Arlington Cemetery. To accomplish this goal, Fulton County was granted two ea sements in order to build and maintain the water detention ponds. One e asement grants the "right to erect, construc t, rec onstruct, re place, remove, maintain and use on said described property a dam and det ention pond

as [Fulto n Count y] shall from ti me to time require as part of the public drainage system. " The easements "furthe r grant[ ] to [Fulton Co unty] t

he right o f ingress to a

nd egress from said d escribed
ease ment property ov er and across the lan d." 1 In a dditio n to these ease ments , Fulton County also con demned a smal l parce l of land t o enable construc tion of the ponds. On Dec embe r 1, 2005, Sandy Spr ings ca me into existe nce purs uant t o House Bill 37 of the G eorgia Genera l Assem bly. Som e tim e there after, homeow ners began experiencin g water problems wh ich were traced back to the detention ponds at Arl ington Ce metery. The dam and ponds were in disrepair and, apparently, had been wholly n eglec ted for a long period of time . Test

imony3

indicated that, u

ntil thedraina ge proble ms rec urred, b oth Sandy

Springs an d Fulton County may ha

ve forgotte n about the

existe nce of t

he drai nage pond s. It is undispu ted that Fulto n County sti ll owns the easements in question, and it has done nothing to t

ransfer them. Based

on these facts , the tr

ial cou rt gr an ted Sandy Spr

ings’s pet ition, finding that Fulton County retained an obligat ion to maintain the dam and pon ds it built . We agree. As a general rule, “the holder of an easem ent is responsible for repairs to the easement when the use of the ea sement i s impai red due t o lack o f maintenance.” Equitable Life Ass urance v. Tinsl ey Mil l Village , 249 Ga, 769, 771 (1) (294 SE2d

495) (1982). Moreover, the easem ents in question explicitly enable maint enanc e to be p erform ed by Ful ton County . Under these circum stance s, the tria

l court properly ruled tha t, as l ong as the

ease me nts are held b y Fult on Cou nty, it has th e respo nsib ility t o mainta in the m. Fulton County no nethel ess cont ends tha t it is pro hibited f

rom m aintaining the easements by Article IX, Se ction II, Paragraph III of the Ge orgia Constitut ion, whic h provides: (a) In addition to and suppl ementary of all powers p ossessed byor conferred up on any county, muni cipality, or any c ombina tion thereof , any county, municipali ty, or any c ombina tion ther eof

may2 Fulton Coun ty vehe mentl

y argue s that it s rights unde r the ea seme nt are not exclusive; there fore, it should not be exclusively re quired 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 maint ain thestructur es. 4 exerc ise the foll owing powers and pr ovide the fo llowing ser vices

. . . : (6) Storm w ater a

nd sewa ge coll ection

and disposal s ystems..

. . (b) Unless otherwis e provided by law, (1) No coun ty may exerc ise any of the powers listed in su bparag raph (a) of this Paragra ph or provideany se rvice l isted the rein insi de the boundari es o f any m

unicipa lity or a

ny other county e xcept by contract within the municipality or county affected. . . . Fulton County’ s relia

nce on t his constitutiona l provision is misp lace d. Ful t on County is not being

require d to provide

Sandy Spr

ings with a

n ongoing “sto rm water and sew age c ollect

ion and dis posal sy st em” in the absence of an intergover nmental contract. As it stand s right now, Fulton County continues to
own the ea seme nts. Until its e asem ent is le gally t ransfer red, termina

ted, or abandone d, Fulton County is mere ly bein g require d to maintain t hose structures it previ ously de cided t o build. 2 Fulton County a

lso argue s that it s ease ment to build and maint ain th e ponds and dam were automatically terminated by the c reati on of Sandy Springs. To support thi s argum ent, Ful ton County points to s tatutory pro visions which3 Although a n ease ment m

ay te rmina

te by ope ration of law wh en ther e has been a merger of the d ominant and serv ient estate, there has been no such merger in this c ase. “[W]he re ther e is a u nion of an a

bsolute title to and possession of the dominant and servient e states in the sam e person, it operate s to exti nguish any such ea seme nt absolut ely a nd foreve r, for the single reason that no man can have an easement in h is own land. [ Cits.]” (Punctua tion omi tted) Muscogee Mfg. Co. v. E agle & Phenix Mills , 126 Ga. 210, 218 -219 (54 SE 1028) ( 1906). 5 automaticallytransfer ownersh ip of roads and right s of way to ne w munci palitie s. See OCGA§ 36-36-7. As Fulton County concedes, howeve r, this statu torypr ovision doe s not enc ompass property intere sts gene rally . Indee d, property such as parks an d public bu ildings mus t be separately transf erred from
one entity to the other. See OC GA § 36-31-11.1. Fulton County has point ed out no statute or law which would indicate that a n easeme nt over private property autom atica

lly te rmina

tes when a cit

y has be en cre ated. 3 We note that, in

a supple menta

l brief, Fulton Co unty contend s that is has abandoned the easem ents. Fulton County did not raisethe issue

of aband onment in its enum erati ons before this Court , and it stres se d at oral argument tha t its content ions were c onstituti onally ba s ed. Fulton Co unty did rais e an abandonm ent

argument in a motion for summary judgment b elow. The trial court, in its orde r on the summ ary judgment motion, rejec ted Fulto n County’ s6

abandonm ent

argument. The

trial court did

so by ci ting Whipple v. Hatcher , 283 Ga. 3 09, 310 (65 8 SE2d 585) (2 008), for t he proposit

ion that “ an ea seme nt acqui red by gra

nt is not e xtinguishe d mere ly by non use; the re mus t be cl ear, unequi vocal, and dec isive e vidence of an inte

nt to aba ndon the e asem ent .” A t the subsequent bench trial, Fulton County did not a rgue abandonment. Therefore, to the extent th at it now attempts to ar gue that its past conduct constitutes abandonment, this issue is waived for purposes of this appeal. Under the present circum stances of this case , we find that Fulton County retai ns curre nt owners hip of and r esponsibi lity for the easements it holds o ver the dam and retention p onds located i n Sandy Spr ings. As stated previo usly, howeve r, any c oncomi tant re sponsibili ty continues only until the easements at issue are le gally transferr ed, terminated, or pro spectively abando ned
. As a result , to the ex tent tha

t the trial c ourt’s orde r may be rea d to indic ate tha

t Fulton County ha s to maintain t

he ea seme nts in per

petuity , it m

ust be re versed. Judgme ntaffirmed in part and rev e rsed in pa rt. All the Justi ces c oncur, except Benham , J., who dissents
.1 The majority opinion refe rences the fact that Fulton County agreed to construct the two detentio n ponds as

part of negotia

tions with c ertain homeowne rs who ha d threat ened a la wsuit against the County. The

factual findings set forth in the trial court’s judgme nt includes the finding that, as the result of a settlement of the homeowners’ demands, Fulton County was contractually

obligat ed to cons truct the

storm wat

er dete ntion fac ilities it bu

ilt on these easeme nts. The ju

dgment i s also bas ed, in par t, upon the

legal c onclusion

that Fult on County

is contractually oblig ated to maintain these facilities. In fa ct, the evidence shows no lawsuit was actually filed a

nd the resolution of the dispute was apparently a voluntary under

taking of Fulton County’s duty

or authority to provide such se rvices to the County and wa s not part of an enforceable agre ement or settlement. Further, the record re flects 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 re sidential subdivision impacted by the water r unoff problem. I see no evidenc e to support the legal conclusion that Fulton County assumed a contractual duty to maintain the f acilities it built on its easements. B ENHAM , Justic e, diss enting. As recit ed in the maj ority opinion, oneof the e asem ents in t his cas e granted Fulton Coun

ty the right to c ons truct the dam s and re tention p onds involved in this dis pute as “requi re[d] as part of th e public dr ainage system.” The trial court foun d in its orde r denyi ng summ ary judgment to Fulton County that both easements were gran ted f or this pu rpose. Both easements co nveyed the right to e nter onto the lan d to const ruct an d main

t a in these stor m water detention facil ities. 1 It appears that Fulton Coun ty under took the c onstructi on of these facilitie s pursuant to the authority granted to it b y what is now found in the 1983 Constitu

tion, Ar ticleIX, Se ction II, Paragra ph III (a) (6), to provide2 No evide nce was present ed that th ese dete

ntion ponds

provide s torm sewe

r servic e to any terr itory within unincorporated F ulton 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 storm wate r and se wage c ollect ion and dis p osal sys tems 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 fac ilities; in fact, the County is constitutionally prohibi ted f rom maintaining th ese facilities except by con tract with Sandy S prings or un less otherwise provided by law
. 2 See Ga . Const. of 1983, Art. IX, Sec. II, Pa

r. III (b) (1); Cobb County v. City of Smyrn a , 270 Ga. App. 471, 473 (1) (a) (606 SE 2d667) (2004) ( pursuant to this cons titution al provision, each local government is restricted to p rovidin g the services enumerated in itonly within th at gover nment ’s boundari es). Fur ther, pu rsuant to a local consti tutional

ame ndment

applic abl e specifical ly to Fult on County , the governmental authority of Fulton Co unty was limited in var ious ways (Ga. L. 1951, p. 828, ra

tified N ov. 4, 19 52, as amended by Ga. L. 1953 , Nov.-Dec. Sess ., p. 144 ), includin g prohib iting Ful ton Count y from rendering , among other things, sewage and drainage systems “inside a ny incorporated area

within its3

boundari es.” Id. at Sec. 1. The 1951 l ocal a mendm ent als o granted the General Assembly

authorit y to pre scribeby gene ral or spe cial l aws the powers of

Fulton County, and in 198 6, the General Assembly enacted a lo cal and special act that
co ntinued in force

and eff ect the limit ations upo n Fulton Cou nty’s governmenta l authoritythat were contained in the 1951 local constituti onal amendment. Ga. L. 1986, p. 44 42. The majority

opinion sta

tes tha t its holding only requir es Fulton County to retain respons ibility

for the easem ents and to maintain the structures it built until such tim e as the eas eme nts are “le gally t ransfer red, termina

ted, or prospectiv ely abandoned.” But this ignores th e reality that Sandy Sp rings, as evidenced by its c ompla int, disc laim s t he duty t o repai r or maintain t hese facil ities. I can t

hink of no way

for Fulton C ounty to un ilate rally term inate t

he
easements and transfer th em to Sandy Spr

ings sinc e Sandy

Springs doe s not want them. Further, the majority ignores the “C atch 22" in which Fulton County is place d by its ho lding wit h r espect t o term ination o r abandon ment o f the
ease ments
. As long as the Co unty is re qu ired to maintain the se facilities in workingorder, t

his effe ctivel

y prevents the C ounty from abandoning the
e asem ents. Even if

, as the trial c ourt rule d, more

than just Fulton Coun

ty’s4

continued nonuse of t

he ea seme nts is re qui red to show its express intent to abandon themin this c ase, requirin g the Cou nty to c ontinue t o use the

easements bymaint aining

themwould se em to prevent it from ever e xpressly

abandoning them. Most

importa ntly, t he ma jority o pinion al so i gno res the reality that requirin g Fulton Co unty to maintain th ese facilities does , indee d, effectively require the County to provide the very servic es that it is prohibit ed by la

w from providing. This is because it appea rs from the allega

tions in the

compl aint an d the recor d that the act of m aintaining the facilitie s Fulton County originally
con structe dto collect and control storm water runoff is synonymous with providingthe service of “sto rm water and sewage collection and dispo sal systems,” as that

term is used in the constitutional provision that now prohibits Fulton County f rom provi ding that

servic e. See

Ga. C onst. of

1983, Art. IX, S ec. II, Par. III (a) ( 6) and (b) ( 1). I agree that the crea tion of Sandy Springs did not automatically terminate these easements and that th e e asem ents were not tr ansferred to San dy Springs upon the ci ty’s creation . But th at is not the issue raise d by this c ase. The
easements simply permi t Fulton County to ente r onto theproperty owned by5

another to construct and mainta in the facilities it

built. By law, itis no long er permitted to provid e the storm water detention servi ces tha t these facil ities w ere built to provide. As with any contract, an ex press easement is to b e construed pursuant to its pla in language. See Irvin v . Laxmi , Inc ., 266 Ga . 204 (1) (46 7 SE2d 510) (1996). The e asem ents the msel ves do not r equireFulton County to construc t or maintain a

nyfacility at a

ll; they simply

provided the County with the legal right of a cces s, as wel l as right of use of the property, to fulfill the duty of providing th e stor

m sew er s ervice s it assu

med a t the ti me it

acquir ed thes e
ease ments
. The ea seme nts grant ed to Fult on County are m erely

permi ssive and not mandato ry, and the gr antee, F ulto n Coun ty, is n ot req uired to us e them. Compa re OwensHardware

Co. v. Walte rs , 210 Ga . 321 (80 SE2d 285) (19 54) (no duty is c ast upon t

he owne r of

an ea seme nt acquired by grant or de ed to use the easement as a condition to retaining his interest i n it). The major

ity re lies upon Equitable

Life As surance Societ y fo the U. S. v. Tinsley Mill Vi llage , 249 Ga. 7 69, 771 (1) (294 SE 2d 495) (1982), for the proposition

that Fulton Coun

ty, a s the hold er of

these easem ents, has a duty to repair them. But the Equitable casestands fo r the unremarkable pro position that the holder of a n ea seme nt, and n ot the ow ner of the property over whi ch the3 In the Equitable case, condominium homeowners who held an easement in a roa d 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 damag es from flooding they alleg ed was caused by negligent construction and maintenance of the culvert. The defendants contended the owners were the ones that were responsible for maintaining the culve rts be cause t hey were par t of th e easem ent ov er the c reek. T his C ourt n oted t hat al thou gh the holde rs of an e asement

are ge nerally responsi ble for ma

intaining their own

easeme nt, this rule did not apply

to bar the

homeowne

rs’ acti on beca

use they were no t suing f

or repa irs to thei r own easement but for damages ar ising from the creation of a nuisance c reated by the overflowing water from the creek. 249 Ga. a t 771. 6 ease ment crosse s, is re sponsiblefor ma king repairs to the

ease ment so that the holder of the easem ent may use

it. 3 Compa

re Puryear v. Cle

ments , 53 Ga. 232 (1874) (t he p laintiffs, h olders of a pr escriptive easement to u se a private way that defenda

ntestabl ished a

ndpaid for, could not require the defe ndant to repair
a caus eway for the plaintiffs’ benefit but the defendant could not prevent th e plainti ffs from

rebuilding it for themsel ves). That is not the is sue in this case. Fulton County has no t sued the own er of the pro perty t o make

repair s to its own
ease ments ; Fulton Coun ty is not using the se easeme nts and, under the circumstances involved in this ca se, c annot berequire d to continue to us e them. Despite language to the contrary , the effect of the majority opinion is to requir e Fulton County to maintain the se facilit ies and thereby provi de storm water detention services to a territ ory that is not within unincorp orated Fulto n County, which the Coun ty is prohib ited by law to pro vide.4 See James W. Ely, Jr. & Jon W. Bruce, Repair, M aintenanc e, and Im

proveme nts – Rights and Duties in General , Law of Easements & Licenses in L and § 8:37 (2014). 7 It may be tha

t, as a general propositio n, the ho l der of a n ease ment w

ho constructs a

structur e on the prop erty ha s a duty to ma intain t

hat struc ture to t

he extent that the holder re mains liable for any nuis ance crea

ted by i t or for damages crea

ted by its fai lure even a fter the

holder c laim s it has a

bandoned the
easement. 4 Furthe r, municip alitie s in this St ate ha ve bee n held lia

ble for damages to propert

y arisi ng from improper mai ntenanc e of storm sewer s constructed as part of a drainage ea sement. See City of Atlanta v. W illiams , 218 Ga. 379 (128 SE2d 41) (1962) (finding the City o f Atlanta had a duty to maintain a drain age dit ch origina

lly buil t by Fulto n County b efore the area was incorpor atedinto the City of Atla nta sinc e it cl aime d a right t o use the ditch a nd
was thus liable to the adjoinin g landowner f or damage caused by overf low); City of Colleg e Park v. Pi chon , 217 Ga . App. 53 (456 SE2d 686) (1995) (af firmin g, in part, a n award of dam ages for

the creation of a nuisanc e by failure to m aintain
a draina ge ditch tha

t was pa rt of thecity’ s drainage system ). But t he plaintiffs in this c ase did

not see k dama

ges susta ined by a ny nuisa nce c reate d byFulton County’s failure to mainta in the facilities built

on the easements. Instead , they8

sought a d ecla ratory judgme nt that Fu lton Count y is re sponsiblefor repairing and maint aining th e storm

water detention structure s at issue in this case t o keep them working as storm s ewers , and a mandam

us order requiring Fulton County officials to do so. The uniq ue fac ts of this c ase proh ibit Fulton County f rom maint aining

these s tructure s beca

use, a s not ed above , as a practic al matter, to maintain these structu

r es is to s upply the

servic es the C ounty is pr ohibited by law from supplyin g. Their o nly func tion is to s upply stor m wat er coll ection

and disposal servic es. This is not t o say that Fulton County is barred from liability ford ama ges proximately cause d by any

nuisanc e cre ated by

its fai lure t o maintain the structures it built. See City of Atlanta v. W illiams , supra; City of College Park v . Pic hon , supra . But I b elieve it is im portant t o make

the distinct ion between potential li ability for damages created by maintaining a nuisance on an ea seme nt and the duty to ma intain s torm

sewer servic es that

the trial court’s judgment, and the majority opinio n, e ffectively re quire Fult on County to provideeven th ough it is l eg ally ba rred from

providing th ose services. While Sandy

Springs currently does not own ea seme nts to ent er onto th e p rivate property

on which t

he ponds a

re loca ted, th ere is nothing to pr eve nt i t5 Counsel for Sandy Springs state d at the trial court hearing that Fulton County had not offered to transfer the ease ments to Sandy Springs and had othe rwise failed to demonstrate a willingness to resolve the situation; but it also appears from statements of counsel and the re cord that Sandy Springs has de manded, in any e

vent, that Fulton County first undertake repairs and maintena nce to the dam and ponds, and s ince Fu lton County

denies it i s legal ly r

equired to perfor m the serv

ices the se faci lities per

form, it is reasona ble to ass ume the Cou

nty would voluntarily transfer

these easements even though it would not agr ee to undertake any maintena nce or r epairs to the fac ilities. Th e recor

d refle cts that, a

t the time it

constructed these facilities, Fulton County acquire d a small tract of property from one of the impacted homeowners by condemnation for

the purpose of containing occasional overf low of the adjoining retention pond. Noth

ing pre vents Sand

y Spr ings fr om acquir

ing this tr act, either, if ne cessar

y to enable i t to assume responsibility for providing storm sewer services to the area just as Fulton County was required to acquire it previously
. 9 from obtaining the necessary

easements. That is what Fulto n County did in order to fulfill

its obliga

tion to provi de storm

se wer facilit ies, a

nd now the obligati on to provide such services to territorie s within its incorporated limits is that of Sa

ndy Springs. Presum ably, Fulton Coun ty would be will ing to ass ign the ease ments to Sandy

Springs. 5 Altern ativel

y, San dySprings may enter into
an intergove

rnment al co ntract with Fu lton Coun ty to provi de storm sewer
s ervices to Sandy

Springs by

maint aining th ese fa ciliti es, a s conte mplat ed by Article IX, Sectio n II, Paragraph III (b) (1) of the Constitution. The solution to the problem

of storm wate r runoff i n the aff

ecte d incorpor ated te

rritory is one that Sandy Spr

ings mus tnow address since Fulton County is prohibi ted by law from doing so, w

hether or not it holds these easem ents which previo usly enabled it to prov ide the solut ion.10

In sum, an easement, in and of its elf, create s no obliga tion to use

the
easement. It sim

ply cre ates a

right to do s o. Theholder of an easement assumes the risk of liab ility for damages cau sed by a nuisanc e maintaine d on the prope rty, just as any owner of property doe s. But Fulton County’s pote ntia l liability to third pa

rties fo r dama ges resulting from its failure to m aintain structures it built o n these e asem ents, an issue not presented in this ca se, should not be confu sed wit

h its duty , now ex

tinguishe d by law , to cont inue to provide storm water detention s ervices to the affected hom eowners. This is an im portant legal distinctio n which I believ e the majority misses. Thus, I w ould reve rse the trial court ju dgment in its ent irety.

Decid ed Marc h 28, 2014. Mandam us. Fulton Superior C ourt. Be fore Judge Newkir k. Matthew C. Welch, Laura S. Lewis, Larry W. Ramsey , Jr., Kaye W. Burwell , for app ellant s. Wendal l K. Wil lard, L awrenc e D. Y oung , for app ellee s.