1

In the Supreme Court of Georgia

Decided: September 19, 2023

S22G0874. WISE BUSINESS FORMS, INC. v. FORSYTH 

COUNTY et al.

LAGRUA, Justice.

We granted certiorari in this case to clarify the standards for 

determining when a claim for inverse condemnation by permanent

nuisance accrues for purposes of applying the four-year statute of 

limitation set forth in OCGA § 9-3-30 (a).1 For the reasons that 

follow, we conclude that, although the Court of Appeals articulated

one of the correct standards to apply in determining when the 

applicable statute of limitation begins to run on a permanent 

nuisance claim, the Court of Appeals failed to construe the 

————————————————————— 1 OCGA § 9-3-30 (a) provides that “[a]ll actions for trespass upon or 

damage to realty shall be brought within four years after the right of action 

accrues.” 
2

allegations of the complaint in the light most favorable to the 

plaintiff as the non-moving party; erred in concluding there was only 

one harm in this case that was “immediately observable” to the 

plaintiff when the nuisance at issue was completed; and erred in 

concluding that the statute of limitation had run on the plaintiff’s 

claim as a matter of law. Therefore, we must reverse. 

1. Pertinent Facts and Procedural History

(a) Factual background

The relevant facts, as summarized by the Court of Appeals

from the allegations in the complaint, are as follows: 

[Wise Business Forms, Inc. (“Wise”)] is the nation’s 

fourth largest printer of business forms, and is 

headquartered in Forsyth County. The property used for 

its headquarters was purchased in three separate 

acquisitions beginning in 1984 and running through

1996.

A 36-inch metal pipe (“Subject Pipe”) runs 

underneath Wise’s property and has been in place since 

1985. Approximately twenty-five feet of the drainage pipe 

extends into a two-acre tract of land west of Wise’s 

property (“Corner Tract”). The Corner Tract is 

undeveloped and forms a natural detention basin into 

which a large vertical concrete drainage structure with a 
3

large stormwater outlet pipe (“Feeder Structure”) was 

constructed. Wise asserted in its complaint that water 

from the Feeder Structure on the Corner Tract was 

designed to flow through the Subject Pipe underneath 

Wise’s property.

The McFarland Parkway Widening Project 

(“McFarland Parkway Project”) extended McFarland 

Road from two lanes to four lanes and was completed in 

2000. Wise alleged in its complaint that this project 

resulted in a substantial increase of the surface and 

stormwater runoff flowing underneath its property. 

Specifically, Wise asserted that[,] as part of the project[,] 

the Appellees designed and installed a sophisticated 

stormwater drainage system, while failing to provide 

detention facilities to mitigate the increased runoff, and 

that the drainage system ultimately channeled water to 

the Corner Tract and subsequently through the Subject 

Pipe running underneath Wise’s property.

On June 27, 2016, Wise noticed the first signs of a 

sinkhole on its property. Wise subsequently conducted a 

test to determine the origin of the majority of water 

flowing through the Subject Pipe. Wise asserted that by 

tracking marked ping pong balls through the drainage 

system, it was able to determine that the “bulk of the 

stormwater” that flowed through the Subject Pipe derived 

from the catch basins and storm sewers built as part of 

the McFarland Parkway Project. Wise also had the 

Subject Pipe inspected using a robotic vehicle and 

discovered deterioration and erosion within the pipe.
4

Wise Business Forms, Inc. v. Forsyth County, 363 Ga. App. 325, 326-

327 (810 SE2d 894) (2022). 

(b) Trial court proceedings

On October 25, 2020, Wise filed a complaint against Forsyth 

County (the “County”) and the Georgia Department of 

Transportation (the “DOT”) (collectively “Appellees”) in the Superior 

Court of Forsyth County, raising claims for per se taking of Wise’s 

property, inverse condemnation by permanent nuisance, attorney 

fees under OCGA § 13-6-11, and violation of 42 USC § 1983. Wise 

amended its complaint to add a claim for inverse condemnation by 

abatable nuisance on February 8, 2021.

In support of Wise’s claims, Wise alleged, among other 

allegations, that the increase in the impermeable surface when 

McFarland Parkway was widened and the drainage system installed 

by Appellees as part of that project “deliberately channeled” 

stormwater runoff into the Subject Pipe—constituting a “continuing 

trespass”—and over time, the increased flow and velocity of water 
5

running through the underground pipe eroded the pipe and 

surrounding soil, ultimately causing a sinkhole. As for the resulting 

physical harms to Wise’s property, Wise alleged that (1) the “first 

visible sign” of the sinkhole occurred on June 27, 2016; (2) Wise 

discovered “serious deterioration” of the underground pipe in 

September of 2016 after deploying a robotic vehicle; and (3) this 

deterioration was “the product of hidden abrasion, corrosion, and 

erosion over the years caused by the increased volume and velocity 

of stormwater runoff” driven through the pipe by the drainage work 

completed for the McFarland Parkway Project. In furtherance of 

these allegations, Wise sought compensation “for the diminished 

value of its property, for the deprivation of the full use and 

enjoyment of its property, for the cost of repairs required to remedy 

the situation, and for the continuing damage to and loss of use of 

portions of its property caused by [Appellees],” as well as “the 

expense of the future repair and maintenance of the Subject Pipe 

traversing the Wise Property.” 
6

Contemporaneously with the filing of Appellees’ answers and 

before discovery commenced in this case, Appellees separately 

moved to dismiss Wise’s complaint on multiple grounds, including 

Wise’s failure to file its complaint within the four-year statute of 

limitation period under OCGA § 9-3-30 (a). In furtherance thereof, 

Appellees asserted that Wise’s inverse-condemnation-bypermanent-nuisance claim—the only claim at issue in this appeal—

accrued in 2000 when the alleged increase in the volume and 

velocity of the stormwater passing through the Subject Pipe began, 

and thus, this claim was barred by the applicable statute of 

limitation. 

On March 15, 2021, the trial court granted the motions to 

dismiss. In dismissing the complaint, the trial court concluded as 

follows: (1) Wise’s per se taking claim “accrued at the time of the 

road widening project” in 2000 and was “barred by the four-yearstatute of limitation governing trespass to real property;” (2) Wise’s 

claim for inverse condemnation by abatable nuisance “provide[d] no 
7

basis for relief” because Wise did not claim that Appellees were 

“responsible for maintaining the pipe at issue;” (3) Wise’s claim 

premised on 42 USC § 1983 and its derivative claim for attorney’s 

fees and expenses pursuant to OCGA § 13-6-11 failed as matter of 

law; and (4) Wise’s inverse-condemnation-by-permanent-nuisance 

claim, while timely,2 was nevertheless “subject to dismissal for 

[Wise’s] failure to attach to its complaint the expert affidavit 

required by OCGA § 9-11-9.1 (g) (21).” Wise appealed the trial 

court’s dismissal of its inverse-condemnation-by-abatable nuisance 

and inverse-condemnation-by-permanent nuisance claims to the 

Court of Appeals. 

(c) The Court of Appeals’ Decision

————————————————————— 2 The trial court concluded that the four-year statute of limitation under 

OCGA § 9-3-30 (a) did not begin to run on this claim until June 27, 2016 when 

Wise discovered the sinkhole on its property. While Wise did not file its 

complaint until October 25, 2020—more than four years after the trial court 

concluded the statute of limitation had started to run—the trial court observed 

that this Court’s Declarations of Judicial Emergency order tolled the “statutes 

of limitation” and rendered the filing of the complaint timely. 
8

The Court of Appeals affirmed the trial court’s dismissal of 

Wise’s inverse-condemnation-by-abatable-nuisance claim on the 

basis that “Wise failed to allege facts demonstrating that Appellees 

had a duty to maintain the Subject Pipe, as required for a claim of 

abatable nuisance.” Wise, 363 Ga. App. at 329 (2). The Court of 

Appeals also affirmed the trial court’s dismissal of Wise’s inversecondemnation-by-permanent-nuisance claim, noting that, although 

“the trial court erred in finding that Wise’s complaint required an 

expert affidavit pursuant to OCGA § 9-11-9.1,”3 Wise’s claim for 

inverse condemnation by permanent nuisance was “nonetheless 

properly dismissed, as it was barred by the four-year statute of 

limitation” under OCGA § 9-3-30 (a). Id. at 327-328 (1). 

In concluding that Wise’s inverse-condemnation-bypermanent-nuisance claim was barred by the four-year statute of 

————————————————————— 3 In reaching this conclusion, the Court of Appeals explained that, 

because Wise’s claim for inverse condemnation by permanent nuisance was 

“premised on the Appellees’ intentional acts giving rise to an alleged 

nuisance”—not on claims of negligence—“the requirement of OCGA § 9-11-9.1 

to file an expert affidavit when a claim alleges damages for professional 

negligence [wa]s inapposite here.” Id. at 327-328 (1).
9

limitation under OCGA § 9-3-30 (a), the Court of Appeals held that, 

“[i]n claims for permanent nuisances, ‘a plaintiff is allowed only one 

cause of action to recover damages for past and future harm. The 

statute of limitation begins to run against such a claim upon the 

creation of the nuisance once some portion of the harm becomes 

observable.’” Wise, 363 Ga. App. at 328 (1) (quoting Oglethorpe 

Power Corp. v. Forrister, 289 Ga. 331, 333 (2) (711 SE2d 641) (2011)). 

The Court of Appeals then concluded that 

the construction of the stormwater drainage system by 

the Appellees to divert th[e] increased stormwater runoff 

through the Subject Pipe, and the alleged dramatic 

increase in stormwater runoff being driven into the 

Feeder Structure, would have been observable. Thus, as 

a permanent nuisance which had some portion of the 

harm immediately observable, the statute of limitation 

began in 2000 when the McFarland Parkway Project was 

complete.

Id.

We granted Wise’s petition for certiorari and asked the parties 

to address whether the Court of Appeals correctly affirmed the 

dismissal of Wise’s inverse-condemnation-by-permanent-nuisance 
10

claim because it was barred by the statute of limitation set by OCGA 

§ 9-3-30 (a). We did not grant certiorari on the Court of Appeals’ 

ruling that Wise’s claim for inverse condemnation by permanent 

nuisance did not require an expert affidavit under OCGA § 9-11-9.1 

or on its ruling that Wise’s inverse-condemnation-by-abatablenuisance claim was properly dismissed by the trial court.

2. Analysis

OCGA § 41-1-1 defines a “nuisance” as 

anything that causes hurt, inconvenience, or damage to 

another and the fact that the act done may otherwise be 

lawful shall not keep it from being a nuisance. The 

inconvenience complained of shall not be fanciful, or such 

as would affect only one of fastidious taste, but it shall be 

such as would affect an ordinary, reasonable man.4 

————————————————————— 4 See also, e.g., City Council of Augusta v. Lombard, 101 Ga. 724 (28 SE 

994) (1897) (holding that the city’s removal of water gates which controlled 

water flowing through a series of canals, causing “large and unusual 

quantities of water” to flow “upon the premises of the plaintiff” in “certain 

times of high water,” constituted a nuisance); Cox v. Cambridge Square Towne 

Houses, Inc., 239 Ga. 127 (236 SE2d 73) (1977) (holding that an apartment 

owner’s installation of a storm drain system in an apartment complex, which 

“greatly increased the flow of surface waters across [the adjacent landowner’s] 

land” constituted a nuisance); City of Atlanta v. Kleber, 285 Ga. 413, 413 (677 

SE2d 134) (2009) (holding that an improperly maintained city drainage pipe 

and culvert—resulting in the flooding of the plaintiffs’ property during heavy 

rains—constituted a nuisance); Forrister, 289 Ga. at 331-332 (holding that 

gas-fired combustion turbines in a power plant, which were turned on “when 
11

Generally, nuisances are classified as “abatable” or “permanent.” 

An “abatable” nuisance is one where the harm to a plaintiff’s 

property “results from some minor feature of construction or

management” or “from an improper and unnecessary method of

operation,” which can “be averted at slight expense” or readily

enjoined. Forrister, 289 Ga. at 333-334 (2) (citations and 

punctuation omitted). A “permanent” nuisance is “one whose 

character is such that, from its nature and under the circumstances 

of its existence, it presumably will continue indefinitely.” Id. at 333 

(2). Determining whether a nuisance is abatable or permanent will 

typically dictate “the manner in which the statute of limitations will 

be applied.” Id. 

Here, Wise asserted claims against Appellees for both inverse 

condemnation by abatable nuisance and inverse condemnation by 

permanent nuisance. However, as noted above, this appeal concerns 

—————————————————————

customers demand[ed] high amounts of electricity” and which caused 

“excessive noise” and “vibrations,” constituted a nuisance). 
12

only Wise’s claim for inverse condemnation by permanent nuisance, 

so we will limit our analysis to when the statute of limitation starts 

to run on the permanent nuisance claim. See OCGA § 9-3-30 (a) 

(“[a]ll actions for trespass upon or damage to realty shall be brought 

within four years after the right of action accrues”).

In concluding that Wise’s permanent nuisance claim was 

barred by OCGA § 9-3-30 (a), the Court of Appeals relied on a 2011 

case from this Court, in which we explained that, when a nuisance 

is “considered permanent,” a “plaintiff is allowed only one cause of 

action to recover damages for past and future harm,” and “the 

statute of limitation begins to run against such a claim upon the 

creation of the nuisance once some portion of the harm becomes 

observable.” Forrister, 289 Ga. at 333 (2). However, this language

from Forrister is imprecise because it does not explain that this 

standard will not apply in all permanent nuisance cases. 

Permanent nuisance cases vary in relation to when the alleged 

harm to a plaintiff’s property caused by the nuisance becomes
13

“observable” to the plaintiff. Forrister, 289 Ga. at 333 (2). In some 

cases, the harm to the plaintiff’s property is immediately observable 

“upon the creation of the nuisance.” Id. For example, where a 

landowner or governmental agency “erects a harmful structure such 

as a bridge or conducts a harmful activity such as opening a sewer 

that pollutes a stream,” and it is immediately obvious that the 

structure or activity interferes with the plaintiff’s interests, the 

plaintiff must file “one cause of action for the recovery of past and 

future damages caused by [the] permanent nuisance” within four 

years of the date the structure is completed or the harmful activity 

is commenced. Id. at 333-336 (2) and (3) (citing Restatement 

(Second) of Torts §§ 899 and 930). Phrased another way, where the 

“construction and continuance” of the permanent nuisance at issue 

is “necessarily an injury, the damage is original, and may be at once 

fully compensated. In such cases[,] the statute of limitations begins 

to run upon the construction of the nuisance.” City Council of 

Augusta v. Lombard, 101 Ga. 724, 727 (28 SE 994) (1897). 
14

In other permanent nuisance cases, the harm to the plaintiff’s 

property is not “observable” to the plaintiff until later—sometimes 

years later. Forrister, 289 Ga. at 333 (2). This circumstance may 

arise when a structure is built or an activity is commenced that is 

not injurious in and of itself, but it becomes a “permanent and 

continuing nuisance” because of “some supervening cause[, like 

heavy rains], which produce[s] special injury at different periods.” 

Lombard, 101 Ga. at 727. In such cases, “a separate action lies for 

each injury thus occasioned, and the statute begins to run” from “the 

time when the special injury is occasioned.” Id. (citing Athens Mfg.

Co. v. Rucker, 80 Ga. 291 (4 SE 885) (1887) (“So this court has held 

that recovery might be had for injuries [to a plaintiff’s property] 

resulting from the erection and maintenance of a dam, in so far as 

such injuries occurred within four years preceding the bringing of 

the action, although the dam may have remained unchanged for 

twenty years.”)). 
15

There are also cases, however, where the permanent nuisance 

causes multiple harms to a plaintiff’s property—some of which are 

immediately observable upon the completion or construction of the 

nuisance and some of which are not observable until later—i.e., 

cases where the nuisance “is by its nature continuing” and “will 

continue indefinitely.” Cox v. Cambridge Square Towne Houses, 

Inc., 239 Ga. 127, 127-128 (236 SE2d 73) (1977). Pinpointing when 

the statute of limitation starts to run in such cases can be 

challenging—both for litigants and for factfinders. See id. (noting 

that confusion “has long existed as to when a nuisance, which is by 

its nature continuing, is considered permanent”). 

The circumstances at issue in Cox were strikingly similar to 

those in the present case.5 The subject nuisance was “by its nature 

————————————————————— 5 Cox involved an apartment owner’s installation of a storm drain system 

in an apartment complex. Id. More than four years after the drain system was 

installed, the adjacent landowner filed a lawsuit against the apartment owner, 

alleging that “the storm drain system greatly increased the flow of surface 

waters across his land and constituted a trespass” and that, “as a result of the 

storm sewer, whenever heavy rains fall, the sewer empties great quantities of 

water into a creek which runs through the [adjacent landowner’s] back yard,” 

causing “erosion of the banks of the creek” and “slowly washing away the 

[adjacent landowner’s] property.” Id. at 127-128. The trial court dismissed the 
16

continuing;” the lawsuit arising out of this nuisance was “filed more 

than four years after the creation of the nuisance;” and “the dispute 

center[ed] around whether the action for damages [was] barred by 

the statute of limitations.” Cox, 239 Ga. at 127. In Cox, the Court 

held that, where the subject nuisance “will continue indefinitely, 

the appellant has the right to elect to treat the nuisance as 

temporary and sue for all those damages which have occurred within 

the past four years, or he may elect to sue for all future damages as 

well and put an end to the matter.” Id. at 128 (citation and 

punctuation omitted). 

In other words, under Cox, when a nuisance “is by its nature 

continuing,” the plaintiff can elect to proceed in one of two ways. 

The first option would be to treat the nuisance as “temporary” and 

file a lawsuit to recover for “all those damages [or harms] which have 

—————————————————————

landowner’s complaint, concluding that the “claims were barred by the four 

year statute of limitation applicable to damage to realty.” Id. at 127. On 

appeal, this Court reversed the trial court’s ruling, concluding that “it was 

error to dismiss the suit” because the statute of limitations had not run on the 

landowner’s claims. Cox, 239 Ga. at 128.
17

occurred [to the plaintiff’s property] within the past four years.” 

Cox, 239 Ga. at 127-128. And, by implication, when the plaintiff 

elects to proceed in this manner and treats the nuisance as 

“temporary,” if the continuing nuisance causes additional harms to 

the plaintiff’s property in the future, the plaintiff can file another 

lawsuit seeking recovery for these additional harms, as long as the 

plaintiff initiates the lawsuit within four years from the occurrence 

of that future harm. See Lombard, 101 Ga. at 727 (in these cases, 

“every continuance of the nuisance is a fresh nuisance, for which a 

fresh action will lie,” and the cause of action “accrues at the time of 

such continuance” and “the statute of limitations runs only from the 

time of such accrual”). Alternatively, the plaintiff can elect to file a 

single lawsuit to recover for harms that occurred to the plaintiff’s 

property within the past four years and for all prospective harms 

that might occur to the plaintiff’s property in the future. See Cox, 

239 Ga. at 127-128. And, if the plaintiff elects to proceed in this 
18

manner, the plaintiff is limited to seeking those damages in one 

lawsuit. See id. 

In the present case, the nuisance complained of is the 

expansion of McFarland Parkway, the drainage system associated 

with the McFarland Parkway Project, and other construction 

aspects of this roadway expansion project, which was completed in 

2000. In its complaint, Wise alleged that, as a result of this 

nuisance, whenever significant rainfall occurs, Wise’s Subject Pipe 

is “deliberate[ly,] regular[ly,] and recurrent[ly]” used for “the 

disposal of unnatural volumes of stormwater runoff,” which has 

caused the gradual deterioration of the Subject Pipe, erosion of the 

surrounding soil, and the development of a sinkhole—harms of 

which Wise became aware on or after June 27, 2016. In sum, Wise 

has alleged a nuisance that “will continue indefinitely,” and because 

this alleged nuisance will continue indefinitely, Wise had the option 

either “to treat the nuisance as ‘temporary’ and sue for all those 

damages which have occurred within the past four years,” or to
19

“elect to sue for all future damages as well and put an end to the 

matter.” Cox, 239 Ga. at 128. And, here, Wise has elected to pursue 

the latter option and to sue both for those harms that occurred 

within the past four years, as well as all future harms, in one 

lawsuit. See id.

The Court of Appeals determined that Wise’s inversecondemnation-by-permanent-nuisance claim was barred because 

the only harm to Wise’s property was the “alleged dramatic increase 

in stormwater runoff,” which would have been “immediately 

observable” to Wise in 2000 when the McFarland Parkway Project 

was completed. Wise, 363 Ga. App. at 328 (1). See also Forrister, 

289 Ga. at 333 (2). However, this was not the only harm that Wise 

alleged, and Wise did not allege that it was observable to Wise in 

2000. Wise alleged that there were three related harms resulting 

from the permanent nuisance: (1) increased stormwater runoff, 

which arguably began when the McFarland Parkway Project was 

completed, but was not visible to Wise; (2) a sinkhole, which 
20

appeared in Wise’s parking lot in June of 2016; and (3) erosion of the 

Subject Pipe and surrounding soil which Wise observed in 

September 2016. And, because the Court of Appeals was “reviewing 

an order on a motion to dismiss,” it was required to “take the 

allegations in the complaint as true and resolve all doubts in favor 

of the [plaintiff].” See Norman v. Xytex Corp., 310 Ga. 127, 128 (1) 

(848 SE2d 835) (2020). 

[T]he well-established test that must be satisfied before a 

motion to dismiss can be granted is a demanding one: A 

motion to dismiss for failure to state a claim upon which 

relief may be granted should not be sustained unless (1) 

the allegations of the complaint disclose with certainty 

that the claimant would not be entitled to relief under any 

state of provable facts asserted in support thereof; and (2) 

the movant establishes that the claimant could not 

possibly introduce evidence within the framework of the 

complaint sufficient to warrant a grant of the relief 

sought. In reviewing such a motion, any doubts regarding 

the complaint must be construed in favor of the plaintiff. 

Id. at 130-31 (2) (citations and punctuation omitted). 

The Court of Appeals erred in failing to accept as true—as it 

was required to do—Wise’s allegations that the alleged harms were 

hidden from Wise’s view (i.e., not observable) until Wise discovered 
21

the sinkhole on its property in 2016. See Norman, 310 Ga. at 131 

(2). Accordingly, we conclude that the Court of Appeals erred in 

affirming the trial court’s dismissal of Wise’s inverse-condemnationby-permanent-nuisance claim on the basis that this claim was 

barred by the statute of limitation under OCGA § 9-3-30 (a). Thus,

we reverse the judgment of the Court of Appeals and remand the 

case to the Court of Appeals with direction to remand the case to the 

trial court to conduct further proceedings consistent with this 

opinion.

Judgment reversed and case remanded. All the Justices 

concur.