IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________________

No. 96-8116

_____________________________________

D. C. Docket No. 1:95-CV-2669

ARTHUR L. CROWE, JR., EDITH CROWE INGRAM,

ELEANOR INGRAM KIEFLING,

Plaintiffs-Appellants,

versus

DANIEL COLEMAN, CROWN CENTRAL PETROLEUM

CORPORATION, CROWN STATIONS, INC.,

Defendants-Appellees.

______________________________________

Appeal from the United States District Court

for the Northern District of Georgia

_______________________________________

(May 21, 1997)

Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

Plaintiffs-Appellants appeal from the district

court's denial of their motion for remand to the

Superior Court of Cobb County, Georgia and

from the grant of summary judgment for

Defendant Daniel Coleman. Because the district

court erred in concluding that Plaintiffs could
2

maintain no possible cause of action against

Georgia-resident Defendant Coleman, we

reverse the district court's denial of Plaintiff's

motion for remand. Because the case must be

returned to state court, we vacate the award of

summary judgment.

I. Background

Plaintiffs are Arthur Crowe, Jr., Edith Crowe

and Eleanor Ingram Kiefling. Together they own

a parcel of land in Georgia. Plaintiffs filed suit

in the Superior Court of Cobb County against

Defendants Crown Stations, Inc. ("Crown"), a

subsidiary of Crown Central Petroleum

Corporation, and Daniel Coleman. Jurisdiction

in state court was based on Coleman, who is a

Georgia resident. See O.C.G.A. § 9-10-30. In

their complaint, Plaintiffs alleged that Coleman,
3

as the current owner of the land adjoining

Plaintiffs' property, and Crown, as the former

owner, were liable for damages caused to

Plaintiffs by the escape of gasoline from

Defendants' property onto Plaintiffs' property.

Defendant Coleman was served with a copy of

the complaint on September 29, 1995. 

On October 20, Defendants filed a notice of

removal of the case to the District Court for the

Northern District of Georgia; Defendants alleged

that Georgia-resident Defendant Coleman had

been fraudulently joined to defeat diversity

jurisdiction. On November 13, Defendant

Coleman submitted a motion for summary

judgment, claiming that he did not cause

Plaintiffs' harm. In support of this motion,

Coleman submitted his own affidavit and the

affidavit of a Crown engineer. These affidavits

said that, although Crown formerly operated a
4

service station on the land adjacent to Plaintiffs'

property and stored petroleum in underground

storage tanks (USTs), those USTs were removed

from the ground before Coleman became the

owner of the property. Coleman swore in his

affidavit that, during his ownership, he "never

caused the release of any petroleum products at

the S. Atlanta Rd. property [that is, his own

land]." 

Also on November 13, Plaintiffs moved for

remand to state court, arguing that they stated

a valid claim for continuing nuisance against

Coleman under Georgia law. Defendants

responded by contending that Plaintiffs'

complaint only alleged a cause of action for

trespass and, if a nuisance had been alleged,

that Plaintiffs could succeed on no nuisance

claim against Coleman. On November 30,

Plaintiffs moved to amend their complaint to
5

state expressly a cause of action for nuisance.

On January 11, 1996, the district court issued an

order (1) denying Plaintiffs' motion to remand to

state court, concluding there was no possibility

Plaintiffs could establish a cause of action

against Coleman; (2) denying Plaintiffs' motion

to amend the complaint as futile; and (3)

granting Defendant Coleman's motion for

summary judgment. 

II. Discussion

A. The Law of Remand

In a removal case alleging fraudulent

joinder, the removing party has the burden of

proving that either: (1) there is no possibility

the plaintiff can establish a cause of action

against the resident defendant; or (2) the
6

plaintiff has fraudulently pled jurisdictional facts

to bring the resident defendant into state court.

Cabalceta v. Standard Fruit Co., 883 F.2d 1553,

1561 (11th Cir. 1989). The burden of the

removing party is a "heavy one." B, Inc. v.

Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.

Unit A 1981). 

To determine whether the case should be

remanded, the district court must evaluate the

factual allegations in the light most favorable to

the plaintiff and must resolve any uncertainties

about state substantive law in favor of the

plaintiff. Id. at 549. The federal court makes

these determinations based on the plaintiff's

pleadings at the time of removal; but the court

may consider affidavits and deposition

transcripts submitted by the parties. Id.

While "the proceeding appropriate for

resolving a claim of fraudulent joinder is similar
7

to that used for ruling on a motion for summary

judgment under Fed. R. Civ. P. 56(b)," id. at n.9,

the jurisdictional inquiry "must not subsume

substantive determination." Id. at 550. Over

and over again, we stress that "the trial court

must be certain of its jurisdiction before

embarking upon a safari in search of a judgment

on the merits." Id. at 548-49. When considering

a motion for remand, federal courts are not to

weigh the merits of a plaintiff's claim beyond

determining whether it is an arguable one under

state law. See Id.. "If there is even a possibility

that a state court would find that the complaint

states a cause of action against any one of the

resident defendants, the federal court must find

that joinder was proper and remand the case to

state court." Coker v. Amoco Oil Co., 709 F.2d

1433, 1440-41 (11th Cir. 1983), superseded by

statute on other grounds as stated in
8

Georgetown Manor, Inc. v. Ethan Allen, Inc., 991

F.2d 1533 (11th Cir. 1993). 

This consequence makes sense given the

law that "absent fraudulent joinder, plaintiff has

the right to select the forum, to elect whether to

sue joint tortfeasors and to prosecute his own

suit in his own way to a final determination."

Parks v. The New York Times Co., 308 F.2d 474,

478 (5th Cir. 1962). The strict construction of

removal statutes also prevents "exposing the

plaintiff to the possibility that he will win a final

judgment in federal court, only to have it

determined that the court lacked jurisdiction on

removal," see Cowart Iron Works, Inc. v.

Phillips Constr. Co., Inc., 507 F. Supp. 740, 744

(S.D. Ga. 1981) (quoting 14A C. Wright & A.

Miller, Federal Practice and Procedure § 3721),

a result that is costly not just for the plaintiff,
 Although Plaintiffs' complaint alleged a

trespass claim

against all Defendants, including Coleman,

Plaintiffs acknowledge

that they have no trespass claim against

Coleman under Georgia law because Coleman

did not cause the petroleum to be released onto

his property. So, Plaintiffs' argument for

remand relies solely on the nuisance claim. 

9

but for all the parties and for society when the

case must be relitigated. 

B. The Parties’ Arguments

Plaintiffs argue that removal of this case

was improper and that remand is required,

because Plaintiffs have stated a valid nuisance

claim against Defendant Coleman.1

 Defendants

make two arguments challenging Plaintiffs'

nuisance claim. First, Defendants argue that

Plaintiffs' complaint at the time of removal only

stated a claim for trespass and did not

expressly state a claim for nuisance. Second,
10

Defendants argue that, even if Plaintiffs'

complaint otherwise stated a cause of action for

nuisance, no possibility exists that Plaintiffs can

establish a nuisance claim against Coleman

under Georgia law. 

1. Adequacy of Plaintiffs' Pleading for

Nuisance Claim

Plaintiffs' complaint in this case was a

verified one, that is, under oath in respect to the

facts. The complaint says, among other things:

8.

The defendants have allowed the

escape of

gasoline from their property onto the

property

of the plaintiffs.

9.

The actions of the defendants in

allowing gasoline
11

to escape from their property and to

travel onto

the property of the plaintiffs is a

trespass for 

which damages may be awarded and

which 

should be permanently enjoined.

. . . 

12.

The plaintiffs have made demands

upon the 

defendants to remove from the

property of the

defendants the gasoline that they

have allowed

to trespass and contaminate the

plaintiffs' 

property and which continues to do

so. The

defendants' failure to so remove the

gasoline

and accompanying contamination

prevents the

property of the plaintiffs from being

salable.

(emphasis added).

When multiple defendants are named in a

complaint, the allegations can be and usually

are to be read in such a way that each defendant

is having the allegation made about him
12

individually. We also note that, under the liberal

requirements of notice pleading, "[n]o technical

forms of pleading . . . are required." See Fed. R.

Civ. P. 8(a); O.C.G.A. § 9-11-8(a)(2)(A). 

The word "trespass," although it can mean

a specific form of tort action, can also mean "a

wrongful entry upon the lands of another" or an

"encroachment or intrusion." The Random

House Dictionary of the English Language 2016

(2d ed. 1987). So, although Plaintiffs'

unamended complaint -- including paragraph 12

-- might be capable of more than one meaning,

the complaint can easily be read to be a sworn

statement that Coleman has allowed gasoline

from his land to intrude wrongfully (and to

continue to intrude) on Plaintiffs' property and

to contaminate Plaintiffs' land. Once more, a

plaintiff seeking to have his case remanded to
13

state court is to be given the benefit of every

reasonable inference in his favor. 

2. Nuisance Claim Under Georgia Law

We now must decide whether the facts

alleged in Plaintiffs' complaint state even an

arguable cause of action under Georgia law.

The answer is "yes." 

Defendants contend that Georgia law

creates no cause of action against a landowner

for the failure to abate a continuing nuisance

caused by his property where the landowner did

not create the nuisance: again, no one claims

that Coleman caused gasoline to spill onto his

land. And, Georgia case law may be in conflict

on this issue. But, at this point in the

procedural history of the case -- that is, on a
14

motion for remand, our analysis (as well as the

district court's) must be limited to determining

whether Plaintiffs have even an arguable claim.

So, any ambiguity or doubt about the

substantive state law favors remand to state

court. 

Section 41-1-5(a) of the Georgia Code

provides: "The alienee of a person owning

property injured may maintain an action for

continuance of the nuisance for which the

alienee of the property causing the nuisance is

responsible." The statute provides no guidance

about whether an alienee, such as Coleman,

may be held responsible for a nuisance where

he engaged in no act -- in this case, the storage

of petroleum -- which initially caused the

nuisance if he, after notice, refuses to abate the

continuing nuisance: in this case, petroleum

seeping from his land onto adjoining land. The
 In their brief, Defendants cite the Georgia

Supreme Court case of Cox v. Cambridge

Square Towne Houses Inc., 239 Ga. 127 (1977),

for the proposition that "a defendant must

engage in some act or operation which

continues a nuisance in order to be liable." In

Cox, the plaintiff sued the owner of adjoining

property; the defendant had installed the storm

sewer that was the subject of the nuisance

claim. Cox did not involve a suit against an

alienee who owned property after the creation of

the nuisance; so the court did not decide the

issue.

15

parties point to no Georgia Supreme Court case

that has decided the issue.2

Each party relies on a Georgia Court of

Appeals case to support its argument.

Defendants point to C&S Trust Co. v. Phillips

Petroleum Co., 385 S.E. 2d 426, 428 (Ga. App.

1989), where the court rejected the plaintiffs'

nuisance claim against the subsequent owner of

adjoining property when that adjoining property

was already contaminated and its subsequent

owner did not contribute to the contamination.

Plaintiffs point to Hoffman v. Atlanta Gas Light
 We do not reject the proposed distinctions.

We accept that they may possibly be

appropriate; but, more important, we do not see

them as doubtlessly correct either. For

example, Hoffman never seems to reply

completely on some contract concept to

support the cause of action allowed in that

case: a nuisance claim against the property

owner who created no contamination, but

whose property was the source of the

contamination of his neighbors’ -- the plaintiffs

-- land.

16

Co., 426 S.E. 2d 387, 391 (Ga. App. 1992), where

the court permitted a nuisance claim where the

defendant did not cause the initial

contamination of the defendant's land, but

where the preexisting contamination of the

defendant's land continued to migrate onto the

plaintiffs' property. 

On the face of these opinions, there appears

to be a conflict on this issue in the Georgia

appellate decisions. Defendants, and Judge

Roney in his dissent, point to factors which

might distinguish this case from Hoffman.

3

 If

this case were properly before the district court
17

(and this court) under original diversity

jurisdiction, we would be obligated to predict

how the Georgia Supreme Court would rule on

this issue or to certify the question to the

Georgia Supreme Court. For purposes of

determining whether this case should be

remanded to state court, however, the inquiry

by federal judges must not go so far:

This is an Erie problem in part, but only

part. In

the usual diversity situation a Federal

Court, no

matter how difficult the task, must

ascertain (and

then apply) what the state law is. . . . But

here the

question is whether there is arguably a

reasonable

basis for predicting that the state law

might impose

liability on the facts involved. If that

possibility 

exists, a good faith assertion of such an

expectancy

in a state court is not a sham, is not

colorable and

is not fraudulent in fact or in law.
18

Bobby Jones Garden Apartments v. Suleski, 391

F.2d 172, 176-77 (5th Cir. 1968) (citations

omitted). In this case, the arguable confusion in

Georgia law itself supports remanding this case

to state court. See Parks, 308 F.2d at 477

(noting in fraudulent joinder case that, "doubtful

issues of law due to absence of definite

pronouncements by the state supreme court are

to be tried in the court having original

jurisdiction of the case and are not to be

determined in a removal proceeding."). 

In the present case, neither the words of

Plaintiffs' verified complaint nor -- as we will

discuss more -- the remainder of the record

before the district court forecloses the

possibility that petroleum, which had already

leaked onto Defendants' property from the

removed tanks, has continued to seep onto

Plaintiffs' property during Coleman's ownership
19

of the former service station site. Unlike the

complaint, Defendant Coleman's answer is not

under oath; but he denies wrongdoing. His

denial, of course, does nothing to undercut the

fact that plaintiffs have set out an arguable

nuisance claim against him; the answer, at

most, shows a controversy that needs to be

resolved. 

3. Defendants' Affidavits

Defendants also submitted affidavits which

say that -- before Coleman's ownership of the

former service station site -- the USTs were

removed from the ground, and no petroleum

products have been since stored or sold at the

property. In addition, Coleman specifically says

in his affidavit: "I have never caused the

release of any petroleum products at

[Defendants'] property." (emphasis added).
 Based on the docket entries, we suppose

that a hearing at which the parties were allowed

to argue was held on the motions in the district

court. We know that when motions are orally

argued (even when the pertinent hearing is for

argument only and not one for the presentation

of evidence), important things sometimes

happen which impact on the factual record -- for

example, the judge while interrogating the

lawyers obtains stipulations, concessions, and

20

Coleman submitted the affidavits in support

of his motion for summary judgment before the

district court ruled on Plaintiffs' motion for

remand. Although submitted in support of a

motion for summary judgment, Defendants'

affidavits were probably properly considered by

the district court on the question of remand;

and we too will take them into account in

deciding the limited question of whether a

possibility exists that Plaintiffs have stated a

nuisance cause of action against Coleman. See

Cabalceta, 883 F.2d at 1561. 

Seemingly on the basis of Defendants'

affidavits4

, the district court found and
so on. But in this case, no one has said the oral

argument in district court amended the paper

record. And the transcript of the hearing in the

district court is not part of the appellate record.

So, we believe we are looking at the same

factual record that was before the district court.

 The district court might have used "release"

to mean no release of gasoline onto the

Defendants' own land. This fact is undisputed.

The district court may then have gone on to

conclude that Georgia law allows no cause of

action against Coleman even if gasoline, which

had been released into the soil at the service

station site before Coleman owned it, had

seeped

onto Plaintiffs' land after Coleman bought the

former service station site. This approach

would be erroneous, because it would entail a

decision about Georgia law when the state's

precedents are not plainly consistent.

21

concluded it to be undisputed that: "Since at

least May 14, 1991, there have been . . . no

petroleum releases from the site" (emphasis

added). If "release," as used by the district

court, means no seepage or leakage onto

Plaintiffs' land,5

 we cannot see how that fact can

be said to be undisputed from the paper record

before the district court and us. Coleman's
22

affidavit and Plaintiffs' sworn complaint seem to

leave open -- as completely disputed -- whether

gasoline from Coleman's land (after he became

the landowner) has intruded, and continues to

intrude, onto Plaintiffs' land. By the way, we

note that Plaintiffs -- before the district court

ruled on the summary judgment motion -- filed,

pursuant to the district court's local rules, a

"Statement of Material Facts to Which There

Remains a Genuine Issue to Be Tried," which

included this statement: "Gasoline continues to

leak from the contaminated property owned by

Coleman onto the property of the Plaintiffs."

In the light of the ostensible dispute of fact

appearing in the documents in the record --

including those under oath -- summary

judgment for defendant Coleman was very

possibly erroneous. But, as a reviewing court,

we need not go so far as to say summary
23

judgment was wrongfully entered. We can just

say (and we do say with more certainty) that the

motion for remand was improperly denied. 

In terms of this circuit's law, the main point

for us is this one: For a Plaintiff to present an

arguable claim against an in-state defendant

and, therefore, to require a case removed to

federal court to be remanded to state court, the

plaintiff need not show that he could survive in

the district court a motion for summary

judgment filed by that in-state defendant. For a

remand, the plaintiff's burden is much lighter

than that: after drawing all reasonable

inferences from the record in the plaintiff's favor

and then resolving all contested issues of fact

in favor of the plaintiff, there need only be "a

reasonable basis for predicting that the state

law might impose liability on the facts

involved." B., Inc., 663 F.2d at 550 (quoting
24

Bobby Jones Garden Apartments, 391 F.2d at

177) (emphasis added). Because the

procedures are similar while the substantive

standards are very different, district courts must

exercise extraordinary care to avoid jumbling up

motions for remand and motions for summary

judgment that come before them. 

In the remand context, the district court's

authority to look into the ultimate merit of the

plaintiff's claims must be limited to checking for

obviously fraudulent or frivolous claims.

Although we have said that district courts may

look beyond the face of the complaint, we

emphasize that the district court is to stop short

of adjudicating the merits of cases that do not

appear readily to be frivolous or fraudulent.

Applying these principals to this case, we

conclude that the district court -- given the

record before it -- should have remanded the
25

case to state court and should have never

addressed the motion for summary judgment.

 4. Oral Argument in the Appellate Court

This case, however, presents one more

question. In dissent, Judge Roney points out a

statement made at oral argument in this court

by Plaintiffs' counsel; Judge Roney concludes

from the statement that Plaintiffs cannot in fact

dispute that no gasoline has intruded onto

Plaintiffs' land from Coleman's land since

Coleman was the landowner. Therefore, we

must answer this question: If the district court

erred on the record before it, does this error

become harmless given Plaintiffs' counsel's

words to the appellate court?
 At this point, Judge Roney may be asking a

question which is different from the one the

district court addressed when the district court

said, "[s]ince at least May 14, 1991 . . . there

26

 The pertinent statement of PlaintiffAppellants' counsel occurred during the rebuttal

in the context of the following exchange:

Judge Roney: "Is [the district court

judge] correct or

incorrect when he says, 'The

following

facts are undisputed: There

have been

no petroleum releases from

the site 

since May 14, 1991.'"

Counsel: "He is correct that there

has been 

no -- that was the day the

tanks 

were taken out. There could

have 

been no new releases, but it is

 undisputed that the gasoline

remains on . . . "

Judge Roney: "I'm not talking about

that. I'm talking 

about whether any gasoline

flowed from

the property Mr. Coleman

owned after

he owned it?"6
have been no petroleum releases from the site."

See supra note 5.

27

Counsel: "We could not prove one

way or the other. So, I cannot

technically say that t h e n e w

flow since Coleman ran it is 

disputed."

That concessions and admissions of

counsel at oral argument in appellate courts can

count against them is doubtlessly true. See,

e.g., Rozar v. Mullis, 85 F.3d 556, 563 (11th Cir.

1996); United States v. Gerber, 994 F.2d 1556,

1558 (11th Cir. 1993). But waivers and

concessions made in appellate oral arguments

need to be unambiguous before they are

allowed to change the outcome of an appeal

from a reversal to an affirmance. See Glick v.

White Motor Co., 458 F.2d 1287, 1291 (3d Cir.

1971) ("[T]o be binding, judicial admissions

must be unequivocal.") In the context of the

entire oral argument in this case and of

Plaintiffs' briefs, we are unwilling to base the
28

outcome of this case on a few words uttered in

the last minute of Plaintiffs' counsel's rebuttal.

For example, earlier in the same oral

argument, the following exchange occurred

between Judge Roney and Appellants' counsel:

Judge Roney: "Where is the evidence

that there was

any continued leaking after

Coleman 

got the property?"

Counsel: "There is evidence. It is

alleged in

the complaint . . ."

Judge Roney: "No. It is very diffuse."

Counsel: "Here is the confusion.

There is not 

the leakage from the tanks.

The 

tanks are gone. But, there is

gasoline on the adjoining

property

that, number one, continues

to leak

onto the . . . " [counsel was

interrupted]
29

At another point in the oral argument,

Appellants' counsel spoke these words:

Counsel: "[The defendants] did not

claim 

or deny in the summary

judgment

that the gasoline continues to

be 

there. Nobody denies that,

because

it is."

Judge Roney: " C o n t i n u e s t o b e

where?"

Counsel: "In the ground."

Judge Roney: "On your client's

property?"

Counsel: "On our client's property

and on 

[the defendants'] property."

For other representations of plaintiffappellants on the timing of the seepage of

gasoline onto their land, see Appellant's Brief at

page 13 (characterizing the continuing nuisance

as "the exuding gasoline") and at page 15 ("the

pollutants currently obtruding Plaintiffs'
30

property represent the continuing nuisance").

See also Appellant's Reply Brief at page 6 ("The

cause of action against Coleman stems, not

from any involvement with the leaky USTs, but

rather, from his passive acquiescence of the

continuing exudation of contamination from his

property after failing his statutory duty to abate

it upon Appellants' request.") (emphasis in

original).

Taken as a whole, we cannot say that

Plaintiff-Appellants' counsel's statements about

when gasoline has seeped onto his clients’ land

were so consistent, plain and favorable to

Coleman as to make the district court's error, in

the light of the record before it, harmless in

reality. Again, if there is ambiguity about what

Plaintiffs' counsel has said, Plaintiffs are

entitled to the construction most favorable to

remand. 
 Because we decide that the district court

erred by denying Plaintiffs' motion for remand

based on the unamended complaint, we do not

address Plaintiffs' argument that the district

court erred by refusing to allow Plaintiffs to

amend their complaint.

31

III. Conclusion

If removal is doubtful, we remand the case.

Therefore, we send this case back to the district

court to remand it to state court.7

 In doing so,

we express no view of the ultimate outcome on

the merits. Georgia's state courts -- which have

the final word on Georgia law -- will decide all

that.

SUMMARY JUDGMENT VACATED.

REVERSED and REMANDED.

RONEY, Senior Circuit Judge, dissenting:

I respectfully would affirm for the reasons

set forth in Judge Moye’s Order.
32

The reversal is based on the fact that there

is “petroleum seeping from his [Coleman’s] land

onto adjoining land” and that “the preexisting

contamination of the defendant's land continued

to migrate onto the plaintiffs’ property.” The

majority opinion recites that “neither the words

of Plaintiffs’ complaint nor the remainder of the

record foreclose the possibility that petroleum

has continued to seep onto Plaintiffs’ property

during Coleman’s ownership.” 

This is contrary to the record, the

understanding of Judge Moye, and the

admissions of counsel at oral argument. Judge

Moye recited as undisputed that since May

1991, prior to Coleman’s ownership: “There

have been no petroleum releases from the site.”

The parties do not dispute this fact on appeal.

When asked directly about the accuracy of this

statement at oral argument, counsel for
33

plaintiffs said: “We could not prove one way or

the other. So I cannot technically say that the

new flow since Coleman owned it is disputed.”

Therefore, the case presented to this Court is

based on this undisputed critical paragraph in

Judge Moye’s opinion:

Since at least May 14, 1991, there have

been no deliveries of petroleum

products to the former service station,

there have been no petroleum products

sold from the site, there have been no

petroleum products stored at the site,

and there have been no petroleum

releases from the site.

On these undisputed facts, Georgia law is

clear. If Coleman did not own the property or

the offending tanks that caused the

contamination, he cannot be held responsible

for the fact that the contaminants remain on the

plaintiffs’ property. Citizens & So. Trust v. Phillips

Petro., 385 S.E.2d 426, 428 (Ga. App. Ct. 1989)

(“That there was no reoccurrence of a leak from

the underground storage tanks after
34

[defendants] purchased the property and relined

the tanks is undisputed. . . . Accordingly, the

trial court did not err in granting summary

judgment in favor of the [defendants].”). 

To the extent that plaintiffs seek to read

Hoffman v. Atlanta Gas Light Co., 426 S.E.2d 387 (Ga.

App. Ct. 1992), to the contrary, they overlook

the critical facts of that case. “Atlanta Gas Light

now holds and controls the easement and the

pipeline which are the physical source of the

contamination. . . . We will not hold that the

alienee of the easement and pipeline has no legal

duty to abate a continuing nuisance, particularly

under the easement agreement in effect between Atlanta Gas

Light and [the complaining landowners].” Id. at 391.

(Emphasis added). In this case, Coleman never

held, controlled or owned the tanks that caused

the contamination, nor did he have any
35

contractual relation with the complaining

landowners. 

Plaintiffs' argument is that they made a

demand of Coleman to remove the

contamination on their property and that his

refusal to do so amounts to a continuing

nuisance. There is no authority for the

proposition that by demanding the removal of a

nuisance by someone who has had nothing to

do with the source or maintenance of it, or the

things which caused it, can somehow create a

cause of action against them for a “continuing”

nuisance, which they have never had anything

to do with in the first place.

Under the undisputed facts as presented to

this Court on appeal, plaintiffs have no cause of

action against Coleman, and the district court

correctly so ruled.

I would affirm.