In Georgia, a person causing harm to private property from erosion and sedimentation can be liable for the cost to repair, regardless of the diminution in value of the damaged property. The Georgia Court of Appeals recently upheld the assessment of damages against a property owner for the damage caused to a neighboring pond from grading and construction in Ridley v. Turner, A15A0769, 2015 WL 6988611 (Ga. Ct. App. Nov. 12, 2015), reconsideration denied (Dec. 4, 2015). While the defendant violated the Georgia Water Quality Act and the Georgia Erosion and Sedimentation Control Act, those statutes do not provide a mechanism for private parties to bring suit for failure to comply with a permit or to install and maintain best management practices. Instead, a plaintiff must bring a tort claim, as did the plaintiff in this case, for trespass and/or nuisance.
The court determined that damages can be assessed based on the cost to restore the pond and not the diminution of market value for the entire property, even though the cost to repair, $90,000, was very close to the price the Plaintiff paid for the property, $100,000, and likely far exceeded the diminution in value. It is also likely that the $90,000 damages far exceeded the cost that would have been incurred to install and maintain the proper erosion controls needed to avoid discharging the sedimentation into the pond.
The court confirmed that under Georgia law, cost of repair and diminution of value are alternative measures of damages in trespass cases. As long as restoration would not be an “absurd undertaking”, the cost to repair may be used to measure damages even if they exceed the diminution in value. The cost to repair may not exceed the value of the property, however, and must bear some proportion to the injury sustained.
In this case, the pond was to be used for recreational fishing and as a natural feature in developing the plaintiff’s remaining 40 acres as a residential subdivision. The court found that restoring the pond was the most accurate and equitable measure of damages to place the plaintiff in the same position it would have been in if the injury had never occurred.