Georgia Northeastern Railroad v. Lusk

MlKELL, Judge.

In Division 2 of Ga. Northeastern R. Co. v. Lusk, 258 Ga. App. 742 (574 SE2d 810) (2002), we affirmed the sum awarded as damages to Larry Lusk in this nuisance action, holding that the estimated cost to restore Lusk’s eroded riverbank was a proper measure of damages. The Supreme Court granted certiorari to consider whether the damages awarded constituted an impermissible double recovery and whether cost to repair or restore land is an appropriate measure of damages when that cost is disproportionate to the diminution in value. In Ga. Northeastern R. Co. v. Lusk, 277 Ga. 245 (587 SE2d 643) (2003), the Court held that a plaintiff is not entitled to an award of both the diminution in market value and costs to restore for the same injury occasioned by the same trespass and nuisance. Id. at 246 (1). The Court remanded for a new trial on damages, and, for that reason, declined to address the Railroad’s argument that the restoration award was disproportionate to the amount awarded for the diminution in value of the land.

Decided April 14, 2004.

Casey, Gilson & Williams, Matthew D. Williams, Joyce G. Lewis, for appellant.

Hasty, Pope & Ball, William G. Hasty, Jr., Jonathan A. Pope, for appellee.

Accordingly, our decision is vacated as to Division 2, the judgment of the Supreme Court is made the judgment of this Court with respect to that Division, and the judgment of the trial court is reversed and the case remanded for a new trial on damages.

Judgment reversed in part and case remanded.

Andrews, P. J., and Phipps, J., concur.