dissenting.
In DeKalb County v. Orwig, 196 Ga. App. 255 (395 SE2d 824) *140(1990), the Court of Appeals held:
[A] county may be liable in a civil action for the maintaining of a nuisance upon the requisite proof of failure to properly maintain public works, without regard to whether such act is incidental to a taking for public purpose or public improvements; that is without the necessity to prove “inverse condemnation.” [Id. at 258.]
We granted certiorari to address inter alia the following:
Whether a county can be liable for a nuisance that does not rise to the level of a taking of property. . . .
1. (a) The case of Duffield v. DeKalb County, 242 Ga. 432 (249 SE2d 235) (1978) is a source of the present problem. Correctly analyzed, Duffield can aid in its solution. There we held:
[T]he Constitution provides for a waiver of sovereign immunity where a county creates a nuisance which amounts to an inverse condemnation. [Id. at 433.]
We went on to hold:
Therefore, no physical invasion damaging to the property need be shown; only an unlawful interference with the right of the owner to enjoy his possession. . . . [T]he [property] owners have clearly stated a claim of inverse condemnation in alleging that the odors and noise from the county’s sewage plant have interfered with their right to use, enjoy, and dispose of their property. [Id. at 434.]
(b) What we have done is obvious: in the name of “sovereign immunity,” we have said that a county is not liable for damage to property that results from the maintenance by the county of a condition that ordinarily is labelled “nuisance.” However, we have applied to that very same condition the label “inverse condemnation,” and under that label, we have allowed recovery.
To expand a troublesome equation even further, we have stated that the measure of damages for what is in reality a “nuisance” must be gauged by those damages appropriate to “a condemnation action.”1
2. (a) In Duffield, of course, there was no “taking” by DeKalb *141County of the owners’ property. There was no “condemnation” of any kind — either direct or “inverse.” What DeKalb County did in Duffield is the same thing that it allegedly did in this case: it maintained its sanitary sewer system in such a manner as to create a “nuisance,” as that label has been understood over the centuries.2
(b) What this court has done today, through the majority opinion, is the same thing we did in Duffteld. We have employed the same vexatious fiction in order to avoid issues of sovereign immunity. And in failing to free ourselves from the tyranny of labels, we have authenticated a bizarre dichotomy between counties and cities. Hence, cities are liable for the full range of damages actually incurred by the victim of a city-created “nuisance.” See City of Columbus v. Myszka, 246 Ga. 571, 573 (272 SE2d 302) (1980). Counties, however, are shielded from all claims for damages except those allowable against a condemning authority, in the exercise of its power of eminent domain.3
In this case, Orwig (unlike Myszka) is restricted severely in the scope of damages she may recover because the doer of harm is a county rather than a city.
The majority states in Division 1 at p. 138: “[T]he damages which may be recovered in such a suit are limited to those recoverable in a condemnation action.”
OCGA § 41-1-1 defines nuisance as follows:
A nuisance is 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.
See majority opinion, p. 138; and the language of Wilmoth v. Henry County, 251 Ga. 643 (309 SE2d 126) (1983): “The damage recoverable in such actions is the decrease in market value and is governed by rules for damages in a condemnation action.” Wilmoth related to personal injuries received by a juror who slipped and fell at a county courthouse. She claimed that the county had effected a “taking” by requiring her presence for jury duty. Language from Wilmoth was used in our opinion in Fulton County v. Wheaton, 252 Ga. 49, 51 (310 SE2d 910) (1984). Combining that language with the holding in Myszka repeated (in a single case) a dual standard, for which this writer accepts responsibility. In any event, Wheaton demonstrates a fault in logic, which we should not perpetuate.