dissenting.
Because the power plant must be considered a permanent nuisance, and because plaintiffs became aware of the noise problem shortly after the plant began operating in 2000, plaintiffs’ complaint is barred by the statute of limitation. Therefore, I respectfully dissent.
The general rule is that
[a] nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance and against which the statute of limitations begins, from that time, to run. Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie.
(Citations and punctuation omitted.) Shaheen v. G & G Corp., 230 Ga. 646, 647-648 (198 SE2d 853) (1973).
With regard to nuisances created by a public entity, the Supreme Court in City of Atlanta v. Kleber, 285 Ga. 413 (677 SE2d 134) (2009), *277quoted from The Restatement of Torts (Second) § 930 as follows:
Damage to neighboring landowners is frequently incident to the construction and operation of establishments employed in necessary public service, which nominally have the right of taking land by eminent domain. A railway embankment with an inadequate culvert diverts water upon nearby land; a municipal electric plant sends smoke and fumes into homes and factories; a city sewage disposal system pollutes a stream to the injury of bordering landowners. If the damage results from some minor feature of construction or management, so that it could be averted at slight expense, the normal remedy of successive actions for past invasions or relief by injunction would alone be available, as is also true if the harm results from an improper and unnecessary method of operation. But if the invasions are caused by some substantial and relatively enduring feature of the plan of construction or from an essential method of operation, then it will usually not be abatable. . . .
(Emphasis in original.) City of Atlanta, supra at 417.
In this case, there are no allegations of negligent construction or maintenance. Therefore, the power plant can only be deemed to be a continuing nuisance if “the damage results from some minor feature of construction or management, so that it could be averted at slight expense.” Restatement (Second) of Torts § 930.
As appellees acknowledge in their brief, the cost to retrofit the stacks has been variously estimated by the experts testifying as $8 million, $3 million, and somewhere between $5 million and $10 million. This is not a “minor construction” that can be accomplished at “slight expense.”
In concluding that there was an issue of fact as to whether this cost to abate the nuisance was slight, the majority compares the millions that it would cost to retrofit the plant to the $200 million that it cost to build it. The majority cites to no case law, and I find none, that supports this method of determining whether a cost was slight or substantial.
In any event, the “millions and millions” that it would cost to do a “tear-down of the exhaust silencing system” must, under any definition, be deemed substantial. Therefore, because the nuisance is caused by a public rather than a private entity, and because the nuisance is not abatable, the power plant must be considered a permanent nuisance.
Moreover, as pointed out in the amicus brief, there is additional authority for finding the power plant to be a permanent rather than *278a continuing nuisance. As stated in City of Atlanta, supra, where the damage results from the operation of establishments employed in necessary public service, and where the invasions are caused by some substantial and relatively enduring feature of the plan of construction or from an essential method of operation, then it will usually not be abatable. Id. at 417, quoting Restatement (Second) of Torts § 930. Further, in Bainbridge Power Co. v. Ivey, 41 Ga. App. 193 (152 SE 306) (1930), this Court held: “A permanent nuisance is not necessarily one which can never, under any circumstances, be abated; but it is one whose character is such that, from its nature and under the circumstances of its existence, it presumably will continue indefinitely.” Id.
Decided March 30, 2010 McNatt, Greene & Peterson, Hugh B. McNatt, Balch & Bingham, Natalie M. Christensen, for appellants. McRae, Stegall, Peek, Harman, Smith & Manning, Michael D. McRae, Jason B. Sanker, for appellees. Charles T. Autry, Roland Hall, Peter M. Degnan, Jonathan E. Wells, amici curiae.This holding is important for public utilities and other entities that operate plants with long life spans. As the amicus brief points out, utilities and other public entities could face future nuisance claims alleging that, even though it would cost millions, it had become technologically feasible to abate the nuisance.
Because it is undisputed that the landowners were aware of the noise problem and began lodging complaints about the noise level in 2000 and 2001, the statute of limitation began to run at that time. Thus, this suit filed in 2007 is barred by the four-year statute of limitation. Accordingly, the trial court erred in not granting defendants’ motion for summary judgment on these grounds.
I am authorized to state that Presiding Judge Johnson and Judge Ellington join in this dissent.