concurring specially.
While I concur in the result, I cannot concur with all that is written in the majority opinion. Our opinions in Walker v. Johnson, 278 Ga. App. 806 (630 SE2d 70) (2006), City of Macon v. Macrive Constr., 241 Ga. App. 396 (525 SE2d 418) (1999), and Macko v. City of Lawrenceville, 231 Ga. App. 671 (499 SE2d 707) (1998), should be limited to the facts presented but not disapproved. I write separately to clarify that the majority opinion should not be interpreted to hold that the statute of limitation will be tolled in perpetuity for any individual or entity that created a continuing nuisance, regardless of how much time has elapsed since that entity owned, controlled, or maintained the property from which the nuisance emanates. This is not the law, and such a result is not required by the case before us.
*154Where 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. This action accrues at the time of such continuance, and against it the statute of limitations runs only from the time of such accrual.
(Citations omitted; emphasis supplied.) City of Gainesville v. Waters, 258 Ga. App. 555, 558 (3) (574 SE2d 638) (2002). On the other hand, a nuisance, even one that continues over time, is permanent if it cannot and should not be abated by the person erecting or maintaining it. In circumstances, such as those in Walker, Macrive, or Macko, when more than four years have passed since the nuisance first became apparent and the entity that erected or maintained the nuisance no longer owns, maintains, or controls the property, this court has held that the nuisance is permanent and claims are barred by the statute of limitation.
In contrast to such cases, because public entities almost always continue to maintain or control the nuisance, our courts find that the nuisance is abatable with no in-depth analysis of whether the nuisance “can and should be abated,” because there is no statute of limitation issue. See, e.g., Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996). With regard to a private entity, however, whether the nuisance can or should be abated turns upon whether the private entity owned or controlled the property within the period of the statute of limitation. This is directly demonstrated in Walker, supra, in which we held that the statute of limitation had run with respect to a developer’s alleged failure to construct an adequate drainage system for the subdivision more than four years before suit was filed. We also held, however, that the statute would not bar a separate continuing nuisance claim with respect to the clearing of land that the developer continued to own and that allegedly increased the flooding problem on the plaintiffs’ land. Id. at 809-810 (1).
The majority overlooks this important distinction. It begins by stating a three-stage analysis based on Cox v. Cambridge Square Towne Houses, 239 Ga. 127 (236 SE2d 73) (1977), a case involving a nuisance created and maintained by a private rather than a public enterprise. But the majority does not complete the analysis. First, it considers whether the nuisance emanates from a public or private source and finds that it is public. Next, it considers whether “the nuisance can and should be abated,” considering that as a question of whether the alleged nuisance is an essential or integral part of the public purpose. At that point, however, the majority abandons *155further analysis and holds that a municipality’s negligent construction of a drainage system that repeatedly floods is a continuing, abatable nuisance, but does so without considering the legal standard for when a “nuisance can and should be abated.”
While disapproving the cases, the majority draws a distinction between cases involving public entities, such as the one before us, and private entities, such as those in the three cases the majority seeks to limit or disapprove. But Macko also has been distinguished in the past because it involves a permanent rather than an abatable nuisance. See Waters, supra, 258 Ga. App. at 559 (3). Rather than analyzing the nature or quality of the nuisance itself, as the majority does here, the analysis in Macko turns on whether the nuisance is in fact abatable — i.e., whether the defendant has the power and ability to cure the problem.
In Macko, the alleged nuisance was created by the developer of the subdivision when the system was constructed, not the current owners of the adjoining property, who were also sued, along with the city, over four years after flooding became apparent. Macrive, which relies on Macko, presents remarkably similar facts. The plaintiff homeowners sued Macrive, who had originally installed the drainage system on their land, over four years after plaintiffs purchased their lots and after flooding began. In fact, the City of Macon had abated the nuisance itself and joined the suit, seeking to recover the costs of rebuilding the drainage system from the contractor. Macrive, supra, 241 Ga. App. at 396-397. Compare Waters, supra, in which the defendant city “does not dispute that it exercised dominion and control over the pipe or drainage system,” 258 Ga. App. at 557 (1), and thus remained capable of abating the nuisance. Consequently, the result in each of these cases was proper and not inconsistent with the Georgia Supreme Court’s opinion in Cox. Cox addressed the statute of limitation with regard to a private entity that still owned the property. The nuisance, therefore, could be abated by the entity.
In the process of limiting Walker, Macrive, and Macko, we should take care to presume that each was correctly decided based upon the facts before us and not assume facts not in the opinion in order to conclude that it might be wrongly decided. For example, the majority states that “it follows” that the developer in Macko retained control of the nuisance because the Mackos failed to prove that the city had an obligation to abate it. But this does not show that the developer retained control — the individual landowners may have had control, as in Macrive, supra, or the city may have assumed control but the Mackos failed to prove their case. “[W]e will not presume error where the record is silent.” (Citation, punctuation and footnote omitted.) Jowers v. State, 272 Ga. App. 614, 619 (3) (c) (613 SE2d 14) (2005).
*156In the case before us, the public entity and Norfolk Southern still have control over the property and the nuisance “can and should be abated by the person erecting or maintaining it.” (Citations omitted.) Waters, supra, 258 Ga. App. at 558 (3). This appears to be an adequate basis for distinguishing these cases without overruling them. The majority does not fully address this concept, since it concentrates on whether the nuisance is an integral and necessary part of the operation complained of. But whether a nuisance “can and should be abated by” a person depends not merely on whether the abatement is advisable from a public policy or necessity standpoint (“should be”), but also on whether the defendant still controls the property and thus has the ability to go on the land to abate the nuisance itself (“can”). The majority does not consider this necessary step in determining the application of the statute of limitation.
I concur that all three cases should be limited to their facts to the extent that they could be interpreted to find that the four-year statute of limitation bars any cause of action against a public or private entity that maintained, owned, or controlled a nuisance within four years of the filing of a lawsuit. Compare Rowe v. Steve Allen & Assoc., 197 Ga. App. 452, 453 (398 SE2d 717) (1990). This limitation, of course, would have no effect on the general rule that an entity creating or maintaining a nuisance continues to be liable within the statutory limitation period even if it relinquishes ownership or control of the nuisance during that time. See McMillen Dev. Corp. v. Bull, 228 Ga. 826, 828 (3) (a) (188 SE2d 491) (1972) (statute of limitation not at issue).
The majority opinion should not be interpreted to hold that the statute of limitation will never expire in ongoing nuisance cases involving drainage issues, even if more than four years have passed since the defendant had any ability to correct the problem. I do not believe this would be a proper application of the law. As the majority states, this is a dense, confusing area of law, and we should not further confuse it. Construing Macko and Walker as the majority proposes is unnecessary and creates confusion because they stand for a completely different proposition of law which is not at issue in the case before us.
In sum, we should take care to guard against the use of strained constructions when overruling multiple decisions of this court. Doing otherwise undermines confidence in the legal system and the precedential value of the decisions of this court.
For these reasons, I specially concur in the result.
I am authorized to state that Presiding Judge Andrews, Judge Miller, Judge Phipps, and Judge Mikell join in this special concurrence.
*157Decided March 28, 2008 Reconsiderations denied April 14, 2008 Gaslowitz & Frankel, Craig M. Frankel, Lisa C. Lambert, for appellants. Weissman, Nowack, Curry & Wilco, William C. Thompson, Laura S. Morris, Linda K. DiSantis, Laura Sauriol-Broward, for appellees.