Stinchcomb v. Clayton County Water Authority

340 S.E.2d 217, 177 Ga. App. 558, 1986 Ga. App. LEXIS 1480
CourtCourt of Appeals of Georgia
DecidedJanuary 10, 1986
Docket71336
StatusPublished
Cited by7 cases

This text of 340 S.E.2d 217 (Stinchcomb v. Clayton County Water Authority) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stinchcomb v. Clayton County Water Authority, 340 S.E.2d 217, 177 Ga. App. 558, 1986 Ga. App. LEXIS 1480 (Ga. Ct. App. 1986).

Opinions

Deen, Presiding Judge.

Appellant Stinchcomb, a Clayton County resident, owned adjoining lands in Clayton and Fayette Counties. On May 25, 1972, he granted the Clayton County Water Authority, appellee here, an easement to run a sewer line across part of his Clayton County land, in return for which he was paid $1 and given permission to “tap on to such sanitary sewer line[,] such sewer lines as he desires at the same cost as to others[,] whether the lands served by such sewer lines are in Clayton or Fayette County. However, as soon as Fayette County provides a sanitary sewer line to serve such lands of the Grantor as may lie in Fayette County, Georgiaf,] . . . then the Grantor shall tap on to the Fayette County sewer system.” When appellant subsequently sought to tap on to the Clayton County sewer line for the servicing of his Fayette County property, the Authority denied permission on the basis that “it was ultra vires for the Clayton County Water Authority to have [so] agreed.”

In April 1985 Stinchcomb filed an action for a declaratory judgment to establish his rights vis-á-vis the sewer system, pursuant to OCGA § 9-4-1. The trial court entered an order holding that the agreement meant that appellant could tap on as many lines as he wished to serve his Clayton County property but only one to serve the Fayette County land. The trial court further held that the contract created an easement which was not an interest in the land or a covenant running with the land, but only a license, and was therefore only a collateral or personal covenant and not one that would inure to appellant’s heirs or assigns.

Stinchcomb appeals from those portions of the judgment which hold that the agreement does not create a covenant running with the [559]*559land and authorizes him to make only one tap-on for the purpose of servicing his Fayette County land. Appellee avers that the court is correct as to the effect of the easement but argues that appellant is not entitled to make any tap-on at all for the servicing of his Fayette County property. Appellee contends that when the Authority purported to authorize a tap-on for this purpose it was acting ultra vires, thereby rendering that portion of the agreement nugatory and unenforceable. Held:

1. The Clayton County Water Authority was created by an Act of the General Assembly (No. 367, House Bill No. 390, approved March 7, 1955). Ga. Laws 1955, p. 3344 et seq.1 The purpose of the Act was, inter alia, to “authorize such Authority to acquire, construct, and thereafter operate and maintain projects embracing sources of water supply and the distribution and sale of water and related facilities to individuals, private concerns, governmental agencies and municipalities; to confer powers and impose duties on the Authority;. . . to authorize said Authority to establish a sewer system or systems in said county so as to vest . . . such Authority with the same powers, jurisdiction and authority with reference to a sewer system or systems as it may have to establish, operate and maintain a water system.”

Relevant portions of the Act read as follows:

“Be it enacted by the General Assembly of Georgia as follows:

“Section 1. That the County of Clayton shall have the right, power and authority to operate, build and maintain a waterworks system, together with the right to acquire lands, construct waterworks facilities, including projects embracing sources of water supply and related facilities; to sell water and its related facilities to individuals, private concerns, governmental agencies and municipalities and counties of this State and to further authorize the said County of Clayton to accept franchises for that purpose granted by other municipalities and by counties of this State to said County of Clayton.

“Section 2. The powers granted by this Act shall authorize the County of Clayton to lay or construct water mains and water distribution systems both within and without the limits of said county . . .

“Section 3. The said County of Clayton shall have the right, power and authority to exercise police powers over the entire water system and shall have the right and authority to make rules and regulations governing the construction, operation, and maintenance, extension and connections with any water main within or without the limits of said county . . .

“Section 9. The said Clayton County Water Authority is hereby [560]*560authorized to construct a county sewerage system in said county, and all rights conferred to said board to construct, operate, and maintain a water system for said county . . . shall likewise apply [to] the construction operation and maintenance of a sewerage system for said county.

“Section 10. Any water or sewerage systems that may be constructed under the provisions of this Act shall be construed to be property of Clayton County . . .

“Section 11. The county governing authority may in its discretion alter, change, modify or repeal any of the rules or regulations adopted by the water authority.

“Section 12. The term county governing authority used in this Act shall be construed to mean the regularly elected commissioner or commissioners of roads and revenues of said county.”

The Bill as introduced at the January 1955 legislative session was titled as follows:

“An Act to create the Clayton County Water Authority and to authorize such Authority to acquire, construct, operate and maintain projects embracing sources of water supply and the distribution and sale of water and related facilities to individuals, private concerns, governmental agencies and municipalities; to confer powers and impose duties on the Authority; ... to authorize the Authority to contract with others pertaining to the water utilities and facilities and to execute leases and do all things deemed necessary or convenient for the operation of such undertakings or projects; ... to authorize said Authority to establish sewer system or systems in said county, so as to vest in the Clayton County Water Authority the same powers, jurisdiction, and authority with reference to the Clayton County sewer system which the said Clayton County Water Authority has by virtue of this Act with reference to the Clayton County water system;... to provide for the separate enactment of such provision of this Act and repealing all laws or parts of laws in conflict with provisions of this Act; and for other purposes.”

It is clear from the above-cited language that the Act vests the Authority with the same powers relative to a sewer system or systems as to a water system. This expressly includes the right to deal with individuals as well as with corporate bodies and governmental entities; to lay lines both within and without Clayton County; to make rules and regulations for the systems; and to execute the contracts, leases, etc., necessary for the construction, maintenance, and operation of the system. The agreement between appellant and the Authority falls within the parameters of the Act and thus does not represent an ultra vires act on the part of the Authority. Contrary to appellee’s assertion, such an agreement is not prohibited by the State Constitution, as the provision cited by appellee did not take effect until No[561]*561vember 7, 1972, some months after the contract was executed. See Code Ann. § 2-5901 (a) (1945); see also Const. Ga., Art. I, Sec. I, Par. X (1983).

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Stinchcomb v. Clayton County Water Authority
340 S.E.2d 217 (Court of Appeals of Georgia, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
340 S.E.2d 217, 177 Ga. App. 558, 1986 Ga. App. LEXIS 1480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stinchcomb-v-clayton-county-water-authority-gactapp-1986.