17E50451 Zeeman Counterclaim Clean 2¶

VERIFIFED COUNTERCLAIM Sarah Zeeman files this Counterclaim against Jonathan Sweatman, showing the Court as follows: Parties, Jurisdiction, and Venue 1. Sarah Zeeman is an individual and the owner of certain real property known as 2740 Grove Street, Atlanta, Georgia by virtue of a Warranty Deed dated May 30, 2006 recorded on June 5, 2006 in Deed Book 18783, Page 248, DeKalb County, Georgia records (hereinafter the “Zeeman Property”). 2. Jonathan Sweatman submitted to the jurisdiction of this Court and consented to venue herein by filing the above-styled action. 3. Sweatman is an individual and the owner of certain real property known as 2746 Grove Street, Atlanta, Georgia by virtue of a Warranty Deed dated March 31, 1994 recorded on April 4, 1994 in Deed Book 8128, Page 396, DeKalb County, Georgia records (hereinafter the “Sweatman Property”). Facts 4. The Zeeman Property and Sweatman Property are adjacent to one another and share a common boundary line.

5. More than 20 years ago, a fence was constructed between the Zeeman Property and the Sweatman Property (the “Fence”). 6. A recent survey shows that portions of the Fence were on the Sweatman Property. 7. At all times material hereto, and for a period of more than 20 years, the Fence, together with other fencing located on the Zeeman Property completely enclosed the backyard of the Zeeman Property to the exclusion of the Sweatman Property. 8. In 2021, Sweatman undertook a series of renovations and improvements that included enlarging and enclosing a porch attached to his house, regrading his yard, installing stormwater drainage, and replacing the Fence. 9. When Sweatman replaced the Fence, he caused it to be constructed approximately two and a half feet deeper onto the Zeeman Property, which had previously, and for a period of more than 20 years, been completely enclosed by the Fence and other elements of fencing located on the Zeeman Property to the exclusion of the Sweatman Property. This encroachment of approximately two and a half feet is hereinafter referred to as the “Disputed Area.” Zeeman’s possession of the Disputed Area, including her predecessors in title, has been continuously, for more than 20 years, public, continuous, exclusive, uninterrupted, and peaceable.

10. Sweatman’s construction of the Fence deeper onto the Zeeman Property into the Disputed Area encroached on the Zeeman Property and expanded Sweatman’s property line to take Zeeman’s Property. 11. At all times material hereto, Zeeman objected to Sweatman encroaching on the Zeeman Property.
12. During the construction of the new fence by Sweatman and/or his agents for whom Sweatman is liable trespassed on the Zeeman Property without permission or right. 13. The fence newly constructed by Sweatman has its unfinished side facing the Zeeman Property in violation of City of Brookhaven codes and has nails that protrude through the fence and are exposed on the side of the Zeeman Property. 14. As part of the renovations undertaken by Sweatman in 2021, Sweatman buried stormwater drainage systems underground that empty onto Zeeman’s property, causing an increased, unnatural amount of water to collect and accumulate on the Zeeman Property. 15. As part of the renovations undertaken by Sweatman in 2021, Sweatman constructed a significantly larger deck extension, exceeding the scope of the building permit that was approved by the City of Brookhaven, and causing a material increase in the amount of impervious surface on the Sweatman Property in violation of applicable City of Brookhaven codes. As a result of the increase in impervious surface area on the Sweatman Property, the amount of stormwater accumulating on the Sweatman Property and then flowing onto the Zeeman Property has materially increased resulting in flooding and an increased, unnatural amount of water to collect and accumulate on the Zeeman Property. Count I Declaratory Judgment 16. Zeeman re-alleges and incorporates by reference the within and foregoing Paragraphs 1-15 of her Counterclaim as if fully restated herein. 17. This claim is an action for Declaratory Judgment brought pursuant to the provisions of O.C.G.A.§9-4-1, et seq. 18. An actual or justiciable controversy exists between the Parties in this case concerning the location of the boundary line between the Zeeman Property and the Sweatman Property. 19. It is necessary and proper that the rights and status among the parties hereto be declared, including that of the location of the boundary line. 20. Zeeman seeks a declaration of rights, including a declaration that she is the owner of the the Disputed Area and the “certain structures and improvements consisting of a garden window, two slabs and two heating ventilation and air conditioning (“HVAC”) units” described in Paragraph 10 of Sweatman’s Complaint either via survey or via prescription and that the Sweatman fence is now encroaching on the Zeeman Property. Count II Equitable Relief and Injunction 21. Zeeman re-alleges and incorporates by reference the within and foregoing Paragraphs 1-20 of her Counterclaim as if fully restated herein. 22. Sweatman’s construction of a fence in the Disputed Area thus encroaching on the Zeeman Property has and will continue to cause Zeeman irreparable damage. 23. Sweatman’s construction of additional impervious surfaces on the Sweatman Property has caused excess water to accumulate and discharge onto the Zeeman Property. 24. Sweatman has caused underground storm water pipes to discharge onto the Zeeman Property causing flooding and the unnatural accumulation and discharge of stormwaters onto the Zeeman Property. 25. There is no adequate remedy at law to restore the parties to the status quo ante and Zeeman seek an injunction preventing Sweatman or any of his agents from coming onto Zeeman’s property, directing Sweatman to remove the fence constructed in the Disputed Area and move it back to its original location, and to prevent the accumulation and discharge of stormwater onto the Zeeman Property. 26. Equity, by writ of injunction may restrain a threatened or existing tort or any other act of a private individual or corporation, which is illegal or contrary to equity and good conscience and for which no adequate remedy is provided at law. O.C.G.A. §9-5-1. 27. Sweatman has caused a nuisance and is trespassing on the Zeeman Property and the nuisance and trespass are continuing. 28. Zeeman lacks an adequate remedy at law to prevent Sweatman from allowing the water to accumulate and discharge into the Zeeman Property. 29. Zeeman lacks an adequate remedy at law to cause Sweatman to remove the fence that is now encroaching onto the Zeeman Property in the Disputed Area. 30. Injunctive relief is appropriate and necessary to protect the Zeeman Property. 31. The balance of equity weighs in favor of injunctive relief. 32. Zeeman has a reasonable likelihood of success on the merits of her claims.

Count III Trespass to Property 33. Zeeman re-alleges and incorporates by reference the within and foregoing Paragraphs 1-32 of her Counterclaim as if fully restated herein. 34. The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie. O.C.G.A. § 51-9-1. 35. Zeeman is the owner of the Zeeman Property. 36. The renovation activities of Sweatman and the placement of underground stormwater pipes causes water to flow onto the Zeeman Property from the rear of the Sweatman Property with such volume to cause erosion, flooding, and damages to Zeeman’s home and as such, constitutes a continuing trespass which has continued to this date. 37. Zeeman has been damaged by the trespass of Sweatman. 38. Zeeman owns the Zeeman Property and has the right to complete and full possession of her property without unlawful interference from neighboring landowners. Sweatman has entered upon the premises of Plaintiffs’ property without their permission and have destroyed or otherwise, interfered with her peaceful enjoyment of her property for which Sweatman is liable. 39. Sweatman has entered upon the premises of the Zeeman Property in violation of Zeeman’s rights and has placed onto the Zeeman Property a fence which interferes with Zeeman’s right to possess the property without interference from Sweatman.
40. Sweatman has caused water to discharge and flow onto the premises of the Zeeman Property in violation of Zeeman’s rights and has caused flooding, erosion, and damage to Zeeman’s deck and foundation, which interferes with Zeeman’s right to possess the property without interference from Sweatman.
41. Sweatman has trespassed and have made unlawful invasion of and interference with a property right which belongs to Zeeman. Sweatman’s trespass has damaged the Zeeman Property for which Sweatman is liable pursuant to O.C.G.A. §§ 51-9-1 to 51-9-11.
Count IV Nuisance 42. Zeeman re-alleges and incorporates by reference the within and foregoing Paragraphs 1-41 of her Counterclaim as if fully restated herein. 43. 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 as such would affect an ordinary, reasonable man. O.C.G.A. § 41-1-1. 44. One land owner has no right to concentrate and collect water and cause it to be discharged upon the land of a lower land owner or in a manner that is different in which the water would be received by the lower land owner if it simply ran down upon it from the upper land by way of gravity. 45. The renovation activities of Sweatman and the placement of underground stormwater pipes causes water to flow onto the Zeeman Property from the rear of the Sweatman Property with such volume to cause erosion, fl