§56.3 Damages for Permanent Nuisance

The Case : Clabo v. Great American Resorts, Inc., 121 S.W.3d 668 (Tenn. Ct. App. 2003).

The Basic Facts: Plaintiff sued for nuisance caused by water flow issues arising after defendant developed adjoining property.

The Bottom Line:

• "If the damages resulting from the nuisance are due to the fact that the defendant is 'negligently operating its property so as to unnecessarily create the damage' and it is within the defendant's power to operate in a non-negligent manner, then the nuisance is temporary. Robertson v. Cincinnati, New Orleans & Texas Pacific Ry. Co., 339 S.W.2d 6, 8 (Tenn. 1960). If, on the other hand, 'the operation is done with due care considering the use thereof, and it is not contemplated that any change in operation will be made, the damage is permanent and the proper measure of damage is the injury to the fee.' Butcher v. Jefferson City Cabinet Co., 437 S.W.2d 256, 259 (Tenn. Ct. App. 1968) (emphasis in original)." 121 S.W.3d at 671-72.
• "Defendant claims the nuisance is temporary because the damage to the roadway can be fixed given the expenditure of labor or money. Defendant's brief argues Plaintiffs' expert engineer and Plaintiffs' expert appraiser both testified the damage to the slide could be repaired. Defendant then argues that since the slide could be repaired given the expenditure of labor or money, the nuisance is temporary rather than permanent. While it is true both experts testified the slide could be repaired, and Defendant cites to the correct standard regarding temporary nuisance, Defendant has not correctly identified the nuisance itself. The nuisance is the water flow that was diverted, not the destruction of the roadway. The destruction of the roadway constitutes the physical damage caused by the nuisance." Id. at 672.
• "The evidence does not preponderate in favor of a finding that the nuisance of the water flow could be repaired given the expenditure of labor or money. In fact, the evidence regarding the water flow, i.e., Mr. Fowler's testimony regarding how the problem could have been avoided, merely addresses what could have been done differently during the construction of Defendant's rental cabins, not what could be done now to remedy the situation. Even if the roadway were rebuilt, the nuisance of the diverted water flow still exists. Plaintiffs presented evidence that the nuisance was permanent in nature. Defendant, however, offered no proof to the contrary showing that the nuisance, rather than its resulting damages, now can be abated by the devotion of a reasonable amount of labor and money to it. Neither the Trial Court nor this Court is at liberty to substitute its questionable construction knowledge as evidence that the nuisance could be abated by the expenditure of a reasonable amount of labor and money as opposed to the expenditure of an unlimited amount of labor and money." Id.
• "The record is devoid of evidence showing Defendant was operating its property negligently by constructing rental cabins. Further, there is no evidence showing Defendant contemplates operating in another manner such that the water would no longer be diverted onto Plaintiffs' properties abating the nuisance. Rather, given the character of Defendant's business operation, the evidence shows the diverted water flow is presumed to continue indefinitely. See Caldwell, 391 S.W.2d at 11. From the record before us, the nuisance has been 'productive of all the damage which can ever result from it . . .' in that the road, as found by the Trial Court, has been destroyed. Id. Therefore, the nuisance is permanent." Id.
• "The evidence does not preponderate against the Trial Court's finding that a permanent nuisance exists. Further, the Trial Court awarded damages for diminution in the value of Plaintiffs' properties, which is the correct measure of damages for a permanent nuisance." Id.