§56.1 Generally

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:

• "'A nuisance has been defined as anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable.'' Pate v. City of Martin, 614 S.W.2d 46, 47 (Tenn. 1981). A nuisance is either temporary or permanent and the law in Tennessee is well settled as to the proper measure of damages for each category." 121 S.W.3d at 671.
• "A temporary nuisance is defined as:

  [one] which can be corrected by the expenditure of labor or money . . . . Where the nuisance is temporary, damages to property affected by the nuisance are recurrent and may be recovered from time to time until the nuisance is abated. 'The measure of such damages [is] the injury to the value of the use and enjoyment of the property, which may be measured to a large extent by the rental value of the property, and extent that rental value is diminished.

  Id. at 48 (citations omitted). Accord, e.g., Nashville v. Comar, 12 S.W. 1027, 1030 (Tenn. 1889); Harmon v. Louisville, New Orleans & Texas R.R. Co., 11 S.W. 703, 704 (Tenn. 1889); Pryor v. Willoughby, 36 S.W.3d 829, 831 (Tenn. Ct. App. 2000); Hayes v. City of Maryville, 747 S.W.2d 346, 350 (Tenn. Ct. App. 1987); City of Murfreesboro v. Haynes, 82 S.W.2d 236, 238 (Tenn. Ct. App. 1935)." Id.
• "A permanent nuisance is one that is 'presumed to continue indefinitely, and is at once productive of all the damage which can ever result from it . . . .' Caldwell v. Knox Concrete Prods., Inc., 391 S.W.2d 5, 11 (Tenn. Ct. App. 1964). The proper measure of damages for a permanent nuisance is 'the injury to the fee or permanent value of the property . . . .' Louisville & Nashville Terminal Co. v. Lellyett, 85 S.W. 881, 890 (Tenn. 1905). Accord, e.g., Harmon, 11 S.W. at 704; City of Murfreesboro, 82 S.W.2d at 238." Id.
• "As this Court has noted, neither definition of nuisance is entirely satisfactory because 'nearly every nuisance could be abated by the devotion of enough time and money to it; and a permanent improvement to property may, in conjunction with the forces of nature, cause harm only periodically.'Kearney v. Barrett, No. 01-A-01-9407-CH-00356, 1995 Tenn. App. LEXIS 4, at *5 (Tenn. Ct. App. Jan. 4, 1995), appl. perm. appeal denied April 24, 1995. It is helpful to look, as did older Tennessee cases, at 'whether the harm resulted from reasonable and lawful operations on the defendant's property . . . . (as opposed to negligent) and still interfered with the use and enjoyment of the plaintiff's property . . . .' Id. 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)" Id. at 671-72.

Other Sources of Note: Frank v. Government of City of Morristown , No. E2007-02012-COA-R3-CV, 2008 WL 2938048 (Tenn. Ct. App. Jul. 31, 2008) (recognizing that acts of the government are not nuisances per se unless governmental function is conducted in an unreasonable manner and holding plaintiff failed to establish nuisance absent any finding that the defendant City acted unreasonably in conducting the construction project complained about).

Recent Cases: Wilson v. Ours , No. M2006-02703-COA-R3-CV, 2008 WL 4211117 (Tenn. Ct. App. Sept. 3, 2008) (holding plaintiffs failed to carry their burden of proof on nuisance claim against municipality because they presented no evidence of an inherently dangerous condition).

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