CLAYTON DYE, and wife, EVELYN DYE, v. HOWARD D. LIPPS, and wife, MARGARET L. LIPPS, and WILLIAM E. PHILLIPS, TRUSTEE OF A DEED OF TRUST SECURING THE CITIZENS BANK OF EAST TENNESSEE (Tenn. Ct. App. April 27, 2009).
Plaintiffs brought an action alleging defendants had created a nuisance on their property which damages plaintiffs’ adjoining property. Following an evidentiary hearing, the Trial Judge found a temporary nuisance existed and awarded damages to plaintiffs. Defendants appealed on the sole issue of the amount of damages. We affirm the Trial Court’s Judgment.
Opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dyec_042709.pdf
“A review of Tennessee cases demonstrate that the most widely employed method of proving damages resulting from a temporary nuisance is to present evidence of the diminution in the rental value of the affected property during the duration of the nuisance. See Adair v. Scalf, No. M2001-00677-COA-R3-CV, 2003 WL 261932 at * 5 (Tenn. Ct. App. Feb. 7, 2003). However, diminution in rental value is not the only method to establish a plaintiff’s damages in a temporary nuisance case. The Tennessee Supreme Court in Lane v. W. J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002) discussed alternative measures of damages as follows:
A party who has been subjected to a private nuisance may be entitled to several types of remedies. A plaintiff may be entitled to injunctive relief, especially where the nuisance is likely to continue. Pate, 614 S.W.2d at 48. Further, in cases involving a temporary private nuisance, which is one that can be corrected, damages may be awarded for the cost of restoring the property to its pre-nuisance condition, as well as damages for inconvenience, emotional distress, and injury to the use and enjoyment of the property. ... The typical way of measuring injury to the use and enjoyment of the property is the decrease in rental value of the property while the nuisance existed. Id.; see also Pate, 614 S.W.2d at 48 (noting that the measure of damages is the “injury to the value of the use and enjoyment of the property, which is usually shown by evidence of the extent that the rental value of the property is diminished by the nuisance”). Accordingly, courts provide an appropriate remedy in the form of either damages or injunctive relief or both.” Id.
“Here, the Trial Court correctly observed that a decrease in rental value due to the nuisance, is the most commonly used measure of damages, but not the only way to measure loss of use and enjoyment of the property in a temporary nuisance case. The Trial Court’s determination on this issue is borne out by the Supreme Court’s decision in Lane that held that diminution of rental value was not the exclusive measure of loss of use and enjoyment when it used the words “typical” and “usually” in the above referenced quotation from Lane. Additionally, this Court has repeatedly stated that diminution of rental value may be used to determine loss of use and enjoyment of the property, implying that there are other methods by which the court may measure the loss. See Clabo v. Great American Resorts, Inc., 121 S.W.3d 668, p. 671 (Tenn. Ct. App. 2003). The Trial Court noted plaintiff’s testimony that he could not mow the portion of his property effected by the dam’s leakage and could not use that part of the property for any purpose, demonstrating that his use and enjoyment of his property had diminished significantly.” Id.
