Monday, November 28, 2011

Court reviews a nuisance lawsuit involving a loud Air Conditioning Condenser Unit

CHANDRA PEARSON v. VICTOR ROSS (Tenn. Ct. App. December 28, 2011)

This appeal involves a nuisance claim. The parties own adjoining homes in a neighborhood of zero-lot line homes. The defendant's air conditioning condenser unit is outside his home, between the parties' homes. The plaintiff filed this lawsuit against the defendant, alleging that the noise of the defendant's air conditioning unit constituted a nuisance, and seeking abatement of the nuisance, money damages, and injunctive relief. After a bench trial, the trial court held in favor of the defendant. The plaintiff now appeals. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/pearsonc_122811.pdf

Thursday, November 17, 2011

Determination of Navigability and Ownership of Land Beneath a River

Determination of Navigability and Ownership of Land Beneath a River (TN Attorney General Opinions, November 17, 2011)

In this opinion, the Attorney General discussed the following questions:
1. When is a river legally deemed navigable, and how does such a determination affect ownership of the land beneath the river?
2. Assuming a river is deemed navigable by the U.S. Army Corps of Engineers, then is the river navigable in a legal sense?

Question 1
After discussing the applicable case law, the Attorney General concluded that whether a waterway is legally navigable is a question of fact to be determined by a jury. The AG states that the legal navigability of a waterway determines whether the land beneath the water may be privately owned--if the waterway is not legally navigable, the land beneath it may be privately owned, but if it is navigable, the bed of the waterway, to the low-water mark, is publicly owned by the State. However, the public maintains a right to "free and uninterrupted use" of the waterway for purposes of transportation and navigation even if a waterway is deemed non-navigable.

Question 2
With regards to the second question, the Attorney General refers to the Code of Federal Regulations, which states that determinations of navigability by the U.S. Army Corps of Engineers is binding on the Corps, but not on federal courts. He then refers to the Tennessee Court of Appeals' City of Murfreesboro v. Pierce Hardy Real Estate, Inc. case, which concludes that if the U.S. Army Corps of Engineers' decision cannot bind federal courts, it also cannot bind state courts. Thus, although the U.S. Army Corps of Engineers' determination of navigability can be considered by a jury, the jury is not bound by that determination and may find contrary to the Corps' determination.


The AG's opinion can be read in its entirety at:
http://www.tba2.org/tba_files/AG/2011/ag_11_75.pdf

Court reviews a mortgage priority dispute involving a scrivener's error on the deed of trust

ABN AMRO MORTGAGE GROUP, INC. v. SOUTHERN SECURITY FEDERAL CREDIT UNION (Tenn. Ct. App. November 17, 2011)

Appellant, the second mortgage holder on the subject property, appeals the trial court's determination that Appellee held a valid first mortgage on the property, when Appellee's mortgage was taken under a deed of trust that contained a scrivener's error that incorrectly identified the property's lot number.

The trial court held that: (1) the scrivener's error was not fatal to Appellant's deed of trust as the instrument otherwise clearly identified the property; (2) Appellant's mortgage was superior to Appellee's; and (3) Appellee's bid at Appellant's foreclosure sale created a valid contract, under which Appellee owed Appellant the purchase price. Finding no error, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/abnamro_111711.pdf