# FILED July 1, 1998 Cecil W. Crowson Appellate Cou rt Clerk STATE OF TENNESSEE ON ) RELATION OF ERVIN SM ITH, and ) Smith Chancery ERVIN SMITH, individually, ) No. 5668 ) Plaintiffs/Appellee

s, )

) VS. ) ) L. B. FRANKLIN and

ALEX ) Appeal No. RICHMOND, CITY OF CARTHAGE, ) 01A01-9710-CH-00546 TENNESSEE, a municipal c orporation, ) MAYOR DAVID BOWMAN, ) ) Defendants/Appellant

s. )

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CHANCERY COURT OF SMITH COUNTY AT CARTHAGE, TENNESS EE HONORABLE C. K. SMITH , CHANCELLOR Stephen L. Edwards, #3489 The Pilcher Bldg., Suite 100 144 Second Avenue

, North Nashville, Tennessee 37201 ATTORNEY FOR PLAINTIF FS/APPELLEES Jack W. Robinson, Jr., #11656 Jacky O. Beller, #3157 230 4th Avenue No., 3rd Floor 212 Main Street P.O. Box 198888 P.O. Box 332 Nashville, Tennessee 37219-8888 Carthage, Tennessee 37030 Derrick C. Smith, #13961 300 James Robertson Parkway Nashville, Tennessee 37201-1107 ATTORNEYS FOR DEFENDANTS/APPELLANTS
AFFIRMED IN P

ART, REVERSED IN PART, REMANDED.
HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION
CONCUR: WILLIA M B. CAIN, JUDGE CONCUR IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE-2-

STATE OF TENNESSEE ON ) RELATION OF ERVIN SM ITH, and ) Smith Chancery ERVIN SMITH, individually, ) No. 5668 ) Plaintiffs/Appellee

s, )

) VS. ) ) L. B. FRANKLIN and

ALEX ) Appeal No. RICHMOND, CITY OF CARTHAGE, ) 01A01-9710-CH-00546 TENNESSEE, a municipal c orporation, ) MAYOR DAVID BOWMAN, ) ) Defendants/Appellant

s. ) 

## O P I N I O N
The plaintiff, Ervin Smith, has appealed from the judgment

of the Trial Court a

s to his rights in regard to an alleged public right-of-way on property adjoining plaintiff’s land.

The original compl ain t was filed July 26, 1994. The amended complaint alleges the following pertin

ent facts:

Plaintiff owns property at 1120

North Main Street, Carthage, Tennessee. Adjoining the east (rear) boundary of said property there has been an alley, lane or right -of -way known as Franklin Lane or Negro Cemetery Lane, ex tend ing south to Smother man Street. Defe

ndants, Franklin and Richmond are t

he owners of land

east of said

lane. In the development of said land defendants

have obstructed

said lane with debris, have elevated the level of their land and have violatedthe City Zoning and Building Cod es b y construction on their property across the subject all ey, l ane o r ri ght- of- way.

The complaint prays for an injunction against obstructing the lane or al ley , for a declaration that it

is a public street or that plaintiff has an easement thereon, that the city be required to enfo

rce its zoning re

gulations, and f

or damages and

fees.-3- The answer of the City of

Carthage and

its mayor denies that Franklin Lane is a city street or that plaintiff is

entitled to any

relief from them

.

The an swer of Franklin and Richmond asserts that they are the owners of the disput e d p roperty and that they have not unlawfully used it. Said defenda nts pled the s tatutes o f limitations,T.C.A. §§ 28-2-103, 105, 109, and 110, and denied that said defendants have attempted to make F

ranklin Lane

a city stree

t.

All defendants mov

ed for summary

judgment.

On October 1 6, 1996, th e Trial Jud ge entered ju dgment prov iding:

It is thereforeORDERED that the City’s and Mayor’s motion for summary

judgment on the g

round Plaintiff’s c

laim for a writ of mandamus is premature is hereby denied. It is further ORDERED that Plaintiff’s c

laims concerningzoni ng and the us e of Al ex Ri chmon d’s an d L. B. Franklin’s property for mi niwarehous e or minist orage purposes is hereby vo

luntarily dismissed with prejudice as to all Defendants. It is further ORDERED that the Plaintiff’s clai m s against the C ity of Cartha ge, Tennessee

and Mayor D

avid Bowmanfor damages, punitive damages, and attorneys’ fees shallnot be conside red b y this Court and are hereby transferred to

Circuit Court. It is further ORDERE

D that the Motion for Partial Summary Judgment of

Defendants Richmond and Franklin is granted as to the issues of easement by prescr ipt ion and easement by necessity, and Plaintiff shall have no ease ment by pr escr ipt ion or ea sem ent by ne cess ity.
On N ovember 2 6, 1996, counsel for plaintiff moved to amend the judgment to allow $34,207.00 litiga

tion expenses.

On December 2 1, the Trial Judge enter ed an order pr oviding:

It is hereby ORDERED, ADJUDGED AND DECREED that the public right-of-way heretoforeknown as Fr anklin Circle or Frank

lin Lane is a 50

-foot right-of-wa y-4- from Smo therman Drive ru nning northward

along the easte

rly bo undary line of the properties owned by David Lollar, Dr. David McDonald, Jerry

Shores and plaintiff Ervin Smith, and continuing northwardly to, but excluding, the property taken by the State o

f Tennessee for

the by-pass ; It is further ORD

ER ED, ADJUDGED AND DECREED that a Writ of M andamus shall issue to the defendant City of Cartha

ge, Tennessee

, and its mayor, defendant Mayor Davi

d Bowman, requir

i ng said defenda

nts to cure the blo ckage o f the public right-of-way heretofore known as Franklin C ircle or Franklin Lane by re quiring defendants

L. B. Franklin and

Alex Richmond to unblock and ope n sa id r ight -of -way; It is further ORDERED, ADJUDG ED AND DECREED tha t defendants L. B. Franklin and Alex Richmond shall p reven t the drainage from the fill area from going onto plaintiff’s property and to cover the are a in some manner, by grass or

oth erwise, to make it

not look so uns ight ly; It is further O RD ERED, ADJUDGED AND DECREED that plaintiff have a recover from defendants L. B. Franklin and Alex Richmond the sum of ONE THOUSAND TWO HUNDRED SEVEN TY -NINE AND 01/10 0 DOLLARS

($1,279.01 ), f

or which execution

shall issue, if nece ssa ry. It is further ORDERED, ADJUDGED AND DECREED that plaintiff

have and re cover from d efend ants L. B. Franklin and Alex Richmond the sum of FIVE HUNDRED DOLLARS ( $500.00), but whic

h shall be abated in full and stay

ed in the event sai

d defendants

either clean the mudoff the concret

e floor of plaintiff’s basement or cause the mudto be cleaned. In the event defendants shall

fail todo so, exe cut ion sha ll i ssu e up on m oti on o f pl ain tif f, i f nec ess ary. It is further

O RDERED, ADJUDGED AND DECREED that plaintiff shall recover no p unitive damages from defendants L. B. Franklin, Al ex Richmond, City of Carthage, Tennessee, and Mayor David B owman. It is fu rt her ORDERED, ADJUDGED AND DECREED that the costs of thi s cause are taxed

one-half to the defendant City of Carthage, Tennes see, and one-ha lf to defendants

L. B. Frank

lin and Alex Ric

hm ond, for which exe cut ion sha ll i ssu e, i f nec ess ary.

On April 29, 1996, the T rial Court award

ed plaintiff ju

dgment aga inst the City of Carthage for $

44,268.84 legal

expenses.-5- The City filed notices of appeal from the judgment entered on April 29, 1997.
The City presents the following issues for review: I. Was mandamus the proper procedure for determining whe the r Fra nkl in C irc le h ad b ecom e a pu bli c ri ght- of- way? II. W a s it proper to award attorneys’ fees to the prevailing party in a mandamus action? III. Was the am ount o f attorneys’ fees awarded contrary to the evidence submitted in support of the award and the trial court’s parameters for the fees it would allow? IV. Was it i mpr oper for the trial Court to deny the city’s request for discovery regarding claimed attorneys’ fees and a hearing regarding same?
Franklin and Rich

mond present the f

ollowing issues: A. Whether

the driveway in question is a public right-ofway. B. Whether

the Chancellor

erred in findingthat the rightof-way is 50 feet wide. C. Whether

the Plaintiff’s claims for equitable relief (for himself and other

s) are barred b

ecause of lach

es. D. Whether

the Plaintiff’s claims relating to the driveway andthe land in question are barred by applicable statutes of limitations. E. WhetherMr. Frankl in and Mr. R ichmond ar e responsible

for the water and mud damage to the plaintiff’s property in May, 1995. Plaintiff present

s the issues in the fo

llowing form: I. Whether

a writ of mandam

u s was the proper procedurefor opening a blocked public right-of- wa y where the opp one nts den ied it w as a p ubl ic r ight -of -way. II. Whether

in an action for writ of mandamus it is lawful to award reasona

ble attorney ’s fees to the pre vailing private citizen against th

e defaulting g

overnment. III. Whether

the awardof attorneys’ fees in successful writ of mandamus action was reasonable and upon the proper procedure.-6- IV. Whether

the claimed roadway in question was indeed a public right-of-way by

virtue of implied dedication. V. Whether

the Chancellor erred

in finding that the

rightof-way was 50 feet wide. VI. Whether

the plaintiffs’ c

laims for equitable

relief are barred by the doctrine of la

ches. VII. Whether

the plaintiffs’ claims for equitable relief are barred by applicable statu

te of limitations. VIII. Whether

the actions of abutting landowner s, Franklin/Richmond, caused th e wa ter damages to the plaintiff’s real property in May, 1995.
Plaintiff’s brief does not discuss the differences between a public road

which the public authority has accepted

and obligated itself to maintain, a public easement or right-of-way

which the general public has the right to use, and a private easement which belongs to a private person or is appurtenant to a particular tract of land.

Plaintiff insists that the lane in question became a public road by acquiscence

of certain municipal officials, by their oral statements or

acts of maintenance. There is no evidence that such acquiescence or action was committed by an official or body havi

ng authority

to obligate the city to accept and

maintain the subjec

t way as an o

fficial city

street. There is no evidence that the munici pa l legislative bod y or any other city o

fficial with autho

rity to do so ha

s so acted in respect to the subject lane.

A dedication is not a completed transfer of right or title. It is merely an offer which i s inaffective and cancellable until accepted by the a gency having the power to do so.

Since there isno evidence of authoritative acceptance, the City of Carthag e has no duties or liabilities in regard to the subject lane.

All parts of

the judgment of the Trial Court which impose responsibility or liability on the city are reversed.-7- Plaintiff next insists t

hat the subje

ct lane was a “public way,” that is, an easement acquired by

publicuse. There is no evidence that the subject lane has been used con

tinuously by the pu blic f or the time n ecess ary to cr eate a n ease ment b y prescr ipti on. It is uncontradicted that the lane was completely blocked by he avy and dense vegetation until cleare d bythe defendants,

Franklin and Rich

mond. Moreover, i

t is uncontroverted that former users of the lane
now use an entirely

different route. All parts of the judgment of the Trial Court which declare a public or private easement of the location and size urged by plaintiff a re reversed.
The only othe

r easement claim

ed by plainti

ff is a drainag

e easement.

The occupant of a tow

n lot or other lands , if injured in his possession by the obstruction of his natural drainage of surface water over the lower adjacent land, may recover damages for the injury done. Carlin v. Aurin , 103 Tenn. 555, 55 S.W. 940, 48 LRA 862, 76 Am. St. Rep. 699 (1899), Talley v. Baker , 3 Tenn. App. 321 (1926).

A wrongful interference

with the natural flow of surface water from property on a higher elevationto andacross lower adjacent property constitutes an actionable nuisance. Zollinger v. Carter , Tenn. App. 1992, 837 S.W.2d 613. Kind v. Johnson City , 63 Te nn. App. 666, 478 S.W.2d 63 (1970).

It is undisput ed th at the surface water on the land of plaintiff naturally flowed to a nd
acrossthe sub jec t la ne t o an d acr oss the lan d ofFran kli n an d Ri chm ond unt il a bou t mo the r’s day, 1994, when Franklin

and Richmond obstructed the subject lane with debris and raised the level of their land by filling, and that prior to the obstruction of the lane by debris and the raising of the level of the land of Franklin and Richmond by filling, plaintiff was never troubled b y excessive surface water; but that, upon said obstr

uction and filling, his land and basement were flooded with surface water.-8- It is true that the construction of the “by pass” by the public authority produced a larger volume and concentrat

ion of surface w

ater flow, but the

re is no evi dence to show that this additional flow of water would have reach ed the plain

tiff’s premises if the lane has not been obstructedor the land of Fr anklin and Richmond had not beenraised by f illing. Plaintiff’ s suit, filed in July, 19

94, was clearly

within the statute o

f limitations.

The Trial Judge found that plaintiff suffered $500 damages by

flooding and mud i

n his basement caused by the wrongful acts of the defenda nts, Franklin and

Richmond, and rendered judgment a gain st them therefor. The evidence does not preponderate against this part of the judgment which is affirme

d. TRAP Rule

13(d). In event of future

flooding, plaintiff retains the right to sue for recurrent

damage. Smith v. City of Covington , Tenn. App. 1985, 734 S.W.2d 327.

There is no evidence to sup port the remainde

r of the judgment

which is reverse

d an d vacated. Costs of this appeal and of the Trial Court a

re taxed against

the appellees,

Franklin and Richmond.

The cause is remande

d to the Trial Court f

or entry an

d enforcement of

judgment in conformity with this opinion. AFFIRMED IN P ART, REVERSED IN PART, REMANDED.

_________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTIO N CONCUR:

_____________________________ WILLIA M B. CAIN, JUDGE
CONCUR IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE