### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE GEORGE PRYOR, ET AL 

### . v. TIM WILLOUGHBY, ET AL 

### . Direct Appeal from the Chancery Court for Wilson County

No. 96357 C.K. Smith, Chancellor

No. M1999-00668-COA-R3-CV - Decided April 26, 2000

This case involves the proper measure of dama

ges on a nuisanc

e claim. The trial court awarded the plaintiffs d am ages for the cost of restoring their property to the condition it was in before the defendants’ negligence caused their septic system to back up a nd o verflow into their house. The court also awar ded th em damages for discomfort, inconvenience, embarrassment and emotional distress. The plaintiffs fil ed a motion to

alter or amend the judgment, arguing that they wer e entitled to additional damages, measured by the decline in the rental value of their property during the time that the nuisance persisted. The trial court denied themotion because the plaintiffs never rented out their house, but continued to reside in it despite the existence of the nuisance. We find that the plaintiffs are entitled to compensation for the loss of use and enjoyment of their property , measured by the decli

ne in its rental val

ue, and we acco

rdingly re verse the trial c

ourt. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Chancery Co

urt Reversed and Remanded. C ANTRELL , P.J., M.S., delivered th e opinion of the co

urt, in which K OCH and C OTTRELL , JJ. joined. Ph ilip Elbert and Kendra Samson, Nashville, Tennessee, for the appellants, George Pry or and Sharo n Pryor. Michael Mills and Bryan Smith, Brentwood, Tennessee, for the appellees, Tim

Willoughby and Jane Wil lou ghby.

OPINION
I.
In September of 1990, George Pryor and his wife Sharon pur chased a home at 1809 Lake Meadow Trail in

Mount Juliet. In 1994, Tim Willoughby and his wife Jane purchased the adjoining lot at1811 Lake Meadow Trail. In the summer of 1995, the Willoughbys began construc tion of a new hou se o n th e pro pert y.-2-

As part of the constr

uction, the Willoug

hbys alt ered t he pre-existing g

rade of their lot. Rainwater

had previously

drained off

the Pryors’ lot across the Willou ghbys’ lot,

and into a culvert

. The new grading c

hanged th

e natural d

rainage of the land, and caused substantial quantities of rainwater to collect on the Pryors’ front lawn, and to remain there f or days at a time. This pooling of

water was directly above the Pry ors’ septic tank. OnApril 29, 1996, Mrs. Pryor was doing laundr

y whe n she heard water gurgling in a sink. She went into the master bathroom, where she saw th at s ewage water was pouring out of the drains in the shower stall and bathtub, and out of the toilets. To prevent a recurrence of

such an event, the

Pryors had to

have their septictank and field line

s uncovered, and

the septic tank pumped. Thereafter, they had to leave the lid of the septic tank off. George Pryor aske

d Tim Willo ughby to meet with him and with a plumber to discuss the problem. After the meeting, Mr. Willou ghby said h e was going to tu rn it over to Allstat

e, his insurance carrier. The Pryors claim that the Willoughbys made

no other eff ort to corre ct the drain age problemthey crea

ted, despite

the fact that their next door neighbors had an open septic tan

k in their front yard as a result of their conduct. Sharon Pryor testified as to the odors coming from the openseptic tank, the alteration of her normal habits of water usage for fear of worsening the problem, and the impossibility of entertaining friends in the Pryor home. S he was asked to de scribe an attemp

t to use the home for

a family reunion on Christma

s of 1996: “How can I explain it? It was the first time in 12 years that we had all

of our children together and grand children and we w ere looking to g

et a family p

ortrait done, and you ge

t up t he morning af ter Christ mas, after f inally findin g a photographer

that will do it,and then no one can take showers, no one can go to the bathroom, you’re stopping at a gas station or whatever, try ing to go to the bathroom and make do.” On June 28, 1996, the Pryors’ attorney sent a letter to the A llstate Claims Representative, demanding prompt remedial action. Such action was not forthcoming, and on September

3, 1996, the Pryors filed their complaint for nuisance and trespass. This finally had the desired effec t, and the Willoughbys corrected the drainage problem in Dec ember of 1996. By that time, the soil in the Pryors’ yard had become s o saturated from the water that they hadto install new field

lines a nd a septic pump. Those repairs could not be completed and the plaintiffs’ septic s ys tem could not be permanently closed, until March of 1997, because of the weather. The trial of this case was conducted on September 14, 1998. At the conclusion of the proof, the trial judge found that the actions of the defendants constituted a nuisance and a trespass on the plaintiffs ’ propert y. The trial court entered its judgment on October 6, 1998, finding that the1 Appellees point out that Tennessee courts have used other measures to value

the injury to use and enjoyment of property, and c ite to us the case of Anthony v . Construc tion Products, Inc ., 577 S.W.2d 4 (Tenn. Ct. App. 1984). In that case, damages for a nuisance that interfered with the operation of

a conve nience store were appropriately measured by the profits that were lost during the persistence of the nuisance. In the case o f residential pro perty, howe

ver, the most relia

ble measure will generally be the decrea se in rental value.

-3- plaintiffs were entitled to recover the expenses they incurred to correct the damage that the

ir property hadsuffered as a r

esult of the defendan

ts’ wrongful inte

rference with

the natural drainage of surface water. The court also fo und that the pl aintiffs had suffered discomfort, inconvenience, embarrassment

and emotional di stress, because of the defendants’ conduct, and awarded them $2,500 for those da

mages. The tota

l judgment awar

d was $17,040.61 plu

s costs. On November 2, 1998, the Pryors filed a motion to alter or amend the judgment, to include damages for the lost rental value of their property during the periodof the nuisance. On May 17, 1999, the trial court entered an order denying the motion to alter or ame nd, but awarding the plaintiffs discretionary costs in the amount of $1,005.15 , pursuant to Tenn. R. Civ. P. 54.04(2). The Pryors subsequently appealed. II. The court’s judgment of October 6, 1 998 includ ed the foll owing findi ng: 13. Because they continued to reside in the residence

during the period of the nuisance and trespass, the Court finds the Plaintiffs are not entitled to damages for the decrease in rental value of their property during the existence of the nuisance and trespass. The appellants correctly point out that this is not an accurate statement of the law. A party that has been subjected to a nuisance may be entitled to several ty pes of damages. These damages may include the cost of

restoring the pl

aintiff’s proper

ty to its condition prior t

o the creation of the nuisance, personal damages such as inconvenience and emotional distress, and injury to the use and enjoyment of her property. Such damages ar e not mutually

exclusive. See Citizens Real Estate v. Mountain States Development Corporation , 633 S.W.2d, 763, 767 (Tenn. Ct. App. 1981).
A temporary nuisance i s one tha t ca n be corr ect ed b y the exp end itu re of lab or an d mo ney. Caldwell v. Knox Concrete Produ cts, Inc. , 391 S.W.2d 5, 11 (Tenn. Ct. App. 1964). In cases of temporary nuisance, the

normal way

to measure injury to the use and enjoyment of pr operty is the decrease in rental

value of the property while the nuisance exists. See Pate v. City of Martin , 614 S.W.2d 46, 48 (Tenn. 1981); Citizens Real Estate v. Mountain States Development Corporation , 633 S.W.2d, 763, 767 (Tenn. Ct. App. 1981). 1
In such a situation, a plaintiff is not being compensated for not receiving r

ents that she would-4-

otherwise have been able t

o colle ct, but because she was unable to use or enjoy her property in a manner commensurate wit

h its pre-nuisance value. It therefore follows that property owners cannot be disqualified from an aw ard of d amages measur ed by the de

crease in the re

ntal value of thei

r property, simply because they continue to live on it despite the nuisance. While we know o f no Tenne ssee case that ha s dealt with the que

stion directly

, appellants have directed our att

ention to two nuisan

ce cases from ot

her jurisdictions w

hich have specif

ically held that continued residence on one’s own property throughout a period of nuisance does not bar a plaintiff from collecting damages based on reduction in its rental value. Those cases are Miller v. Town of Ankeny , 114 N.W.2d 910 (Ia. 1962), which deals with odors from a sewage treatment plant adjoining the plaintiff’s farm, and Spaulding v. Cameron , 274 P.2d 177 (Ca. App. 1954), which deals with potential mudsli des fr om the dist

urbance of dirt ab

ove the pl

aintiff’ s propert

y. We approve the rea

soning of those c

ases. Sharon Pryor worked as a realtor. At trial she was aske d what a home like hers w ould normally rent for if the

septic system were working normally. Ms. Pryor noted that the house had over 3500 square feet and a full basement, and stated that in that neighborhood, it would bring anywhere from $2,000 to $2,20

0 per month in rent.

She was then asked, “[a]s a realtor, do you think there was any wa

y you c ould have rented

that house with

the septic tank not working and the sewage going in the front yard?” She answered “No.” While Mrs. Pryor’ s response could s upport a conclusion that the rental valueof the property was reduced to

zero, we believe

the better interp

retation to be tha

t the septic proble

ms had reduced its value to a de minimus l evel. In revers ing t he trial cour t, we therefore grant the appe

llants a judgment of $20,000 for the loss of rental value of their property during

the period of the nuisance. This judgment is in addition to the amounts awarded the plaintiffs by the trial court. Post-judgment interest will accrue on the

$20,000 from the da

te this opinion is

filed. See Rule 41, Tenn. R. App. P. III. The trial court’s order denying the plaintiffs’ motion to alter or amend is reversed. Remand this cause to the Chanc

ery Court of

Wilson County fo

r further proce

edings consisten

t wit h thi s opinion. Tax the cost

s on appeal to the a

ppellees.