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 damages on a nuisance claim. The trial court awarded the

plaintiffs damages for the cost of restoring their property to the condition it was in before the

defendants’ negligence caused their septic system to back up and overflow into their house. The

court also awarded them damages for discomfort, inconvenience, embarrassment and emotional

distress. The plaintiffs filed a motion to alter or amend the judgment, arguing that they were 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 the motion 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 decline in its rental value, and we accordingly reverse the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and

Remanded.

CANTRELL, P.J., M.S., delivered the opinion of the court, in which KOCH and COTTRELL,JJ. joined.

Philip Elbert and Kendra Samson, Nashville, Tennessee, for the appellants, George Pryor andSharon

Pryor.

Michael Mills and Bryan Smith, Brentwood, Tennessee, for the appellees, Tim Willoughby and Jane

Willoughby.

OPINION

I.

In September of 1990, George Pryor and his wife Sharon purchased a home at 1809 Lake

Meadow Trail in Mount Juliet. In 1994, Tim Willoughby and his wife Jane purchased the adjoining

lot at 1811 Lake Meadow Trail. In the summer of 1995, the Willoughbys began construction of a

new house on the property.
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As part of the construction, the Willoughbys altered the pre-existing grade of their lot.

Rainwater had previously drained off the Pryors’ lot across the Willoughbys’ lot, and into a culvert.

The new grading changed the natural drainage of the land, and caused substantial quantities of

rainwater to collect on the Pryors’ front lawn, and to remain there for days at a time.

This pooling of water was directly above the Pryors’ septic tank. On April 29, 1996, Mrs.

Pryor was doing laundry when she heard water gurgling in a sink. She went into the master

bathroom, where she saw that sewage 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

septic tank and field lines uncovered, and the septic tank pumped. Thereafter, they had to leave the

lid of the septic tank off.

George Pryor asked Tim Willoughby to meet with him and with a plumber to discuss the

problem. After the meeting, Mr. Willoughby said he was going to turn it over to Allstate, his

insurance carrier. The Pryors claim that the Willoughbys made no other effort to correct the drainage

problem they created, despite the fact that their next door neighbors had an open septic tank in their

front yard as a result of their conduct. 

Sharon Pryor testified as to the odors coming from the open septic 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. She was asked to describe an attempt to use the home for a family

reunion on Christmas of 1996: 

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

children together and grandchildren and we were looking to get a family portrait

done, and you get up the morning after Christmas, after finally finding 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, trying to go to the bathroom

and make do.”

On June 28, 1996, the Pryors’ attorney sent a letter to the Allstate 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 effect, and

the Willoughbys corrected the drainage problem in December of 1996.

By that time, the soil in the Pryors’ yard had become so saturated from the water that they

had to install new field lines and a septic pump. Those repairs could not be completed and the

plaintiffs’ septic system 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’ property. The trial court entered its judgment on October 6, 1998, finding that the
1

 Appellees point out that Tennessee courts have used other measures to value the injury to

use and enjoyment of property, and cite to us the case of Anthony v. Construction 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 convenience store were appropriately measured by the profits that were lost during

the persistence of the nuisance. In the case of residential property, however, the most reliable

measure will generally be the decrease in rental value. 

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plaintiffs were entitled to recover the expenses they incurred to correct the damage that their property

had suffered as a result of the defendants’ wrongful interference with the natural drainage of surface

water. The court also found that the plaintiffs had suffered discomfort, inconvenience,

embarrassment and emotional distress, because of the defendants’ conduct, and awarded them

$2,500 for those damages. The total judgment award was $17,040.61 plus 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 period of the nuisance. On May 17,

1999, the trial court entered an order denying the motion to alter or amend, 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, 1998 included the following finding:

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 types of damages. These damages

may include the cost of restoring the plaintiff’s property to its condition prior to 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 are 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 is one that can be corrected by the expenditure of labor and money.

Caldwell v. Knox Concrete Products, 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 property 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 rents that she would
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otherwise have been able to collect, but because she was unable to use or enjoy her property in a

manner commensurate with its pre-nuisance value. It therefore follows that property owners cannot

be disqualified from an award of damages measured by the decrease in the rental value of their

property, simply because they continue to live on it despite the nuisance.

While we know of no Tennessee case that has dealt with the question directly, appellants

have directed our attention to two nuisance cases from other jurisdictions which have specifically

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 mudslides from the disturbance of dirt above the plaintiff’s property. We

approve the reasoning of those cases.

Sharon Pryor worked as a realtor. At trial she was asked what a home like hers would

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 $2,200 per month in rent. She was then asked, “[a]s a realtor, do you think

there was any way you could 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 support a conclusion that the rental value of the property

was reduced to zero, we believe the better interpretation to be that the septic problems had reduced

its value to a de minimus level. In reversing the trial court, we therefore grant the appellants 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 date 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 Chancery Court of Wilson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellees.