FILED

June 5, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

NORMAN MAYES, et ux. ) KNOX COUNTY

) 03A01-9706-CV-00203

Plaintiffs-Appellants- )

Appellees )

)

v . )

 )

CLAUDE YOW, et ux. ) HON. HAROLD WIMBERLY, 

) JUDGE

Defendants-Appellants )

 )

and )

)

WILLARD SCARBRO, et ux. )

)

Defendants-Appellees ) AFFIRMED AND REMANDED

DONALD E. OVERTON OF KNOXVILLE FOR NORMAN MAYES, ET UX

GREGORY F. COLEMAN OF KNOXVILLE FOR CLAUDE YOW, ET UX

DAVID L. BUUCK and GLEN R. CLAIBORNE OF KNOXVILLE FOR WILLARD

SCARBRO, ET UX

 O P I N I O N

 Goddard, P.J. 

This appeal results from a suit brought by Norman Mayes

and his wife, Ruth Mayes, against Claude Yow and his wife,

Frances Yow, Willard Scarbro and his wife, Cleo Scarbro, who was
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added as a party Defendant subsequent to the filing of the

original complaint, and Partners & Associates, Inc. 

The Mayeses sought damages alleging that the Defendants

created a continuing temporary nuisance by unlawfully channeling

and discharging surface water from their higher property onto the

Mayeses' lower property. 

After a trial in July 1992, the jury returned a verdict

in favor of the Defendants Scarbro and against the Defendants Yow

and awarded damages in the sum of $400,000. The claim against

the Defendant Partners & Associates, Inc., was settled prior to

trial.

The Yows filed a motion for a new trial which, insofar

as it contended the verdict of the jury was excessive, was

granted by the Trial Court. A second trial began on April 22,

1996. However, during the course thereof the Trial Court

declared a mistrial. The third trial occurred in August 1996

with a jury considering the damages for the period covered in the

first trial, as well as liability and damages accruing

thereafter. In the third trial the jury found damages for the

first period--November 8, 1986, through July 9, 1992--in the

amount of $268,769, and again found liability as to the

Defendants Yow and assessed damages as to the second period--July

10, 1992, through August 28, 1996--at $229,183.
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Both the Mayeses and the Yows appeal. The Yows appeal

raises five issues as follows: 

I . Whether the Trial Court erred by not ordering

separate trials and by allowing the jury to consider

both the issue of damages on retrial from the first

trial of July, 1992, and the issue of causes of actions

and damages arising subsequent to the first trial.

II. Whether the Trial Court erred by not limiting the

trial to issues of causation and damages to the events,

occurrences and transactions up to the time of the

filing of the complaint.

III. Whether the jury’s award is supported by credible

proof and is in excess of the range of reasonableness.

IV. Whether the Trial Court erred by allowing the jury

to speculate as to the amount of diminution of fair

rental value allegedly suffered by the Plaintiffs when

no evidence was presented to support the jury’s

verdict.

V . Whether the Trial Court erred by not charging the

jury with the instructions requested by Defendants as

outlined in Defendants’ motion for new trial.

The Mayeses' appeal raises the following issue:

Whether or not the jury could have reached the verdict

they did in finding for Defendants Scarbro in July

1992.

The testimony received in both trials is extensive and

sharply disputed. Suffice it to say that there is material

evidence that the Defendants Yow created and maintained the

temporary nuisance as alleged by reason of improving their higher

land by constructing a shopping center, motel and the like.
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As to the first issue, the Yows argue that the Court

committed prejudicial error by allowing the jury in the last

trial to try the damages resulting to the Mayeses' property as a

result of the finding of liability by the first jury. They argue

that the fact the jury knew that the Yows had already been found

liable deprived them of a fair trial in that the jurors would be

prejudiced in favor of the Mayeses by reason of this knowledge.

In the second trial the Yows introduced considerable

evidence as to the improvements made subsequent to the first

trial. It would seem even if the jury was not specifically

advised of the result of the first trial it could have easily

deduced that the Yows conceded there was a problem or they would

not have incurred the expense incident to their corrective

action.

It would also appear that if the Yows had taken no

corrective action after the first trial, the Mayeses might very

well be entitled to a directed verdict as to liability on the

theory of res judicata . 

We conclude that trying the case as the Trial Judge did

rested in his sound discretion and, under the facts of this case

we find no abuse.

Apropos of the second issue, the Yows rely upon Harman

v. Louisville, N.O. & T.R. Co. , 87 Tenn. 614, 11 S.W. 703 (1889);
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Fox v. Corbitt , 137 Tenn. 466, 194 S.W. 88 (1917); and Henegar v. 

International Minerals & Chemical Corp. , 209 Tenn. 355, 354

S.W.2d 69 (1962).

In Harman the plaintiff was suing a railroad because of

a nuisance created in the use of its railroad tracks adjacent to

the plaintiff's property. In the course of the opinion

discussing the damages recoverable, the Court stated that each

recovery should embrace "only the damages sustained up to the

commencement of the action."

We first observe that apparently Harman is a dissenting

opinion, and the majority opinion, which it appears is not

published, held that because of a previous suit brought by the

plaintiff, a suit where he recovered a judgment which was paid,

the doctrine of res judicata , was applicable and his suit was

dismissed on that account. Additionally, it does not appear that

the question of the period for which the plaintiff could recover

was at issue. 

The second case, Fox v. Corbitt , also found recovery

was limited to the date of the bringing of the suit, citing the

dissenting opinion in Harman . We also note that in this case the

period recovery might be allowed was likewise not at issue. 

We also note that Fox holds that the rule in equity is

different from that stated in Harman , and where the principal
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relief is injunctive, damages may be recovered to the date of

trial. In the case at bar, however, although an injunction was

sought for it was not, in our view, the principal relief sought. 

We say this because a preliminary hearing was held as to the

issuance of an injunction which was denied by the Court and not

made an issue on appeal. Thus, we do not believe the awarding of

damages to the date of trial could be predicated upon the rule in

equity.

The case of Henegar v. International Minerals is the

only relative recent case on the subject. In this case the Court 

held that plaintiffs who had brought suit for a temporary

nuisance to real estate for a period of October 1, 1957, to

October 1, 1959, and later amended their declaration to reduce

the period covered in the suit from October 1, 1957, to October

1, 1958, could not in a later suit recover for damages for the

period deleted from the first suit. It is true the trial court

cited Harman with approval, but it appears that Henegar was

decided principally on the basis of splitting a cause of action

and res judicata rather than the rule in Harman .

Apropos of issues of two and three which question the

sufficiency of the evidence, we note the land in question

contains approximately 85 acres, 25 of which is within the

floodway and not usable. The remaining 60 acres, however, is

usable, but before the property could be developed, it would be

necessary to expend a substantial sum to raise the level of the
1

Both monthly figures are approximate.

7

land above the flood plane before the property could be developed

to its highest and best use. The cost of doing so, according to

the proof, would be in excess of $2,000.000. Notwithstanding

this substantial expenditure, the Mayeses expert witness as to

value estimated the property would have a rental value of

$378,000 per year, or $31,500 per month, and that in its present

state, with the water problem present, would have a value only

for agriculture which would be approximate $6000 per year or $500

per month, the monthly difference being $25,500. We also note

that the expert who testified for the Yows does not dispute the

Mayeses' expert as to the value of the property without a water

problem, even though a substantial expenditure would have to be

made before it could be developed. He did not purport to place a

dollar value on the property as it presently stands, although he

did agree it could only be used for agricultural purposes.

Thus, there is credible material evidence in the record

that the property was depreciated by reason of the water problem. 

The jury awarded the sum of $268,769 as to the first period,

which would amount to $3,950 per month, and $229,183 for the

second period, or $4,540 1

 per month. Both of the awards are well

below the proof introduced.

Finally, we address the three special requests refused

by the Trial Court, which are raised as issues in this appeal, as

follows:
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1

“The defendants are not responsible for injuries which

may be sustained by plaintiffs, caused by water

diverted from its natural flow and into the road

ditches by others for whose acts neither of the parties

is responsible.”

2

“The upper land owner has an easement for drainage

of surface water in its flow of the lower land of an

neighboring land owner. If the lower land owner places

an obstruction of any character upon his land that

arrests or interferes with such natural drainage such

that he has caused an injury to himself, then his own

action has contributed to his damages and he is barred

from recovery.”

3

“A landowner whose property is in its natural

state and when in its natural state is lower in

elevation than an adjoining landowners property, such

lower landowner must accept the natural flows of water

from higher lands, so long as the water flows in the

direction, speed, quality, and at no greater peak rate

of discharge or volum etric rate of flow as it would in

its natural state. Such flows of water are not and

cannot be a nuisance. However, owners of higher land

do have a duty not to interfere with the natural water

runoff. If the owner of higher land discharger water

upon the lower landowner in a direction or at a speed

or at a greater peak rate o f discharge or volume tric

rate of flow or quality different from the natural flow

than the owner of such higher land has created a

nuisance and is liable to the owner of the lower land

for any damages to the property of the lower landowner

that proximately result.” (Emphasis in brief of Yows.)

As to the first two requested charges, we believe the

charge the Trial Court gave to the jury, hereinafter quoted,

which tells the jury the Yows are only responsible for the

diversion in water caused by them, which inferentially and, we

think, sufficiently told the jury that the Yows would not be

responsible for any water diversion not caused by them, nor for
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any damage that might be occasioned by acts of others or of the

Mayeses.

Court's Charge

Now, what is a reasonable use of real estate land? 

What is a reasonable use of land which a landowner has

a duty to accept, and whether or not a particular use

is an unreasonable invasion of another landowner's use

and enjoyment of their property is not established by

exact rules, but depends upon the circumstances of the

use as an ordinary prudent landowner would be expected

to endure, considering the locality and character and

surrounding, the nature and utility and the social

value of the use. The extent and nature of the harm

involved, the nature, the utility and the social value

of the adjoining use and the enjoyment invalidated.

If a use of property is such that an ordinarily

prudent landowner would be expected to endure,

considering the circumstances, and is a use of property

that an ordinarily prudent adjoining landowner should

be reasonably expected to exercise under the

circumstances, then it would not be a nuisances.

With respect to the subject matter of this

lawsuit, the landowner whose property is in its natural

undisturbed state, and whose property is lower than the

adjoining land of a neighbor, must accept the natural

flows of water from higher land. So long as the water

flows in the direction, the speed, quality and volume

as it would in its natural state. Such flows of water

are not and cannot be a nuisance.

However, the owners of higher land have a duty

under law not to interfere with the natural water

runoff. If an owner of higher land discharges water

upon a lower landowner in a direction or at a speed, or

in larger volumes, that is unnatural quantities, or a

quality different from natural flow, then the owner of

such higher land has created a nuisance and is liable

under law to the owner of the lower land for any

damages to the property of the lower landowner that

proximately result from this nuisance.

It does not matter in these situations whether an

owner of the higher land used due care, extraordinary

care or was negligent or complied or sought to comply

with any existing government regulations, or any

approved plan. The only question under law is whether

the higher landowner has altered the natural flow of
1 0

the water, and is thereby caused injury to plaintiffs

property.

A nuisance which can be corrected by the

expenditure of labor or money is what is called in law

a temporary nuisance. If and when a temporary nuisance

is found to exist by a preponderance of the evidence,

the landowner of the property adversely effected may

recover money damages for damages proximately caused by

the nuisance in question.

As to the third rejected charge, counsel for the Yows

concedes in his brief that the charge does not reflect the

present state of Tennessee law when it speaks of "no greater peak

of discharge for volumetric rate of flow," and that we should

adopt the rule expressed in the charge rather than as adopted in

Tennessee case law. However, it is not the prerogative of an

intermediate appellate court to disregard established substantive

law.

We now turn to the issues raised by the Mayeses in

their capacity as Appellants, which has hereinbefore been set

out. 

Our reading of the record persuades us there is

material evidence from which the jury could find that the

improvements made by the Scarbros did not increase the water flow

from their property and did not damage the property of the

Mayeses. The proof also shows that the total acreage of the

Scarbros was minuscule (52 acres) compared to the area (31,990

acres) draining onto the Mayeses property.
1 1

Finally, we note that the Mayeses did not file a motion

for a new trial nor a motion for a judgment notwithstanding the

verdict, nor for a judgment in accordance with their motion for a

directed verdict in connection with the first trial. Under the

provisions of Rule 3(e) of the Tennessee Rules of Appellate

Procedure, their failure in this regard is fatal to the issue

here raised.

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for collection of the

judgments and costs below. Costs of appeal are adjudged threequarters against the Yows and their surety and one-quarter

against the Mayeses and their surety. 

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Herschel P. Franks, J.

________________________________

Don T. McMurray, J.