§56.4 Damages for Temporary Nuisance

The Case: Pryor v. Willoughby , 36 S.W.3d 829 (Tenn. Ct. App. 2000).

The Basic Facts: Plaintiff homeowners brought suit against defendant because a change in the grade of adjoining property caused plaintiffs’ sewer to back-up.

The Bottom Line:

• “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.” 36 S.W.3d at 829.
• “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).” Id. at 831.
• “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. 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).^FN1

  FN1 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.”

  Id. at 832.
• “In such a situation, a plaintiff is not being compensated for not receiving rents that she would 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.” Id.
• “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.” Id.

Other Sources of Note: Pate v. City of Martin , 614 S.W.2d 46 (Tenn. 1981) (plaintiff may be entitled to injunctive relief especially where nuisance is likely to continue).

Recent Cases: Dye v. Lipps , No. E2008-00891-COA-R3-CV, 2009 WL 1138124 (Apr. 27, 2009) (upholding damages award for temporary nuisance based on loss of use and enjoyment of the property).