Granberry v. Jones
| Decision Date | 17 January 1949 |
| Citation | 216 S.W.2d 721,188 Tenn. 51 |
| Parties | GRANBERRY v. JONES et al. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Coffee County; G. W. Woodlee Chancellor.
Suit by Rucker E. Granberry against Theresa Jones and Henry T. Jones to enjoin defendants from permitting a hedge to protrude over or upon plaintiff's property, and for other relief. From a decree overruling defendants' demurrer to bill defendants appeal.
Decree reversed and bill dismissed.
Roy L. Mitchell, of Tullahoma, for appellants.
Warden & Warden, of Manchester, for appellee.
Granberry appellee here, and Miss Jones, appellant here, each owned a residence on adjoining lots in Tullahoma. Due to the narrow frontage, Granberry's residence is a little less than five and one-half feet from the boundary line between the two properties.
Miss Jones planted an evergreen shrubbery hedge entirely on her side and within a few inches of this boundary line. This hedge has grown to a height of about twenty feet and its branches and foliage have grown over the boundary line and over Granberry's property to such an extent as to rest against that side of Granberry's resident and there enter the windows of this residence when they are open.
Granberry filed this bill seeking to permanently enjoin Miss Jones and her brother, as agent, from permitting this hedge to protrude over or upon his property, and for a decree requiring her to move the hedge entirely or, in the alternative, cut it down to a height of not more than twenty-four inches and to keep it that way, and for damages. Complainant was granted, upon his prayer, a temporary injunction from interference in cutting so much of the foliage and branches as hang over his lot.
The defendants, Miss Jones and brother, demurred to this bill on the grounds that (1) the defendant had the legal right to grow this shrubbery on her own property to any height she desired, and (2) if any of the branches or foliage thereof protruded over complainant's land, his remedy was only to protect himself therefrom by cutting such hedge to the extent of the protrusion, and (3) the damage alleged to have been inflicted and for which the injunction and damages are sought are shown by the face of the bill to have been caused by the failure of Granberry over a long period of time to exercise his right to cut these overhanging branches and foliage; that is, acquiescence and laches. The Chancellor overruled the demurrer and allowed this appeal.
In addition to the allegations hereinabove stated as facts, the bill alleged that these overhanging branches and foliage had caused the outside wall of complainant's home 'to rapidly commence to rot and decay', and the sills and woodwork have been caused to rot to such an extent that they will have to be replaced by reason of the constant leaning against them of this hedge 'unless the nuisance of said hedge is soon abated', and that this hedge destroys the view from these windows and deprives that side of complainant's residence of air and light, and the ground on that side of the house is always soggy, even in extreme dry periods, thereby furnishing sanctuary for insects, and otherwise menacing health, and has caused a plank fence of complainant to rot to such an extent as to necessitate a new one; that by reason of these conditions the house is not rented and its rental value has been substantially reduced.
Necessarily implied within the allegations just recited is a statement that the complainant has permitted this intrusion for a very long period of time, as it would require such period for overhanging shrubbery to put the property in the physical condition alleged. There is no allegation that the defendant was ever notified of this condition, or requested to correct it. There is an allegation that if the complainant undertook to correct the situation it probably would result in a breach of peace. No experience or other facts are alleged to support this conclusion. Being only a conclusion, it cannot be treated as an allegation of fact in testing this demurrer. On the other hand, the demurrer concedes the right of complainant to cut the branches and foliage in so far as they hang over his property.
We find no Tennessee case where resort to a Court of equity has been attempted on the facts alleged by this bill.
In so far as the bill alleges a deprivation of air and light by reason of the height of this shrubbery, or seeks an order to cause its removal or limit its height, the bill is without equity. Every owner of land has dominion of the soil, and above and below to any extent he may choose to occupy it with some exceptions not pertinent here. Humes v. Mayor of Knoxville...
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Lane v. W.J. Curry & Sons
...brought for harm caused by encroaching tree branches and roots, both lower courts relied on this Court's decision in Granberry v. Jones, 188 Tenn. 51, 216 S.W.2d 721 (1949). In Granberry, the parties owned residences on adjacent lots. The defendant planted a hedge row on her property near t......
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State v. Layne
...to an indefinite extent.) 2A C.J.S. Aeronautics and Aerospace, § 8. Our Supreme Court recognized the doctrine in Granberry v. Jones, 188 Tenn. 51, 216 S.W.2d 721, 722 (1949), with the statement that "(e)very owner of land has dominion of the soil, and above and below to any extent he may ch......