Jones v. L & N R. Co.

• Decision Date: 16 March 1981
• Citation: 617 S.W.2d 164
• Parties: Dudley P. JONES and Thelma Jones, d/b/a Dairy King; Oliver Pass, d/b/a Kopy-Kat Printers; Dudley E. Blair, Plaintiffs-Appellees, v. The L & N RAILROAD CO., et al., Defendants, and State of Tennessee, Defendant-Appellant.
• Court: Tennessee Court of Appeals

Page 164

617 S.W.2d 164

Dudley P. JONES and Thelma Jones, d/b/a Dairy King; Oliver

Pass, d/b/a Kopy-Kat Printers; Dudley E. Blair, Plaintiffs-Appellees, v. The L & N RAILROAD CO., et al., Defendants, and State of Tennessee, Defendant-Appellant.

Court of Appeals of Tennessee, Middle Section.

March 16, 1981.

Permission to Appeal Denied by Supreme Court May 26, 1981.

Abridged Opinion June 17, 1981.

Crawford, Ozment & Bolin by Elliott Ozment, Nashville, for plaintiffs-appellees.

Donald Schwendimann & Don Corlew, Asst. Attys. Gen., Nashville, for defendant-appellant.

Dobson, Harris, Robinson & Aden by Tyree B. Harris, Peter H. Curry, Howell & Fisher by John Branham, Nashville, McKinney & Everett by James McKinney and James Everett, Madison, Charles W. Bone, Gallatin, for defendant.

ABRIDGED OPINION

TODD, Presiding Judge.

(With the concurrence of participating judges, the original

opinion has been abridged for publication.)

This is an extraordinary appeal by one of the defendants, The State of Tennessee, from an order of the Chancellor overruling the motion of the State to dismiss on grounds of sovereign immunity.

The plaintiffs, owners or lessees of property in the vicinity of Seven Mile Creek and Mill Creek in Davidson County, sued the Louisville and Nashville Railroad Company, John T. Dugger, Jr., and Thomas K. Sanders d/b/a Space Park Company, Hardaway Construction Company, Inc., The State of Tennessee and Metropolitan Government of Nashville and Davidson County, Tennessee, for damages and abatement of a nuisance consisting of obstruction of flow of said creeks.

The complaint alleged wrongful acts by each of the defendants. As to the State, the allegations are construction, ownership and maintenance of Thompson Lane, Murfreesboro Pike, Interstate 24 and Nolensville Pike, including bridges across Mill Creek and appurtenant approaches which obstruct the flow of Mill Creek, a navigable stream, and cause flooding of plaintiffs' property. Plaintiffs specific complaints are:

1. Too small bridge opening.

2. Obstruction by piers or tents.

3. Skewed piers.

4. Too high approach fills.

The State moved to dismiss on the ground of failure to state a claim upon which relief can be granted against the State and lack of jurisdiction of the Court over the subject matter of the complaint against the State.

The Chancellor filed no written opinion but overruled the State's motion to dismiss.

On appeal, the State submits a single issue as follows:

... whether an action against the State of Tennessee ... based on a public nuisance theory and which asks for compensatory and exemplary damages against the State and for the abatement of the alleged public nuisances, is an exception to the bar of the State's sovereign immunity.

Plaintiffs do not deny the general rule of sovereign immunity but assert that this case comes within an exception to the rule.

Plaintiffs first cite West Park Shopping Center, Inc. v. Masheter, 6 Ohio St.2d 142, 35 Ohio Ops.2d 216, 216 N.E.2d 761 (1966). In that case, plaintiff sued to quiet title to a tract of land in which, it was alleged, the state claimed an interest. The property had been conveyed to the state for park purposes with a reverter clause in event of non user. On January 14, 1963, the retiring Director of Highways recorded an instrument of abandonment; and, on January 25, 1963, his successor recorded a rescission of the abandonment. The lower courts granted relief to the plaintiff, but the Supreme Court reversed and dismissed, stating:

... the lack of jurisdiction of the courts of the state of Ohio to quiet title against the state is clear. Nor does the fact that the Director of Highways is the nominal defendant give a court jurisdiction not present in cases where the suit against the sovereign is without its consent. Nor will construing the action to be one for the declaratory judgment correct the total defect. (216 N.E.2d at 763.)

There is not a syllable in the opinion of the Court to support the annotator's headnote # 3 which states:

3. Nuisance

Injunction will lie against sovereign for creating or maintaining a nuisance. (216 N.E.2d at 761.)

However, a footnote on page 763 refers to 81 C.J.S., States, § 216(c), p. 1320, Wayman v. Board of Education, 5 Ohio St.2d 248, 215 N.E.2d 394, and 52 A.L.R.2d 1134. These authorities will be discussed hereafter.

Plaintiffs next cite DeGarmo v. Alcoa, 332 F.2d 403 (6 Cir. 1964). This was a suit against a city for personal injuries from burning oil spilled from a "smudge pot" used as a warning flare on a drainage construction project. The appellate court affirmed judgment for the plaintiff and said:

... In Tennessee, when a municipal corporation is engaged in a proprietary function it can be liable in damages for the negligence of its employees; when it is acting in a governmental capacity, however, it is immune from liability for the negligence of its employees, but may be liable for acts which constitute a nuisance. (citing authorities). 332 F.2d at 404.

Plaintiffs next cite Buckeye Union Fire Insurance Company v. State, 383 Mich. 630, 178 N.W.2d 476, 477 (1970). In May, 1961, the state purchased a delapidated warehouse at tax sale. In April, 1963, while equity of redemption remained, the building burned and the fire destroyed other nearby buildings. Insurers sued the state under subrogation rights for loss of the nearby buildings. The lower courts denied recovery, but the Supreme Court reversed and said:

So far as the State itself is concerned, the doctrine of sovereign immunity as it presently exists in Michigan is a creature of the legislature. The doctrine had been modified by the legislature, abolished by the legislature, re-established by the legislature, and further modified by the legislature.

....

(8) There is no sovereign immunity applicable to a situation of nuisance as we have in this case. 178 N.W.2d at 482, 483.

Plaintiffs next cite Gerzeski v. State, 403 Mich. 149, 268 N.W.2d 525 (1978), wherein the Michigan Supreme Court affirmed a court of claims award for death by drowning when ice broke on a pond formed in a "borrow pit" created by the state. The three-judge opinion states:

To hold the government immune from the consequences of its intentional acts which create a nuisance would be, as posited in his dissent by the Court of Appeals Judge Thomas M. Burns, unconscionable.

....

(5) Accordingly, the bar of governmental immunity is inapplicable when a trier of fact determines as in this case, that the alleged nuisance was intentional, i. e., that the governmental agency intended to bring about the conditions which are in fact found to be a nuisance. (268 N.W.2d at 529, 530.)

The opinion cites no authority for the test just quoted.

Plaintiffs next cite Morash v. Commonwealth, 363 Mass. 612, 296 N.E.2d 461 (1973), wherein a property owner sued the state for pollution of the water supply of the property from seepage from salt stored on state property. The Trial Court dismissed, but the Supreme Court reversed and remanded for ascertainment of damages and said:

(1, 2) Since sovereign immunity is a judicially created common law concept, we reject the assumption of the Troy (Troy & G. R. Co. v. Com.) case, supra, 127 Mass. 43, and the Murdock Parlor (Murdock Parlor Grate Co. v. Commonwealth), case, supra, 152 Mass. 28 (24 N.E. 854), that the consent of the Commonwealth to suit may be derived only from the Legislature....

(3, 4) 2. We agree with the corporation's second argument that municipalities of Massachusetts are liable for private nuisances and there is no logical reason why the Commonwealth should not be similarly liable. Municipal liability for private nuisances arises from a court made exception to the rule of governmental immunity, ...

....

The doctrine of sovereign immunity upon which the Commonwealth relies was likewise court made.... 296 N.E.2d at 463.

In Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969), cited by plaintiffs, a patient sued a state hospital for negligence. The Trial Court dismissed. The Supreme Court reversed, held that the proprietary agencies of the state were not subject to sovereign immunity from tort liability, and said:

(3, 4) The governmental immunity doctrine has judicial origin in this state. Our constitution does not touch on the subject and the legislature adopted no general rules but rather left the matter to the courts for a determination of policy....

(5) After careful consideration a majority of the court is now of the opinion that it is appropriate for this court to abolish governmental immunity for negligence, when the state or its governmental agencies are engaged in proprietary activities, in the absence of the legislature's failure to adopt corrective measures. 457 P.2d at 27.

In Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219 (1970), cited by plaintiffs, there was a suit for personal injuries resulting from spreading loose gravel upon the road. The Kansas Supreme Court affirmed dismissal and said:

.. The legislature in clear and unambiguous language has declared the Kansas turnpike authority immune from liability or implied contract or for negligence or any other tort, which would include nuisance, except as provided by statute. The law as it now stands remains in harmony with our earlier turnpike cases, namely, that the authority is immune from tort liability except to the extent such immunity is waived by statute. (K.S.A. 68-2015.)

... We therefore decline to engraft solely for plaintiff's benefit the nuisance exception to the immunity previously accorded the Kansas turnpike authority under our law as it existed prior to Carroll. 472 P.2d at 222.

In Wayman v. Board of Education, 5 Ohio St. 248, 215 N.E.2d 394 (1966), cited in the footnote of West Park Shopping Center v. Masheter, supra, there was a suit to enjoin a nuisance consisting of a negligently and unskillfully created and maintained parking lot. The trial judge sustained...