Sherrod v. Dutton

• Court: Court of Appeals of Tennessee
• Writing for the Court: FRANKS
• Citation: 635 S.W.2d 117
• Parties: Jack E. SHERROD, et ux., Plaintiffs-Appellants, v. B. E. DUTTON, et ux., Defendants-Appellees. 635 S.W.2d 117
• Decision Date: 10 March 1982

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635 S.W.2d 117 Jack E. SHERROD, et ux., Plaintiffs-Appellants,
v.
B. E. DUTTON, et ux., Defendants-Appellees. 635 S.W.2d 117 Court of Appeals of Tennessee, Eastern Section. March 10, 1982.
Permission to Appeal Denied by Supreme Court June 21, 1982.

R. Franklin Norton and Lindsay Y. McDonough, McCampbell & Young, Knoxville, for plaintiffs-appellants.

Gerald Largen, Kingston, for defendants-appellees.

OPINION

FRANKS, Judge.

In this action to abate as a nuisance the operation of a go-cart racetrack by the defendant,

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the trial judge found no nuisance and dismissed the suit. Plaintiffs-homeowners have appealed.

Plaintiffs own a small farm improved by a dwellinghouse and barn in the Oral Community with frontage on U.S. Highway 70 near Kingston, Tennessee. Defendants own an adjoining tract of land where, in 1980, the defendant constructed a dirt racetrack for commercial operation, which is located approximately 150 yards from the plaintiffs' dwelling. An access road to the track from Highway 70 lies along the parties' property line and is unpaved. The access road at its junction with the highway is approximately 30 yards from plaintiffs' dwelling.

Prior to the development of the racetrack, within one mile radius of the plaintiffs' home, there were residences and small farms, two small country stores and a church. Plaintiffs testified the operation of the track on Friday nights until 10:30 or 11:00 p. m., and occasionally on Saturday nights, creates noise, dust, odors, light and traffic which prohibits normal conversation in social gatherings in their backyard and awakens their young son from sleep. They testified when the track is in operation they are forced to retreat into their home and close all doors and windows to escape the constant loud noise and to prevent red dust from entering their house. The defendants testified that the go-cart made only slightly more noise than a lawnmower and is powered with 3 to 5 h.p., unmuffled engines, the tract is watered prior to races and they control dust on the access road by the use of "burned" motor oil.

Numerous residents of the community testified; some stated the operation of the track substantially interfered with their normal use and enjoyment of their properties while others testified the operation of the track did not bother them.

Plaintiffs employed Dr. David Lipscomb, Director of the University of Tennessee Noise Research Department, to conduct tests on the noise emanating from the track during operation. Dr. Lipscomb was of the opinion, based on his tests, that the noise levels during the operation of the track would substantially interfere with sleep and conversing on plaintiffs' premises. He also testified plaintiffs' property received extraordinary noise interference from the track due to the terrain. He explained, due to the circular shape of the track, noise was amplified as noise would be through a loudspeaker, i.e., the noise was cast outward and upward. ¹ He opined that since the plaintiffs' property is situated on ground higher than the racetrack, the racetrack's noise is impacted on their property. He stated the type of noise involved gives added offense to the human sensibilities and characterized the sounds as unnatural, being inconsistently high and then low, quiet then noisy. This fact, he concluded, coupled with the noise being of high pitch, sensitive to the ear, gave the noise a quality more bothersome than would normally be expected from man-made sounds.

The chancellor, after hearing the testimony, stated in pertinent part:

Gentlemen, I think the testimony of these neighbors certainly is very significant, along with the testimony of Dr. Lipscomb, to try to weigh the community standards of what is acceptable noise, odor, and dust level. Certainly there is some noise, some dust, some irritants as the result of this particular use of this property. But, after listening to all the testimony in this case and trying to weigh whether or not the use of Mr. Dutton's property is an unreasonable use in relation to the community standards, I think that the go-cart track is not such a use as would constitute a legal nuisance.

I would probably agree with Mr. Baumgart (a witness) ... he said that this type activity in his opinion was a nuisance. If I probably lived in Mr. Sherrod's house I would think it was a nuisance. But of course, that use of the

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language is entirely different from the legal conclusion of what a nuisance is. ... I don't think that this use has risen to the standards required in order to restrict Mr. Dutton from the free use of his property. (Emphasis supplied.)

Apparently, the chancellor evaluated the evidence as to whether the racetrack constituted a public nuisance or a nuisance per se, but pretermitted the issue of whether the operation of the track constituted a nuisance in fact. The chancellor's community standards approach deviates from the proper inquiry developed in prior Tennessee cases for determining whether a nuisance in fact exists. By over-emphasizing this factor the chancellor did not address the ultimate issue as to whether the racetrack unreasonably interferes with the plaintiffs' use of their property, a factual issue. The impact on the surrounding community is only one factor to be considered in making this determination. The factors ² to be considered are set forth in Caldwell v. Knox Concrete Products, 54 Tenn.App. 393, 391 S.W.2d 5 (1964):

A nuisance has been defined as anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable. Adams v. Hamilton Carhartt Overall Co., 293 Ky. 443, 169 S.W. (2d) 294. In City of Nashville v. Nevin, 12 Tenn.App. 336, it was said that a nuisance extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property. See also Williams v. Cross, 16 Tenn.App. 454, 459, 65 S.W.(2d) 198.

What is a reasonable use of one's property and whether a particular use is an unreasonable invasion of another's use and enjoyment of his property cannot be determined by exact rules, but must necessarily depend upon the circumstances of each case, such as locality and the character of the surroundings, the nature, utility and social value of the use, the extent...