Sherrod v. Dutton

• Decision Date: 10 March 1982
• 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
• Court: Tennessee Court of Appeals

Page 117

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 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 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 and nature of the harm involved, the nature, utility and social value of the use or enjoyment invaded, and the like. See Clinic & Hospital v. McConnell, 241 Mo.App. 223, 236 S.W. (2d) 384, 23 A.L.R.(2d) 1278; Restatement, Torts, Secs. 822, 831, pp. 214, 265. 54 Tenn.App., at 402, 391 S.W.2d 5.

Caldwell expresses that a lawful and useful business will not be interfered with on account of trifling or imaginary annoyances but makes clear that anyone, without regard to his station, may not be driven from his home or compelled to live in positive discomfort although caused by a lawful and useful business carried on in his vicinity. 54 Tenn.App. at 403, 391 S.W.2d 5. Accord: Signal Mountain Portland Cement Company v. Brown, 141 F.2d 471 (6th Cir. 1944); Bank & Trust Co. v. Hotel Co., 124 Tenn. 649, 139 S.W. 715 (1911); Terminal Co. v. Lellyett, 114 Tenn. 368, 85 S.W. 881 (1904); Swain v. Tennessee Copper Co., 111 Tenn. 430, 78 S.W. 93 (1903); Terminal Co. v. Jacobs, 109 Tenn. 727, 72 S.W. 954 (1902); Ducktown Sulphur, Copper & Iron Co., Ltd. v. Barnes, 60 S.W. 593 (Tenn.1900); Wilson v. Farmers Chemical Assn., 60 Tenn.App. 102, 444 S.W.2d 185 (1969); Hagaman v. Slaughter, 49 Tenn.App. 338, 354 S.W.2d 818 (1961); Crabtree v. City Auto Salvage Co., 47 Tenn.App. 616, 340 S.W.2d 940 (1960); City of Murfreesboro v. Haynes, 18 Tenn.App. 653, 82 S.W.2d 236 (1935).

The evidence establishes the plaintiffs' experience discomforts each time the track is in operation; there is no direct evidence refuting the testimony of plaintiffs and their witnesses that noise and dust from the racetrack and access road physically invade their premises and cause positive discomforts. Dr. Lipscomb's tests established the noise level outside plaintiffs' dwelling ranged from 48 decibels to 85 decibels and inside the readings ranged from 36 decibels to 65 decibels; the lower decibel readings were higher pitched noises, which still cause discomfort to the normal ear. At all levels the readings were above the levels for sleeping (indoor readings) and conversing (outdoor readings). The evidence supports Dr. Lipscomb's conclusions that the racetrack interferes with the plaintiffs' ability to sleep and converse. ³

Go-cart racing is a use of property unique to the locality in question and intrusive as to the plaintiffs' property. Its operation's impact is accented since, during the evening hours, the primary noises in the community created by farm animals, farming machinery and traffic on Highway 70 diminish; however, the racetrack as a recreational facility serves a useful societal function ⁴, but the facility substantially interferes with plaintiffs' quiet enjoyment of their home and the law protects the rights of homeowners from unreasonable disturbances. Comment f. to § 828 of Restatement (Second) of Torts notes the deference accorded the traditional use of property for residential purposes. ⁵ This stance is expressed in Caldwell and other Tennessee cases. See e.g., Pate v. City of Martin, 614 S.W.2d 46 (Tenn.1981); Wright et al. v. State, 130 Tenn. 279, 170 S.W. 57 (1914); Weakley v. Page, 102 Tenn. 178, 53 S.W. 551 (1899); Hendrix v. City of Maryville, 58 Tenn.App. 457, 431 S.W.2d 292 (1968); Wilson v. Farmers Chemical Assn., supra; City of Columbia v. Lentz, 39 Tenn.App. 350, 282 S.W.2d 787 (1955); City of Murfreesboro, supra.

The evidence establishes two inconsistent yet legitimate land uses and the protection of one necessarily results in an infringement on the other. ⁶ Although business enterprises are not allowed to enter a community and unreasonably interfere with the...