Wilson v. Farmers Chemical Ass'n

• Citation: 444 S.W.2d 185,60 Tenn.App. 102
• Parties: Thomas F. WILSON et ux. v. FARMERS CHEMICAL ASSOCIATION, Inc.
• Decision Date: 20 February 1969
• Court: Court of Appeals of Tennessee

Page 185

444 S.W.2d 185

60 Tenn.App. 102

Thomas F. WILSON et ux. v. FARMERS CHEMICAL ASSOCIATION, Inc.

Court of Appeals of Tennessee, Eastern Section.

Feb. 20, 1969 Certiorari Denied by Supreme Court Aug. 4, 1969.

Witt, Gaither, Abernathy & Wilson, James J. Griffiss, Chattanooga, for Thomas F. Wilson and wife.

MacFarland & Reed, Lebanon, and Chambliss, Hodge, Bahner & Crawford, Chattanooga, for Farmers Chemical Ass'n, Inc.

OPINION

McAMIS, Presiding Judge.

Thomas F. Wilson and wife as the owners of a partially developed residential sub-division filed the bill in this case against Farmers Chemical Association, Inc., a manufacturer of fertilizers and the ingredients of TNT, to recover damages and to enjoin an alleged temporary nuisance which complainants charge was caused by the pollution of the atmosphere and the waters of Waconda Bay, an arm of Chicamauga Lake in Hamilton County.

On an answer denying the material allegations of the bill and voluminous proof in the form of depositions the Chancellor found that defendant was in fact maintaining a temporary nuisance when the bill was filed November 16, 1965, but that due to improvements in its manufacturing processes defendant's activities no longer amounted to a nuisance.

The Chancellor found, however, that before these improvements were made complainants had suffered the following damages $36,436.00 representing diminution in the sale price of lots already sold and $15,000.00 damages as riparian owners, resulting from siltation of the Bay which complainants, under their contract with Tennessee Valley Authority, are required to dredge and remove.

Complainants contend that for this latter item the Chancellor should have allowed $28,000.00 and erred in refusing to allow recovery of $25,447.63 as interest on borrowed funds which complainants were unable to repay because of their inability to market lots due to defendant's activities.

Both parties have appealed and assigned errors challenging the Chancellor's holding adverse to their respective contentions. We consider first the assignments of the defendant Farmers Chemical Association, Inc.

The first assignment that the Chancellor erred in finding defendant had maintained a temporary nuisance in the pollution of the atmosphere and the waters of Waconda Bay is overruled. The evidence does not preponderate against the Chancellor's findings on this issue. These findings are set forth in the Chancellor's opinion, from which we quote:

'The Court finds that the defendant corporation has maintained and continues to maintain a nuisance in its manufacturing operations which has caused substantial injury to the complainants. The defendant has polluted the air over the complainants' property since the defendant began operating and this pollution has continued to the time of trial. The pollution consists of soot or 'particulates', ammonia, oxides and other compounds of nitrogen and other chemicals. These pollutants have seriously impaired the usable value of complainants' property. Likewise, the defendant has polluted and continues to pollute the waters of Wyconda Bay by discharging through a drainage ditch running from its plant to the Bay huge quantities of water which contain ammonia, oxides of nitrogen and other poisonous chemicals which have caused numerous kills of thousands of fish, the decaying of which has fouled the air over complainants' property and fouled the waters of the Bay, thereby rendering it unfit for normal boating and swimming purposes. This pollution of the waters of the Bay has likewise caused substantial injury to the usable value of complainants' property.'

The record shows complainants' property adjoins Waconda Bay and that it has been partially developed by the construction of streets and necessary facilities for a high class subdivision, entailing an expenditure, including the cost of the land, of more than $500,000.00. There can be little doubt that, due to defendant's activities, complainants have been seriously handicapped in selling lots and as a result of these difficulties and the reluctance of buyers to purchase and develop lots complainants have deferred improving a considerable portion of their lands.

The Chancellor found that, due to defendant's activities, on the lots actually sold complainants were compelled to reduce the price by 22.4% And, as a result, sustained a loss of $36,436.00. We concur in that finding. It is thus apparent complainants have been denied the beneficial use of their property, a commonly accepted ingredient of the term 'nuisance'.

'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. 366, 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, Inc. 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.' Caldwell v. Knox Concrete Products, 54 Tenn.App. 393, 391 S.W.2d 5.

In that case incessant and disturbing noises were found to constitute a nuisance. In Hendrix v. City of Maryville, Tenn.App., 431 S.W.2d 292 a city dump offensive to sight and smell was held to constitute a nuisance and, similarly, in Hagaman v. Slaughter, 49 Tenn.App. 338, 354 S.W.2d 818, a junk yard where rats and mosquitos were allowed to converge and breed, found to be a health hazard, was held to be a nuisance. So here, the offensive odor and sight of decaying fish and the pollution of the atmosphere with dirty and odorous fallout, resulting in heavy damage to property, cannot with reason be said to be less than a nuisance.

Defendant cannot escape the charge that, as to the dead fish, there was no nuisance because the escape of the lethal chemicals into the waters of the Bay was not continuous but happened only occasionally when due to accident chemicals escaped into the drainage ditch leading to the Bay. The proof shows that as many as seven or eight fish kills occurred over a period of about three years. Regardless of the cause of these 'accidents' we cannot say the Chancellor erred in his finding that defendant failed to so control its operations as to avoid serious discomfort and damage to its neighbors and that, therefore, its use of its property was not reasonable or proper.

The element of motive or intent does not enter into the question of the existence of a nuisance. State v. James, 177 Tenn. 21, 145 S.W.2d 783. It is the use of property by the accused and whether reasonable or unreasonable and the effect of such use upon the health, safety and comfort of affected persons and damage to property rights which must be given predominant consideration.

'Every man or corporation must so use their own property as not to injure others.' City of Nashville v. Nevin, 12 Tenn.App. 336. And see 39 Am.Jur. 296, Nuisances, Section 16.

Defendant next assigns as error the overruling of its objection to the testimony of G. M. Baker, a real estate appraiser.

The witness filed as an Exhibit to his testimony an estimate of the depreciation of complainants' property from January 1, 1963, about the time defendant began operations, and November 16, 1965, the date the bill was filed and concluded the property had depreciated in value as the result of contamination of the water and atmosphere and related adverse effects to the extent of $75,000.00. It appears this estimate was predicated on sales of similar property in the area during this period of time and the fact the witness was not living in the Chattanooga area during that time and was, therefore, not personally acquainted with real estate values during these years goes to the weight rather than the competency of this testimony.

Defendant's Fourth...