state-of-tennessee-on-relation-of-ervin-smith-and-ervin-smith-individually ( 1998 )

STATE OF TENNESSEE ON )
RELATION OF ERVIN SMITH, and
ERVIN SMITH, individually,
)
)
)
Smith Chancery
No. 5668 FILED
Plaintiffs/Appellees, )
July 1, 1998
)
VS. )
) Cecil W. Crowson
L. B. FRANKLIN and ALEX ) Appeal No. Appellate Court Clerk
RICHMOND, CITY OF CARTHAGE, ) 01A01-9710-CH-00546
TENNESSEE, a municipal corporation, )
MAYOR DAVID BOWMAN, )
)
Defendants/Appellants. )
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
APPEAL FROM THE CHANCERY COURT OF SMITH COUNTY
AT CARTHAGE, TENNESSEE
HONORABLE C. K. SMITH, CHANCELLOR
Stephen L. Edwards, #3489
The Pilcher Bldg., Suite 100
144 Second Avenue, North
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFFS/APPELLEES
Jack W. Robinson, Jr., #11656 Jacky O. Beller, #3157
230 4th Avenue No., 3rd Floor 212 Main Street
P.O. Box 198888 P.O. Box 332
Nashville, Tennessee 37219-8888 Carthage, Tennessee 37030
Derrick C. Smith, #13961
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
ATTORNEYS FOR DEFENDANTS/APPELLANTS
AFFIRMED IN PART,
REVERSED IN PART,
REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
WILLIAM B. CAIN, JUDGE
CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
STATE OF TENNESSEE ON )
RELATION OF ERVIN SMITH, and ) Smith Chancery
ERVIN SMITH, individually, ) No. 5668
)
Plaintiffs/Appellees, )
)
VS. )
)
L. B. FRANKLIN and ALEX ) Appeal No.
RICHMOND, CITY OF CARTHAGE, ) 01A01-9710-CH-00546
TENNESSEE, a municipal corporation, )
MAYOR DAVID BOWMAN, )
)
Defendants/Appellants. )
OPINION
The plaintiff, Ervin Smith, has appealed from the judgment of the Trial Court as to his
rights in regard to an alleged public right-of-way on property adjoining plaintiff’s land.
The original complaint was filed July 26, 1994. The amended complaint alleges the
following pertinent facts:
Plaintiff owns property at 1120 North Main Street, Carthage, Tennessee. Adjoining the
east (rear) boundary of said property there has been an alley, lane or right-of-way known as
Franklin Lane or Negro Cemetery Lane, extending south to Smotherman Street. Defendants,
Franklin and Richmond are the owners of land east of said lane. In the development of said land
defendants have obstructed said lane with debris, have elevated the level of their land and have
violated the City Zoning and Building Codes by construction on their property across the subject
alley, lane or right-of-way.
The complaint prays for an injunction against obstructing the lane or alley, for a
declaration that it is a public street or that plaintiff has an easement thereon, that the city be
required to enforce its zoning regulations, and for damages and fees.
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The answer of the City of Carthage and its mayor denies that Franklin Lane is a city street
or that plaintiff is entitled to any relief from them.
The answer of Franklin and Richmond asserts that they are the owners of the disputed
property and that they have not unlawfully used it. Said defendants pled the statutes of
limitations, T.C.A. §§ 28-2-103, 105, 109, and 110, and denied that said defendants have
attempted to make Franklin Lane a city street.
All defendants moved for summary judgment.
On October 16, 1996, the Trial Judge entered judgment providing:
It is therefore ORDERED that the City’s and Mayor’s
motion for summary judgment on the ground Plaintiff’s claim
for a writ of mandamus is premature is hereby denied.
It is further ORDERED that Plaintiff’s claims
concerning zoning and the use of Alex Richmond’s and L. B.
Franklin’s property for miniwarehouse or ministorage
purposes is hereby voluntarily dismissed with prejudice as to
all Defendants.
It is further ORDERED that the Plaintiff’s claims
against the City of Carthage, Tennessee and Mayor David
Bowman for damages, punitive damages, and attorneys’ fees
shall not be considered by this Court and are hereby
transferred to Circuit Court.
It is further ORDERED that the Motion for Partial
Summary Judgment of Defendants Richmond and Franklin is
granted as to the issues of easement by prescription and
easement by necessity, and Plaintiff shall have no easement
by prescription or easement by necessity.
On November 26, 1996, counsel for plaintiff moved to amend the judgment to allow
$34,207.00 litigation expenses.
On December 21, the Trial Judge entered an order providing:
It is hereby ORDERED, ADJUDGED AND
DECREED that the public right-of-way heretofore known as
Franklin Circle or Franklin Lane is a 50-foot right-of-way
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from Smotherman Drive running northward along the easterly
boundary line of the properties owned by David Lollar, Dr.
David McDonald, Jerry Shores and plaintiff Ervin Smith, and
continuing northwardly to, but excluding, the property taken
by the State of Tennessee for the by-pass;
It is further ORDERED, ADJUDGED AND
DECREED that a Writ of Mandamus shall issue to the
defendant City of Carthage, Tennessee, and its mayor,
defendant Mayor David Bowman, requiring said defendants
to cure the blockage of the public right-of-way heretofore
known as Franklin Circle or Franklin Lane by requiring
defendants L. B. Franklin and Alex Richmond to unblock and
open said right-of-way;
It is further ORDERED, ADJUDGED AND
DECREED that defendants L. B. Franklin and Alex
Richmond shall prevent the drainage from the fill area from
going onto plaintiff’s property and to cover the area in some
manner, by grass or otherwise, to make it not look so
unsightly;
It is further ORDERED, ADJUDGED AND
DECREED that plaintiff have a recover from defendants L. B.
Franklin and Alex Richmond the sum of ONE THOUSAND
TWO HUNDRED SEVENTY-NINE AND 01/100
DOLLARS ($1,279.01), for which execution shall issue, if
necessary.
It is further ORDERED, ADJUDGED AND
DECREED that plaintiff have and recover from defendants L.
B. Franklin and Alex Richmond the sum of FIVE
HUNDRED DOLLARS ($500.00), but which shall be abated
in full and stayed in the event said defendants either clean the
mud off the concrete floor of plaintiff’s basement or cause the
mud to be cleaned. In the event defendants shall fail to do so,
execution shall issue upon motion of plaintiff, if necessary.
It is further ORDERED, ADJUDGED AND
DECREED that plaintiff shall recover no punitive damages
from defendants L. B. Franklin, Alex Richmond, City of
Carthage, Tennessee, and Mayor David Bowman.
It is further ORDERED, ADJUDGED AND
DECREED that the costs of this cause are taxed one-half to
the defendant City of Carthage, Tennessee, and one-half to
defendants L. B. Franklin and Alex Richmond, for which
execution shall issue, if necessary.
On April 29, 1996, the Trial Court awarded plaintiff judgment against the City of
Carthage for $44,268.84 legal expenses.
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The City filed notices of appeal from the judgment entered on April 29, 1997.
The City presents the following issues for review:
I. Was mandamus the proper procedure for determining
whether Franklin Circle had become a public right-of-way?
II. Was it proper to award attorneys’ fees to the
prevailing party in a mandamus action?
III. Was the amount of attorneys’ fees awarded contrary
to the evidence submitted in support of the award and the trial
court’s parameters for the fees it would allow?
IV. Was it improper for the trial Court to deny the city’s
request for discovery regarding claimed attorneys’ fees and a
hearing regarding same?
Franklin and Richmond present the following issues:
A. Whether the driveway in question is a public right-of-
way.
B. Whether the Chancellor erred in finding that the right-
of-way is 50 feet wide.
C. Whether the Plaintiff’s claims for equitable relief (for
himself and others) are barred because of laches.
D. Whether the Plaintiff’s claims relating to the driveway
and the land in question are barred by applicable statutes of
limitations.
E. Whether Mr. Franklin and Mr. Richmond are
responsible for the water and mud damage to the plaintiff’s
property in May, 1995.
Plaintiff presents the issues in the following form:
I. Whether a writ of mandamus was the proper
procedure for opening a blocked public right-of-way where
the opponents denied it was a public right-of-way.
II. Whether in an action for writ of mandamus it is lawful
to award reasonable attorney’s fees to the prevailing private
citizen against the defaulting government.
III. Whether the award of attorneys’ fees in successful
writ of mandamus action was reasonable and upon the proper
procedure.
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IV. Whether the claimed roadway in question was indeed
a public right-of-way by virtue of implied dedication.
V. Whether the Chancellor erred in finding that the right-
of-way was 50 feet wide.
VI. Whether the plaintiffs’ claims for equitable relief are
barred by the doctrine of laches.
VII. Whether the plaintiffs’ claims for equitable relief are
barred by applicable statute of limitations.
VIII. Whether the actions of abutting landowners,
Franklin/Richmond, caused the water damages to the
plaintiff’s real property in May, 1995.
Plaintiff’s brief does not discuss the differences between a public road which the public
authority has accepted and obligated itself to maintain, a public easement or right-of-way which
the general public has the right to use, and a private easement which belongs to a private person
or is appurtenant to a particular tract of land.
Plaintiff insists that the lane in question became a public road by acquiscence of certain
municipal officials, by their oral statements or acts of maintenance. There is no evidence that
such acquiescence or action was committed by an official or body having authority to obligate
the city to accept and maintain the subject way as an official city street. There is no evidence that
the municipal legislative body or any other city official with authority to do so has so acted in
respect to the subject lane.
A dedication is not a completed transfer of right or title. It is merely an offer which is
inaffective and cancellable until accepted by the agency having the power to do so.
Since there is no evidence of authoritative acceptance, the City of Carthage has no duties
or liabilities in regard to the subject lane.
All parts of the judgment of the Trial Court which impose responsibility or liability on
the city are reversed.
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Plaintiff next insists that the subject lane was a “public way,” that is, an easement
acquired by public use. There is no evidence that the subject lane has been used continuously
by the public for the time necessary to create an easement by prescription. It is uncontradicted
that the lane was completely blocked by heavy and dense vegetation until cleared by the
defendants, Franklin and Richmond. Moreover, it is uncontroverted that former users of the lane
now use an entirely different route. All parts of the judgment of the Trial Court which declare
a public or private easement of the location and size urged by plaintiff are reversed.
The only other easement claimed by plaintiff is a drainage easement.
The occupant of a town lot or other lands, if injured in his possession by the obstruction
of his natural drainage of surface water over the lower adjacent land, may recover damages for
the injury done. Carlin v. Aurin, 103 Tenn. 555, 55 S.W. 940, 48 LRA 862, 76 Am. St. Rep. 699
(1899), Talley v. Baker, 3 Tenn. App. 321 (1926).
A wrongful interference with the natural flow of surface water from property on a higher
elevation to and across lower adjacent property constitutes an actionable nuisance. Zollinger v.
Carter, Tenn. App. 1992, 837 S.W.2d 613. Kind v. Johnson City, 63 Tenn. App. 666, 478
S.W.2d 63 (1970).
It is undisputed that the surface water on the land of plaintiff naturally flowed to and
across the subject lane to and across the land of Franklin and Richmond until about mother’s day,
1994, when Franklin and Richmond obstructed the subject lane with debris and raised the level
of their land by filling, and that prior to the obstruction of the lane by debris and the raising of
the level of the land of Franklin and Richmond by filling, plaintiff was never troubled by
excessive surface water; but that, upon said obstruction and filling, his land and basement were
flooded with surface water.
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It is true that the construction of the “by pass” by the public authority produced a larger
volume and concentration of surface water flow, but there is no evidence to show that this
additional flow of water would have reached the plaintiff’s premises if the lane has not been
obstructed or the land of Franklin and Richmond had not been raised by filling. Plaintiff’s suit,
filed in July, 1994, was clearly within the statute of limitations.
The Trial Judge found that plaintiff suffered $500 damages by flooding and mud in his
basement caused by the wrongful acts of the defendants, Franklin and Richmond, and rendered
judgment against them therefor. The evidence does not preponderate against this part of the
judgment which is affirmed. TRAP Rule 13(d). In event of future flooding, plaintiff retains the
right to sue for recurrent damage. Smith v. City of Covington, Tenn. App. 1985, 734 S.W.2d 327.
There is no evidence to support the remainder of the judgment which is reversed and
vacated. Costs of this appeal and of the Trial Court are taxed against the appellees, Franklin and
Richmond.
The cause is remanded to the Trial Court for entry and enforcement of judgment in
conformity with this opinion.
AFFIRMED IN PART,
REVERSED IN PART,
REMANDED.
_________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________
WILLIAM B. CAIN, JUDGE
CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
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