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.




                                               -2-
        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

                                               -3-
              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.




                                              -4-
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.




                                     -5-
                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.

                                                   -6-
       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.




                                                -7-
       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




                                                -8-
