             IN THE COURT OF APPEALS OF TENNESSEE
                                                  FILED
                        AT KNOXVILLE
                                                                     July 14, 1999

                                                                   Cecil Crowson, Jr.
                                                                   Appellate C ourt
                                                                       Clerk




STELLA WOODY,                          )     GREENE CIRCUIT
                                       )
      Plaintiff/Appellee               )     NO. 03A01-9811-CV-00390
                                       )
v.                                     )      HON. KINDALL T. LAWSON
                                       )      JUDGE
ROY ALLEN JOHNSON and                  )
GREENEVILLE OIL &                      )
PETROLEUM COMPANY, INC.,               )
                                       )      REVERSED and
      Defendants/Appellants            )      DISMISSED



Richard M. Currie, Jr., Kingsport, for Appellants.
Charles R. Terry, Morristown; W. Lewis Jenkins, Jr., Dyersburg; and Douglas
T. Jenkins, Rogersville, for Appellee.


                                   OPINION

                                    The Case

      This is an action for damages for the alleged erection and maintenance of a

private temporary nuisance affecting the plaintiff’s property. The jury returned a

verdict for the plaintiff for damages for the years 1995 - 1996 in the amount of

$50,000.00. The motion of the defendant for judgment NOV or for a new trial was

overruled. This appeal resulted.

      The issues are: (1) Whether there was material evidence to support the

finding that the defendants-appellants created and maintained a nuisance; (2)

whether there was material evidence to justify an award of damages; (3) whether

expert testimony was properly admitted with respect to the costs of constructing

an alternate entrance to the plaintiff’s property; and (4) whether expert testimony

was properly admitted with respect to projects unrelated to the case at Bar. Our
resolution of the first issue is dispositive of this appeal and we pretermit a

consideration of the remaining issues.

      Since this is a jury case, the verdict must be upheld if material evidence can

be identified in the record, T. R. C. P. 13(d); Pullen v. Textron, 845 S.W.2d 777

(Tenn. App. 1992).

                                  The Pleadings

      The complaint alleges that the plaintiff owns a parcel of land near the

intersection of U.S. Highway 11-E and Interstate 81, adjoining a parcel owned by

the defendant Johnson, which was carved out of the plaintiff’s property and leased

to the defendant, Greeneville Oil Company, Inc., which, on August 9, 1995,

obtained a highway entrance permit from the Tennessee DOT allowing the

construction of an entrance from U.S. Highway 11-E. It is alleged that this

entrance blocks the plaintiff’s entrance onto her property from U.S. Highway 11-E,

with resulting damages. By amended complaint, the plaintiff demanded that the

alleged nuisance created by the construction of the entrance by the defendants

should be abated.

      The defendants denied that they created a nuisance by the erection of a

lawfully permitted entrance into their property.

      The case was submitted to the jury on the sole issue of whether the

defendants created and maintained a nuisance for which damages, if any proved,

were sought. The demand for the abatement of the nuisance was apparently

abandoned.

                      The Evidence Respecting a Nuisance

      Considered in the best possible light to the plaintiff, and disregarding all

contrary evidence, the evidence revealed that the plaintiff owns a 20-plus acre tract



                                         2
of land in Greene County at the intersection of Interstate 81 and U.S. 11-E. The

Interstate is immediately west of the property; U.S. 11-E is a divided, four-laned,

limited-access highway bounding the property on the south.

      Idell Road, extending north and south, intersects, but does not cross, U.S.

11-E directly across from the plaintiff’s property. There is a cut in the median of

U.S. 11-E adjacent to the southwest corner of her property, which is unimproved.

      In 1986, the plaintiff and her husband sold a 1.34 acre tract in the southwest

corner of their property to Gene and Lois Smith. By this deed they created two (2)

small triangular reciprocal easements in recognition of access from U.S. 11-E, one

of which was for the benefit of the remaining land of the plaintiff. It was located

in the southeast corner of the 1.34 acres sold to Smith. A similar easement on the

plaintiff’s property for the benefit of Smith was created. The two sides of the

triangle formed a near-right angle and measured 30 feet from the southeast corner

of the 1.34 acre tract northwardly along the boundary between the respective

properties, and measured from the common corner of these properties 30 feet

westwardly along the southern boundary of the 1.34 acre tract, which is also the

northern margin of the right of way of U.S. 11-E.

      These easements were described as allowing for ingress and egress to each

party across the respective corners of the other’s property.

      Smith constructed a gas station and restaurant on the 1.34 acre tract, and

applied to the DOT for a permit to construct a driveway to his property. In the

drawing presented with his application, the property line between his tract and the

property of the plaintiff was represented to be about 25 feet east of its actual




                                         3
location.1 Smith operated the gas station until 1988 when he sold it to Myers and

Kilday. The 1.34 acre tract was acquired by the defendant Johnson in 1994.

       The plaintiff is an elderly lady who lives in Anderson County and was

essentially not involved in the management of her property. She relied upon

George Carpenter,2 a nephew and Greene County resident, who acted as her agent

in all matters pertaining to the property. It was the sale of the 1.34 acre tract that

generated the difficulties encountered by the plaintiff with respect to her remaining

property.

       An entrance at the median cut must be in line with the cut according to the

Rules & Regulations of DOT. Vehicles exiting the property must be able to cross

the westbound lanes and turn left (east) into the eastbound lanes, and any entrance

must be located at least 12.5 feet from the adjoining property line. If this

requirement is not satisfied, the entrance would not line up properly with the

median cut, which the DOT cannot extend eastwardly for two reasons: first, cuts

longer than 80 feet will not be permitted, and secondly, the elevations of the east

and westbound lanes of U.S. 11-E are not the same at the cut. The triangular

easements heretofore discussed, agreed upon by the plaintiff and her husband, and

by Smith, with input by Carpenter, proved to be inadequate for access by large

vehicles.     For several years, Carpenter, on behalf of the plaintiff, tried

unsuccessfully to obtain DOT approval of a commercial entrance at the Idell Road

median cut for the plaintiff’s property. The record reveals that he was repeatedly

advised that the approval of the adjoining landowner would be necessary.



       1
        Had DOT been aware of the error, that is, had the true location been shown, the
consent of the plaintiff would have been required.
       2
        The record indicates that Carpenter was entirely versant about the history of this
matter. He did not testify. When queried about his failure to testify, counsel replied
somewhat cryptically and the matter was not pursued.

                                               4
      The record contains a rather astonishing amount of evidence reflecting the

efforts of the parties to adjust this matter. Over a period of about five years,

beginning in 1989, Carpenter, on behalf of the plaintiff, held discussions with

Johnson about constructing an access road from U.S. 11-E across the plaintiff’s

and defendant’s properties. Carpenter also attempted to persuade the DOT to

approve an entrance to the plaintiff’s property. The plaintiff testified that her

nephew made numerous trips to Nashville to contact the DOT about the problem.

Because a portion of the 1.34 acre tract would be utilized for the access road, the

defendant urged the plaintiff’s agent to trade a measure of her land lying to the

rear, north, of the 1.34 tract, in exchange. This urging was unavailing.

      After the defendant acquired the 1.34 acre tract, he employed an engineering

firm, Vaughn & Melton, to assist in its development. An architect, John Fisher,

was also employed. There was a drainage easement on the westerly two-thirds of

the property which had been created by DOT when Interstate 81 was constructed.

This easement hampered development. Melton and Vaughn in time developed a

plan for a driveway from U.S. 11-E into the property that was acceptable to the

Tennessee DOT, the design of which took into account the plaintiff’s property,

because of the DOT requirement that a driveway must be at least 12.5 feet from the

adjoining (plaintiff’s) property line, unless approval is obtained from the adjoining

owner, and because the right of the plaintiff to use the easement created in her deed

to Smith had to be respected.

      The driveway is located 12.5 feet from the plaintiff’s property line, but in

order to preserve access to the easement, the curbing along the driveway was

lowered to grade level, thus allowing vehicles unhampered access to the plaintiff’s

property.



                                         5
      But the curb delineating the entrance extends into the DOT right of way

fronting the southwest corner of the plaintiff’s property. It was constructed

according to DOT requirements, and prevents a vehicle from crossing the right of

way directly onto the plaintiff’s property. But it is not disputed that the curb would

not prevent the plaintiff from obtaining a driveway permit if she could otherwise

meet the requirements of the DOT for a commercial entrance at that location.3

      The plaintiff’s property fronts on U.S. 11-E for several hundred feet. She

has ready access to the westbound lanes of this highway. To have access to the

eastbound lanes would require an entrance road encroaching upon the defendant’s

property and thus requiring their consent as well as the approval of DOT.

                                            Analysis

      The appellant strenuously argues that the evidence did not establish the

creation or maintenance of a nuisance. We agree. The pattern instruction mirrored

Tennessee law that a nuisance is an unreasonable or unlawful use of property that

results in material or substantial annoyance, discomfort, harm or injury to the

plaintiff, or to her free use, possession or occupation of her property. As held by

the Supreme Court in Fulenwider v. Firefighters Ass’n. Local 1784, 649 S.W.2d

268 (Tenn. 1982):

      “We recognize that the term ‘nuisance’ is a flexible one which has
      been applied to many different factual situations and in many
      different contexts. It usually refers, however, to the creation of some
      condition, such as noise, open burning, or other offensive and
      unreasonably dangerous conditions . . . .”

      We are of the opinion that the term “nuisance” is not so flexible as to include

the factual scenario presented in this case. The defendants merely constructed an

entrance into and upon their property. They did not trespass or encroach upon the



      3
          The offending curb is on the right of way of U.S. 11-E.

                                                6
plaintiff’s property. No legal right of the plaintiff was violated. The curbing

complained of was mandated and approved by the Tennessee DOT; the plaintiff’s

right to access her property through the easement on the defendant’s property was

undisturbed. The defendants made no unlawful use of their property.

      We hold that as a matter of law the undisputed evidence does not prove the

existence of a private nuisance. We agree with the appellant that considered in the

best possible light to the plaintiff the evidence merely established that the

defendants and their predecessors in title, for nearly a decade, declined to give the

requisite permission to the plaintiff for the construction of an entrance which

would have encroached upon their property. Resolution by mediation failed,

equity was apparently not resorted to, and this action alleging a common-law

temporary nuisance was filed, which, if sustainable, can be repeatedly filed until

the defendant capitulates and surrenders his rights and his property to the plaintiff

whose initial conveyance of the 1.34 acres is at the heart of the problem. The

actions of the defendants cannot logically be described as the unreasonable,

unwarrantable, or unlawful use of their property, nor as the result of improper,

indecent, or unlawful personal conduct, nor as anything that endangered the

plaintiff’s life or health, or offended her senses, or violated the laws of decency,

to utilize the historical and empirical elements of a nuisance. Sherrod v. Dutton,

635 S.W.2d 117 (Tenn. App. 1982); Caldwell v. Knox Concrete Products, 391

S.W.2d 5 (1964); and the host of cases therein cited.

      The judgment is reversed. The motion of the defendants-appellants for a

directed verdict is granted, and the suit of the plaintiff is dismissed. Costs are

assessed to the appellee. The case is remanded for all appropriate purposes.




                                         7
                                  _______________________________
                                  William H. Inman, Senior Judge

CONCUR:



______________________________
Houston M. Goddard, Presiding Judge




_______________________________
Herschel P. Franks, Judge




                                      8
