                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                           Submitted on Briefs February 16, 2001

                   DEBRA CISSOM, ET AL. v. AL MILLER, ET AL.

                     Appeal from the Chancery Court for Bradley County
                         No. 93-335    Jerri S. Bryant, Chancellor

                                      FILED APRIL 30, 2001

                                  No. E1999-02767-COA-R3-CV


The Plaintiffs sue the Defendants, alleging a nuisance created by chicken houses owned and operated
by them in close proximity of the Defendants’ property. The Trial Court found a temporary nuisance
was created and that, although T.C.A. 44-18-102 was a complete bar to any claims the Plaintiffs
might have insofar as three older chicken houses were concerned, is not a bar to their claim as to five
new chicken houses. We affirm.

     Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
                                   Cause Remanded

HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.,
and D. MICHAEL SWINEY , JJ., joined.

Denny E. Mobbs, Cleveland, Tennessee, for the Appellants, Al Miller, Virginia Miller and Alfred
M. Miller, Jr.

Jes Beard, Chattanooga, Tennessee, for the Appellees, Debra Cissom and John Robert Cissom, Jr.



                                             OPINION

        In this suit, Debra Cissom and her husband, John Robert Cissom, Jr., sue Al Miller and his
wife, Virginia Miller, and Alfred M. Miller, Jr., seeking to enjoin and abate a nuisance and to recover
damages suffered by them as a result thereof. According to the complaint the nuisance was as a
result of five large chicken houses operated by the Defendants, which emitted “foul, unhealthy and
offensive odors,” caused a visible cloud of contaminated gas, carrying feathers and dust and chicken
droppings,” and changes the contour of the Defendants’ property from a natural drainage, resulting
in increased rainwater runoff.
        The Plaintiffs withdrew their claim for relief relative to the water runoff, and the Chancellor,
after a full evidentiary hearing, found a temporary nuisance, insofar as the odor from the new
chicken houses was concerned.1 She then awarded damages “for diminished rental value in the
amount of $100.00 per month for the time period of September 1993 to November 1999,” the month
and year her opinion was filed.

         The Defendants appeal, raising the following two issues:

             1. Did the Chancellor err in ruling that the weight and preponderance of the
             evidence established the existence of a temporary nuisance because of odor from
             the Defendants' chicken houses.

             2. Did the Chancellor err in ruling that the established date of ownership of the
             Plaintiffs' property was not subsequent to the date of the expanded operations of
             the Defendants' five new chicken houses so that proof of compliance with T.C.A.
             § 44-18-103 and 104 did not afford Defendants an absolute defense pursuant to
             T.C.A. § 44-18-102.

        The Plaintiffs and the Defendants owned property fronting on Corinth Church Road, lying
across this road from each other. The Plaintiffs entered into a contract on February 19, 1991, to
purchase approximately five acres which was improved with a dwelling house. They lived in this
house for a period of time and then rented it. At the time of the Plaintiffs’ purchase of the property
 there were three old small chicken houses located on the Defendants’ property, none of which were
in use at the time of the hearing below. Subsequent to the Plaintiffs acquiring their property the
Defendant constructed five much larger chicken houses on the portion of the property fronting
Corinth Church Road opposite the property owned by the Plaintiffs.2 The construction of the new
chicken houses began in August 1991.

       As to the first issue there is overwhelming proof from a number of witnesses as to the odor
from the new chicken houses, which were much closer to the house owned by the Plaintiffs than the
three smaller chicken houses. Indeed, the Defendant Al Miller testified that there was an odor for
approximately one and one-half weeks per every eight-week cycle when the chicken were being
loaded for market, which was the exact finding of the Trial Court.

       We accordingly conclude that as to the first issue this is an appropriate case for affirmance
under Rule 10(a) of this Court.



         1
                   The Chan cellor held that as to the old ch icken houses, T .C.A. 44-18 -102, hereinafter set o ut, was a
complete ba r to the Plaintiffs’ claims.

         2
                  The five small chicken houses held approximately 45,000 chickens and the five larger ones
approx imately 1 22,000 .

                                                           -2-
       As to the second issue, the Defendants contend that T.C.A. 44-18-102, 103 and 104,
hereinafter quoted as pertinent to this appeal, provide an absolute defense to Plaintiffs’ claim:

                 44-18-102. Nuisance action or proceeding against feedlot, dairy farm
         or egg production house. -- (a) In any nuisance action or proceeding against a
         feedlot, dairy farm, or egg production house brought by or on behalf of a person
         whose date of ownership of realty is subsequent to the established date of
         operation of such feedlot, dairy farm or egg production house, proof of
         compliance with §§ 44-18-103 and 44-18-104 shall be an absolute defense;
         provided, that the conditions or circumstances alleged to constitute a nuisance are
         subject to regulatory jurisdiction in accordance with § 44-18-103 or § 44-18-104.

        The Plaintiffs insist that the Defendants may not rely on that Statute because it was not
pleaded as an affirmative defense to their original action, and was only mentioned in oral argument
at the conclusion of the case. Because we do not have a transcript of the oral argument, we are
unable to determine whether the Plaintiffs objected to this defense. It would appear that they did not,
because the Chancellor specifically mentioned the Statutes in her memorandum opinion.

       Given the proof adduced as to the date of the contract for purchase and the date of the deed,
we will determine issue two as though the issue, although not raised in the pleading, was tried by
express or implied consent by the parties pursuant to Tenn.R.Civ.P. Rule 15.02.

        Having done so, it appears there is a dispute whether the above-quoted Statute is applicable.
It is undisputed that the five new chicken houses were built about August 1991 and, although the
Plaintiffs contracted to purchase their property on February 1, 1991, the deed was not made to them
until March 1992.

        The Defendants argue that because the contract the Plaintiffs entered into to purchase the
property was not recorded, the Statute is applicable to them. We disagree. We conclude that the
words in the Statute, “date of ownership of realty,” contemplate persons with an equitable interest
as the Plaintiffs obviously had, whether recorded or unrecorded. Obviously, the exception in the
Statute is to accord relief to purchasers who, like the Plaintiffs, did not know at the time they
became obligated to purchase the property of subsequent activities which would thereafter create a
nuisance.

        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of the judgment and costs below. Costs of appeal are adjudged against Al Miller,
Virginia Miller and Alfred M. Miller, Jr., and their surety.



                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE

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