                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     July 11, 2002 Session

            MARCHELLA ANN RICHARDSON v. TERRY STACEY

              A Direct Appeal from the Chancery Court for Rutherford County
               No. OOMI-1369     The Honorable Robert E. Corlew, III, Judge



                    No. M2001-02167-COA-R3-CV - Filed August 13, 2002


Plaintiff, landowner, sued defendant, adjoining landowner, to enjoin him from trespassing on her
land, committing a nuisance, and for damages. Plaintiff secured a temporary restraining order, and
after a nonjury trial, plaintiff was granted injunctive relief in several particulars and was awarded
compensatory and punitive damages. Defendant appeals. We modify in part and affirm as modified.


Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Modified in Part,
                                and Affirmed as Modified

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY KIRBYLILLARD,J., joined.

William Kennerly Burger, Murfreesboro, For Appellant, Terry Stacey

Jeff Reed, Murfreesboro, For Appellee, Marchella Ann Richardson

                                             OPINION

        Plaintiff, Marchella Ann Richardson, sued defendant, Terry Stacey, seeking injunctive relief
and damages. The complaint alleges that the parties are adjoining landowners. Plaintiff owns a
parcel of 49.95 acres, and defendant owns a parcel of 15.16 acres. Both parties have residences on
the property, and plaintiff alleges that she keeps a number of cattle and horses on her property and
has posted “No Trespassing” signs on her property. The complaint avers that notwithstanding the
“No Trespassing” signs and personal demands and complaints from the plaintiff, the defendant has
repeatedly trespassed upon plaintiff’s property and has also allowed invitees to do the same.
Plaintiff avers that defendant engaged in illegal hunting activity on his property and that in the
course of the hunting, he and his invitees trespassed on her property. The complaint alleges that on
a dove hunt conducted by defendant on September 1, 2000, there were numerous hunters who
discharged firearms toward and over the plaintiff’s property, trespassed thereon, and that the
shooting was so intense that plaintiff’s phone lines and electrical lines were damaged, cutting off her
services. The complaint further avers that she had repeatedly told the defendant that he should not
be trespassing on her property or discharging firearms toward her property, and notwithstanding this,
she had bullet holes in her residence. She alleges that defendant continues to trespass on her
property and has intentionally and willfully acted against plaintiff’s interest.

       The complaint avers that defendant has willfully and intentionally removed fencing, had
located deer stands on the fence line between the parties’ property where he could shoot onto or
toward plaintiff’s property when hunting and that his activities deny the plaintiff the peaceful use
and enjoyment of her property and has also caused damage to her property.

       Plaintiff seeks to enjoin the defendant from trespassing upon plaintiff’s property, discharging
firearms or other projectiles toward, above, on, or in the direction of plaintiff’s property, and to
prohibit hunting in any manner that would infringe upon plaintiff’s use of her property. The
complaint also seeks an injunction to enjoin the defendant from threatening plaintiff in any manner
and seeks an award of damages both compensatory and punitive.

        A temporary restraining order was issued enjoining the defendant as prayed by plaintiff.
Defendant’s answer to the complaint admits that the parties are neighbors and admits that he had
been on plaintiff’s land in the past but that when plaintiff requested that he not do so again, he has
never gone back or trespassed in any manner. Defendant denies that he had caused any damage to
plaintiff’s property and denies that he or his guests have crossed onto plaintiff’s property. He also
denies that he caused any damages to plaintiff or her property.

        A nonjury trial was held on August 6, 2001. Plaintiff testified that she and the defendant own
adjoining parcels of land, and that she purchased her property in 1995. She stated that the first
incident with the defendant occurred in September of 1997. Defendant had a dove hunt on his
property which apparently spilled over onto the property of another neighbor, Mr. Baker. She
alleged that in February of 1998, defendant was hunting on her property and, when his truck broke
down, he asked one of plaintiff’s employee to help him repair the truck. She stated that in
September of 1998, defendant had a pay-hunt on his property, and she called the sheriff. The sheriff
advised the defendant to get off of plaintiff’s property. She testified that she has “No Trespassing”
and “No Hunting” signs posted on her property. She also testified that when she started putting
improvements on her property, she told the defendant that there would be no more hunting on her
property at all. On or about September 20, 1999, she noticed the soffit on the end of her barn
appeared to have been shot off. When she discussed this with the defendant, he stated that he did
not hunt with a rifle, and she noted that after that time she saw him going to his tree stand on his
property with a rifle in his hand. She testified that the defendant has five tree stands on the fence
line between their properties, and they are located on the very narrow strip of land that the defendant
uses for hunting.

       She further testified that on the narrow part of the hunting strip, there was a gate there before
she bought the farm. She put a chain with a lock on the gate, but she discovered that the chain had


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been cut and a new pad lock had been replaced by the defendant. She further testified that she had
seen the defendant four-wheeling on her property only one time.
        She testified that on September 1, 2000, the defendant had his “regular” dove hunt which
started at 12 noon. About three o’clock, she noticed that she had no electricity. Also, when she tried
to use the telephone, she found she had no service. She determined that everyone else around her
had electricity and telephone service, so she went to the dove hunting area and told the defendant
that she thought he had shot the power lines down. At that time, she counted thirty two hunters on
the defendant’s property, and some these hunters were on her property. She called the police on that
incident, and after the hunt she found over six hundred shot gun shells on her property. She testified
that she never allowed any hunting on her property. She further testified that just prior to the trial
of the case, three of her cats died from poisoning. She also had some vague statement about her
walking horse that she contended had been shot. She also testified that when she asked the defendant
to stop hunting on her property, he told her he could hunt wherever he wanted and that if game fell
on her property, he had a right to go get it. In July, just prior to trial, she found an expended
firework-type rocket on her property, and the defendant admitted that he had fired fireworks on July
4th for his family, and this rocket could have been one that he fired. Plaintiff also testified that she
had not been able to use approximately ten acres of her property because of fear for her safety and
the safety of her animals. She testified that she paid her nephew $25.00 to pick up shotgun shells
on her land. She also expended money for repair of fences but did not have any figures for that
amount.

        Plaintiff also testified that since the court hearing on the temporary restraining order in
October of 2000 until the time of trial, she does not know of any time that defendant has hunted on
her property. The only problem she has had since the October hearing was finding the one expended
firework rocket on her property after the 4th of July. She testified that she is seeking $5,000.00 in
compensatory damages for “the mental anguish and grief in all that I’ve been through.” She states
that she is also seeking $5,000.00 punitive damages under the same rationale.

       Alan York, a game warden for Rutherford County, testified that pursuant to a complaint
made by the plaintiff, he inspected the defendant’s field. His inspection revealed that the field was
improperly baited and had been posted as a baited field. Under the regulations, it could not be
hunted for ten days after it had been re-sewn or re-baited.

        Janice Wittstruck testified that she is a neighbor of the parties residing at 618 Rocks Spring
Road, Christiana, Tennessee. She testified that she has witnessed the defendant trespassing on the
plaintiff’s property during the past dove season. She stated that she saw three people on the
plaintiff’s property and that there were probably about twenty or so hunters altogether. She stated
that there was a lot of shooting, and the noise was quite disturbing. She further testified that on
occasion she had seen the defendant and his guests aiming through scopes with rifles and that
generally they were a rowdy crowd.

        For the defense, the defendant, Terry Stacey, testified that a little over three years ago the
plaintiff asked him to stop coming on her property. He complied with this request and has not been

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on her property since without her consent. He testified that he did not have a commercial hunting
business but had friends and family over for dove hunts. He stated that he tried to tell everyone that
hunted on his property that they were not to go on the plaintiff’s property. In regard to the plaintiff’s
complaint about four-wheeling on her property, he stated that that was over three years ago when
he had permission to be there. As to his truck breaking down on plaintiff’s property, he stated that
he also had her permission at that time, and he reiterated that when she told him to stop coming on
her property, he complied with her request. He testified that before she asked him not to come on
her property, she was “totally different neighbor.” It was after he granted an easement across his
property for her electric and phone lines that things changed. He further testified that he had
complied with the temporary restraining order and has not hunted on his property in the back field
since that time. He confirmed the testimony of the game warden concerning his field, and he
complied with the game warden’s instructions. He denied having any involvement whatsoever in
the death of her cats and the injury to her horse. On cross-examination, he was questioned about the
chain on the gate that he had replaced. He testified that when he bought the property in 1990, the
gate was on the front of his property before it was moved.. He stated that because it was his gate,
he thought that he could have a lock on the chain. He reiterated that when she originally had given
him permission to hunt on her property, there was a tree stand on the property line between them.
He stated that the last time he talked to the plaintiff, he told her that he had moved the tree stand.
He further testified that he had visited some of the neighbors to have them sign a paper concerning
the plaintiff’s allegedly illegal septic tank, and that he had complained to the county authorities
concerning this. He was further questioned concerning the fireworks on the 4th of July, and he
admitted that he fired fireworks for his children and that one of them accidentally had landed on her
property. With regard to the damage to the plaintiff’s barn, he testified that she never stated when
the damage occurred. He testified that he had never hunted “back there” and had never fired a “big
gun then,” and that he could not have been the one that caused such damage. He further stated after
her request to stay off her property, he never went back to the property or trespassed in any manner.
Defendant denied that he has caused any damage to the plaintiff’s property and denied that he or his
guests have fired across or onto plaintiff’s property. He also denied that he caused any damage to
plaintiff or her property.

        On August 20, 2001, the court entered its order finding that a permanent injunction should
issue and that both compensatory and punitive damages should be awarded. The order provides in
pertinent part:

                         With regard to the issue of damages, the Court finds that there
                is sufficient circumstantial evidence which preponderates in favor of
                the Plaintiff’s compensatory damage claim of $5,000.00. The Court
                further finds that the Defendant Stacey’s misconduct was done
                willfully and knowingly such that punitive damages should be
                awarded to the Plaintiff.

                      The Court further held a bifurcated hearing on the issue of the
                amount of punitive damages, and additional proof was presented.

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Upon presentation of additional proof, and an analysis of the factors
to be considered in determining punitive damages, the Court
determines that $1,500.00 is an appropriate amount of punitive
damages. Accordingly,

       It is HEREBY ORDERED, ADJUDGED AND DECREED:

       1. A Permanent Injunction is hereby issued against Terry
Stacey prohibiting:

        a. the Defendant Terry Stacey or any of his guests from
discharging firearms, firing guns, shooting arrows or any other
projectiles towards, above, on, onto or in the direction of the
Plaintiff’s property; and

        b. the Defendant Terry Stacey from trespassing on the
Plaintiff’s property, allowing his guests to do so, disassembling
fences between the parties’ properties, or retrieving game from the
Plaintiff’s property.

2. The Defendant Terry Stacey, and any of his guests, are hereby
permanently enjoined from firing any weapons on his property except
in a generally easterly direction presupposing that the owner of the
adjoining property to the east gives Mr. Stacey permission to do so.
Mr. Stacey is permanently enjoined from, or allowing his guests to,
fire to the west or north of his property.

3. The Defendant Terry Stacey is hereby required to remove the tree
stand encroaching on the boundary of the two parties’ property.

4. The Defendant Terry Stacey is prohibited from threatening,
intimidating, or coming within one hundred feet (100') of the
Plaintiff, Marchella Ann Richardson.

5. The Plaintiff Marchella Ann Richardson is awarded compensatory
damages against the Defendant Terry Stacey in the sum of $5,000.00.

6. The Court further finds it appropriate to award punitive damages
to the Plaintiff against the Defendant Terry Stacey in that Terry
Stacey’s misconduct was committed knowingly.

7. Having conducted a bifurcated hearing on the issue of the amount
of punitive damages, the Court awards the Plaintiff, Marchella Ann

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               Richardson, punitive damages, in addition to compensatory damages,
               against the Defendant Terry Stacey in the amount of $1,500.00.
               Accordingly, the total judgment awarded to the Plaintiff against the
               Defendant is $6,500.00.

               8. The Court costs of this cause are assessed to Terry Stacey for
               which execution may issue.

       The defendant has appealed and presents one issue for review as stated in his brief:

                       Does the preponderance of the evidence support the trial court
               finding that the Defendant/Appellant engaged in any conduct which
               justified injunctive relief, or an award of either compensatory or
               punitive damages?

        Since this case was tried by the court sitting without a jury, we review the case de novo upon
the record with a presumption of correctness of the findings of fact by the trial court. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

         When the resolution of the issues in a case depends upon the truthfulness of witnesses, the
trial judge who has the opportunity to observe the witnesses in their manner and demeanor while
testifying is in a far better position than this Court to decide those issues. McCaleb v. Saturn Corp.,
910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.
1997). The weight, faith, and credit to be given to any witness’s testimony lies in the first instance
with the trier of fact, and the credibility accorded will be given great weight by the appellate court.
Id.; In re Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

        The summary of plaintiff’s complaints against the defendant are his presence on her property
without permission on one occasion with the use of his four-wheeler, his presence on her property
without her permission on one occasion with his truck, damage to her barn allegedly caused by rifle
shot, the death of three cats, injury to her horse, defendant and his guests’ presence on her land while
dove hunting, causing her electric power and telephone lines to be damaged, and the otherwise
interference with the use and enjoyment of her property. These complaints constitute an action for
trespass and for maintenance of a private nuisance. A private nuisance is created where a landowner
uses his property in such a manner as to unreasonably interfere with plaintiff’s use or enjoyment of
his or her own property. See Sadler v. State, 56 S.W.3d 508, 511 (Tenn. Ct. App. 2001). A
nuisance is “anything which annoys or disturbs the free use of one’s property or which renders its
ordinary use or physical occupation uncomfortable.” Zollinger v. Carter, 837 S.W.2d 613, 615
(Tenn. Ct. App. 1992). We ascertain from a review of the record that there is absolutely no proof
that the defendant was involved in any way with the death of the plaintiff’s three cats or to the injury
to the horse. Testimony as to the time element when these alleged injuries occurred to the plaintiff
was not specific, nor was there any evidence that the defendant committed any acts of that nature.
The record is void of any evidence of damage occurring to the plaintiff by virtue of the defendant’s

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trespassing with his four-wheeler or trespassing with his truck, each of which occurred only on one
occasion. The plaintiff also contends that there was damage to her barn caused by rifle fire, but there
is no indication in the proof as to when this occurred, and the conclusion by the plaintiff that the
damage was from a rifle and also caused by the defendant is somewhat suspect.

        The crux of the plaintiff’s complaint is the September 2000 dove hunt when several of the
defendant’s invitees went on her property and also when her electricity and telephone service were
interrupted because of the gun fire. There is no proof as to how long she was without these services,
but apparently it was temporary.

        The trial court awarded the plaintiff $5,000.00 compensatory damages which were prayed
for in her complaint but made no specific findings as to what constituted the elements for the award.

       A party seeking damages has the burden of proving them, but in tort cases the proof of
damages need not be exact or mathematically precise. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694,
703 (Tenn. Ct. App. 1999). The proof of damages must be as certain as the nature of the case
permits and must enable the trier of fact to make a fair and reasonable assessment of the damages.
Id. Damages may never be based on mere conjecture or speculation. However, uncertain or
speculative damages are prohibited only when the existence, not the amount, of damages is
uncertain. Id. The evidence required to support a claim for damages need only prove the amount
of damages with reasonable certainty. Id.

        A party subjected to a nuisance may be entitled to several types of damages which include
the cost of restoring the plaintiff’s property to its condition prior to the creation of the nuisance,
personal damages, such as inconvenience and emotional distress, and injury to the use and enjoyment
of the property. Such damages are not mutually exclusive. Pryor v. Willoughby, 36 S.W.3d 829
(Tenn. Ct. App. 2000).

         In the case before us, there is very little, if any, proof of any real emotional distress on the
part of the plaintiff. She did testify that she was unable to enjoy the full use of her property, but this
apparently was for a very temporary period of time, considering her testimony lacks the length of
time she suffered any such inconvenience. Plaintiff’s proof simply does not show with reasonable
certainty damages in the amount of $5,000.00. The plaintiff testified that she paid her nephew
$25.00 to clean up shot gun shells and that she had some expense of an unknown amount for some
additional wire and fencing. Primarily, the plaintiff was upset and discommoded by the dove hunt
on September 1, 2000 and was without electricity and telephone service for a temporary period of
time. We are sure she was disturbed by the shotgun fire in such close proximity to her house for this
temporary period of time. However, this inconvenience and the stress shown in this record for that
period of time does not rise to an award of $5,000.00. Based on the proof in the record, it appears
that a nominal amount of compensatory damages would be warranted, and $500.00 would be a
reasonable award. Therefore, the order of the trial court is modified to award $500.00 compensatory
damages.



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         Concerning the question of punitive damages, such damages may be awarded only if the trier
of fact finds that a defendant has acted either intentionally, fraudulently, maliciously, or recklessly.
Hodges v. S. C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). In Hodges, the Court said:

                        A person acts intentionally when it is the person’s conscious
                objective or desire to engage in the conduct or cause the result. Cf.
                T.C.A. § 39-11-302(a) (1991)(criminal definition of “intentional”).
                a person acts fraudulently when (1) the person intentionally
                misrepresents an existing, material fact or produces a false
                impression, in order to mislead another or to obtain an undue
                advantage, and (2) another is injured because of reasonable reliance
                upon that representation. See First Nat’l Bank v. Brooks Farms,
                821 S.W.2d 925, 927 (Tenn. 1991). A person acts maliciously when
                the person is motivated by ill will, hatred, or personal spite. A person
                acts recklessly when the person is aware of, but consciously
                disregards, a substantial and unjustifiable risk of such a nature that its
                disregard constitutes a gross deviation from the standard of care that
                an ordinary person would exercise under all the circumstances. Cf.
                T.C.A. § 39-11-302(c) (1991) (criminal definition of “reckless”).

Id. at 901.

         In the instant case, the trial court found that the defendant, while he did not act fraudulently
or maliciously, did intend to engage in the dove hunt and fire, along with his guests, the shotguns
across her property so as to damage electric and telephone lines and in so doing was also acting
recklessly within the definition set out above. The evidence does not preponderate against that
finding. Moreover, the evidence introduced on the question of punitive damages indicated that the
trial court considered the necessary elements as established in Hodges, supra, including the expense
that the plaintiff had incurred in an attempt to seek relief as a result of defendant’s conduct. The
evidence does not preponderate against the trial court’s finding that punitive damages in the amount
of $1,500.00 is proper.

        Concerning the injunctive relief granted, we do not disagree with the trial court that some
injunctive relief is in order. However, we do observe that the injunction granted is somewhat over-
broad. We have no quarrel with the injunction set out in the order in Paragraphs 1 a.. b., 3, and 4.
However, the provisions of the Paragraph 2 exceed the bounds necessary to grant relief to the
plaintiff. The defendant should not be prohibited from firing a weapon on his property, except to
the extent that it is prohibited by the other paragraphs referred to above. Therefore, the injunction
issued should be modified to eliminate the provisions of Paragraph 2 of the order.

       Accordingly, the order of the trial court is modified to award the sum of $500.00 as
compensatory damages, and the injunction issued is modified to eliminate the provisions of
Paragraph 2 of the order. The order of the trial court is in all other respects affirmed. Costs of the


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appeal are assessed to the appellant, Terry Stacey, and the case is remanded to the trial court for such
further proceedings as may be necessary.




                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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