                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             April 18, 2002 Session

ALEXIS JOHNSON and wife, GERRY JEAN JOHNSON, v. JESSIE DAVID
MALONE and wife, NANCY MARIE MALONE, THOMAS MALONE and
                wife, REBECCA BETH MALONE

                Direct Appeal from the Chancery Court for Hamilton County
                   No. 00-0429    Hon. W. Frank Brown, III., Chancellor

                                      FILED MAY 28, 2002

                                 No. E2001-02106-COA-R3-CV



Plaintiffs alleged their neighbor’s chicken houses constituted a nuisance and sought abatement. The
Chancellor determined the operation was not a nuisance. On appeal, we affirm.

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

HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which HOUSTON M. GODDARD,
P.J., and CHARLES D. SUSANO, JR., J., joined.

Hallie H. McFadden, Chattanooga, Tennessee, for Appellants.

Lynne D. Swafford, Pikeville, Tennessee, for Appellees.



                                            OPINION


               In this action to abate a nuisance, the Chancellor, after hearing evidence, ruled in
favor of defendants and plaintiffs have appealed.

                Plaintiffs and defendants own adjoining tracts of land in a rural area of Hamilton
County. Plaintiffs allege that in February of 2000, defendants built a chicken house and a chicken
manure disposal facility on defendants’ property in close proximity to plaintiffs’ property, and that
the exhaust fan from the chicken house “spewed noxious fumes from the chicken house directly into
Plaintiffs’ backyard.” After the evidence had been presented, the Court filed a Memorandum Opinion
which stated in pertinent part:
                       From a review of all testimony, the court concludes that the Plaintiffs have
               failed to carry their burden of proof on the issues of nuisance. There is no doubt that
               the area is an agricultural community and is zoned as such. The Malones already
               operated a chicken business on their property. After the Johnsons joined the
               neighborhood, the Malones expanded their business. Despite his testimony about his
               time on farms, it is apparent that Mr. Johnson, and his witnesses, would be
               characterized as a “city slicker” by everyone else who are “country folk.” The
               infrequent smell of chickens and/or their waste products do not affect the country
               folk who live near the Malones.

                      The court notes that none of the neighbors testified for the Johnsons. All of
               the neighbors, who testified for the Malones, stated (in effect) that there was no
               nuisance (for various reasons). . . .

                      Further, the court notes that the testimony was undisputed that the newer
               chicken houses are better built and designed than were the older, original houses on
               the Malones’ land. Also, the witnesses testified to the efficient manner in which the
               Defendants’ business operated. The court finds that the fans are slanted downward
               toward the ground and/or berms and are not “aimed” at the Plaintiffs’ home.

               On appeal, plaintiffs insist that their evidence establishes a nuisance which should
be abated.

                 In this jurisdiction, a nuisance has repeatedly been defined as “anything which annoys
or disturbs the free use of one’s property, or which renders its ordinary use or physical occupation
uncomfortable. Pate v. City of Martin, 614 S.W.2d 46 (Tenn. 1981); Caldwell v. Knox Concrete
Products, Inc., 391 S.W.2d 5 (Tenn. Ct. App. 1964). Further, a nuisance “extends to everything that
endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the
reasonable and comfortable use of property.” Pate. To determine whether a particular situation
constitutes a nuisance, the court must look at the “locality and the character of the surroundings, the
nature, utility and social value of the use, the extent and nature of the harm involved, the nature,
utility and social value of the use or enjoyment invaded, and the like.” Id. Thus, the issue of
whether a nuisance exists pursuant to the above definition is a question of fact. Caldwell.
Accordingly, our review of the Trial Court’s decision is de novo with a presumption of correctness,
unless the evidence preponderates against the Trial Court’s findings of fact. Tenn. R. App. P. 13(d).

               Plaintiffs argue the trial court erred by applying an incorrect standard in that they
charge the Trial Court overemphasized the “community” factor. We cannot agree. The Trial Court
considered the locality, and found the area was rural and had farms and other agricultural uses in
place. The Trial Court credited the testimony of plaintiffs and their witnesses as to the odor of the
chicken houses, but stated the smell was not offensive to the “country folk” who lived nearby. Thus,
the Court properly considered the “locality and character of the surroundings”. See Caldwell.



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                 The Court properly considered the other applicable factors as well. Regarding the
“nature, utility and social value of the use”, the Court found that there was nothing illegal about the
poultry farm, in fact, the proof was undisputed that it was an efficient, well-run operation. The proof
was also undisputed that the farm served a valuable purpose for the Malones, in that it allowed them
to keep and work at their farm.

                Regarding the “nature, utility and social value of the use or enjoyment invaded”, the
Court found that plaintiffs’ case seemed to “shrink” as the trial went on, indicating that the extent
of the harm involved was not as great as originally alleged. The Court found that plaintiffs had not
shown sufficient proof of harm, as they had not been driven from their home, or damage to their
property. Our review establishes that the Chancellor considered all of the appropriate factors, and
found that the plaintiffs had not proven their case. The evidence does not preponderate against the
Trial Court’s determination. Tenn. R. App. P. 13(d). McCarty v. McCarty, 863 S.W.2d 716 (Tenn.
Ct. App. 1992).

               Plaintiffs cite cases where the Court found the existence of a nuisance, but the
outcome of these cases is dependent on the facts and circumstances of each. In the cases where the
Court determined a nuisance existed, a common theme was that there was sufficient proof of
unreasonable harm, such as an odor that drove people from their home, noises that were
demonstrated to be ridiculously loud and interfered with one’s ability to sleep, and further
established diminution in property values. The Chancellor found plaintiffs failed to establish these
elements, and we agree.

                Finally, plaintiffs argue that the Chancellor erred in granting equitable relief to
defendants when such was not pled as a defense nor tried with express or implied consent.1 We
pretermit this issue because we affirm the Chancellor’s Judgment on other grounds.

               The cost of the appeal is assessed to plaintiffs Alexis Johnson and Gerry Jean
Johnson.



                                                       _________________________
                                                       HERSCHEL PICKENS FRANKS, J.




       1
         In the Memorandum, the Chancellor mentioned that it was inequitable for plaintiffs to allow
defendants to go forward with building the chicken house and expending those resources when he
basically “knew all along” that the chicken houses were going to create a problem for him.

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