             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                          FILED
                                                          September 1, 1999

                                                          Cecil Crowson, Jr.
DOROTHY AND ROGER SMITH,                   )             Appellate Court Clerk
                                           )
       Plaintiffs/Appellees,               )
                                           )    Appeal No.
                                           )    01-A-01-9804-CH-00207
VS.                                        )
                                           )    Maury Chancery
                                           )    No. 92-319
MAURY COUNTY,                              )
                                           )
       Defendant/Appellant.                )


       APPEALED FROM THE CHANCERY COURT OF MAURY COUNTY
                    AT COLUMBIA, TENNESSEE

                   THE HONORABLE WILLIAM B. CAIN, JUDGE




RICHARD H. DINKINS
306 Gay Street
Suite 210
Nashville, Tennessee 37201
       Attorney for Plaintiffs/Appellees

WILLIAM H. DALE, JR.
P. O. Box 424
Columbia, Tennessee 38402-0424
       Attorney for Defendant/Appellant




                           REVERSED AND REMANDED




                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.


CONCUR:
KOCH, J.
COTTRELL, J.
                                  OPINION


              The plaintiffs, a mother and her son owning adjoining farms on a rural

road in Maury County, sued the county for a nuisance created when the county

improved the road. The county argued that the exclusive remedy was for inverse

condemnation, and that the one year statute of limitations barred the action. On

appeal the county asserts, in addition to its original defense, that the damages

awarded were beyond the range of reasonableness. We reverse the judgment below

and remand for a new trial.



                                            I.



              Mrs. Dorothy Smith owns sixty-three acres on Tanyard Hollow Road in

Maury County. Her son, Mr. Roger Smith, owns seventy-seven acres adjoining his

mother’s property to the south. In 1989 or 1990 the Smiths and other landowners in

the neighborhood petitioned the county to widen and improve the road.                 The

neighbors agreed to convey to the county a fifty foot right of way without charge. The

county began the work in the spring of 1990. They straightened the road and leveled

it out, cutting dirt from the high places to fill the low places. In the course of the

construction they destroyed two stone-lined underpasses, big enough to serve as

cattle crossings and replaced them with metal culverts. The construction also altered

the drainage in the area of the Smiths’ property and the county left the cuts

unprotected, causing extensive erosion in some places. The county substantially

completed the project by September of 1990.



              On May 29, 1992, Mr. and Mrs. Smith sued the county for creating a

continuing nuisance on their properties. They also alleged that the county’s actions

amounted to an unlawful taking of their property without just compensation. The

county filed an answer denying the material allegations of the complaint and raising

the statute of limitations as a defense to some or all of the plaintiffs’ claims. Mr. Smith

                                           -2-
amended his complaint to add a claim for indemnity for the claims of his neighbor that

water runoff from Mr. Smith’s property was eroding the neighbor’s property.



             The jury returned a verdict for Mrs. Smith in the amount of $10,000 and

for Mr. Smith in the amount of $100,000. The trial judge suggested a remittitur of

$50,000 in Mr. Smith’s case, which Mr. Smith accepted under protest.



                                           II.

                Temporary Nuisance vs. Inverse Condemnation



              The county asserts that the plaintiffs’ exclusive remedy was for inverse

condemnation and that the one year statute of limitations in Tenn. Code Ann. § 29-16-

124 had run when this action was filed. We admit that this issue causes us some

trouble because the plaintiffs testified that the problems about which they complain

were obvious from the time of the first rain after the completion of the project.

Therefore, any damage resulting from a taking of the plaintiffs’ property would have

been barred after November of 1991. See Hollers v. Campbell County, 241 S.W.2d

523 (Tenn. 1951); Jones v. Cocke County, 420 S.W.2d 587 (Tenn. App. 1967).



              The problem is compounded by a line of decisions in this state that

seem to require a landowner to sue for inverse condemnation rather than nuisance,

when a public construction project damages the remaining land. In Monday v. Knox

County, 417 S.W.2d 536 (Tenn. 1967), the landowner sued the county for causing

water to collect on the plaintiff’s property, because the county failed to provide

adequate drainage in the construction of a new highway. The court said the exclusive

remedy was in inverse condemnation and the county was not liable for creating a

nuisance. The court expressed its reason this way:

              Complainant here alleges the condition causing the
              damages can be easily corrected by making certain
              construction changes in the public road. Presuming this
              to be true the court has no authority to order such change
              in construction; for to do so would in effect be constructing



                                          -3-
              public roads by judicial order which would result in utter
              chaos.

417 S.W.2d at 537.



              In Pleasant View Utility Dist. v. Vradenburg, 545 S.W.2d 733 (Tenn.

1977), plaintiffs sued a utility district for discharging thousands of gallons of water onto

their land every three days. The complaint asked for an injunction to abate the

nuisance. The Supreme Court held that the defendants’ action of discharging water

across the plaintiffs’ property was a taking of a flowage easement and that the proper

remedy was damages for the taking. The Court said:

                      Having the power of eminent domain, any action of
              petitioner, in carrying out the purposes for which it was
              created, which destroys, interrupts, or interferes with the
              common and necessary use of real property of another is
              a “taking” of such property, and the landowner’s remedy
              is an action for damages under the inverse condemnation
              statute (T.C.A. §23-1423), not injunctive relief; and, the
              action for damages is subject to the one year time
              limitation set forth in T.C.A. § 23-1424.

545 S.W.2d at 735.



               On the other hand, the court in Hayes v. City of Maryville, 747 S.W.2d

346 (Tenn. App. 1987), held that the proper action for damages for an excessive

runoff of water caused by the improvements to a city street was not an action for

inverse condemnation but for a temporary nuisance. The court relied on Pate v. City

of Martin, 614 S.W.2d 46 (Tenn. 1981), in which the city operated a sewage lagoon

in such a manner that the odor made “habitation of dwellings in the vicinity almost

impossible.” Without discussing the question of whether nuisance was the proper

theory for recovery, the Supreme Court concluded that the lagoon constituted a

temporary nuisance and the measure of damages was, to a large extent, the

diminished rental value of the property until the abatement of the nuisance. Id. at 48.



               Following the decision in Hayes, the Supreme Court addressed the

question again in Paduch v. City of Johnson City, 896 S.W.2d 767 (Tenn. 1995).

Although the court decided that the plaintiffs had not proved the existence of a

                                           -4-
nuisance, the court approved the result reached in Hayes. 896 S.W.2d at 772. We

conclude, therefore, that a landowner whose property has been adversely affected by

a county improvement has a choice of remedies against the county. If the adverse

effect amounts to a taking of the owner’s property, the proper remedy is inverse

condemnation under the eminent domain statutes. See Tenn. Code Ann. § 29-16-

123, 124. If, however, the effect on the landowner’s property is a nuisance (described

by the Supreme Court in Pate v. City of Martin, as “anything that annoys or disturbs

the free use of one’s property, or that renders its ordinary use or physical occupation

uncomfortable.” 614 S.W.2d at 47), the landowner may sue the county for the

nuisance. The inverse condemnation claim will be barred one year after discovery of

the taking.



                 A further complication in this case is the additional holding in Hayes

which neither party addressed at the trial or in this court. That is the requirement that

the nuisance remedy must be pursued in accordance with the Governmental Tort

Liability Act (GTLA). The Hayes court said:

                 Thus, it seems clear that Hayes’ claim for water damage
                 to the property is a claim for temporary nuisance.
                 However, because the claim is against a municipality of
                 the State of Tennessee, it must be adjudicated under the
                 provisions of the Tennessee Governmental Tort Liability
                 Act, T.C.A. §§ 29-20-101, et seq. (1980 and Supp. 1987).

747 S.W.2d at 350.



                 In Paduch the Supreme Court also approved this holding. The Court

said:

                         A cause of action under the Governmental Tort
                 Liability Act may lie for activities of a governmental entity
                 for which immunity has been waived even though such
                 activities may also be the basis for the equitable action to
                 abate a nuisance. The provisions of the Governmental
                 Tort Liability Act are applicable to any action or defense
                 asserted which comes within the terms of the Act.

896 S.W.2d at 772.1


        1
          This action is about damage s, and there can be no doubt that an action for damages against
a mun icipality mus t be brou ght unde r the provis ions of the GTL A. See Tenn. Code A nn. § 29-20-201(b).
The plaintiff also prayed for an injunction, although they have not pressed that issue. We take no

                                                  -5-
                Hayes was not the first decision on this point. The western section of

this court held as early as 1983 that “the legislature left little if any room for doubt that

actions against governmental entities for damages based on activities historically

labeled ‘nuisance’ are now included in and covered by the act.” Collier v. Memphis,

Light, Gas & Water Division, 657 S.W.2d 771, 776 (Tenn. App. 1983). The same

court followed that reasoning two years later in Smith v. City of Covington, 734 S.W.2d

327 (Tenn. App. 1985). In Smith, sewage intermittently backed up on the plaintiff’s

property because of an inadequate city sewer system. The court recognized that the

city was maintaining a nuisance but found that, in order to maintain the action, the

plaintiff must comply with the notice requirements of the Governmental Tort Liability

Act. The eastern section of this court recently followed the western section in Britton

v. Claiborne County, Tenn., 898 S.W.2d 220 (Tenn. App. 1994).



                                                  III.

                                             Damages



                The plaintiffs introduced the testimony of a professional geologist and

construction manager who described the effect of the road work on the Smiths’

property. One of the primary changes was the destruction of the two underpasses

that served the Smiths as cattle crossings. The county replaced the underpasses with

metal culverts that were unsuitable for the passage of cattle. The witness estimated

that the underpasses could be restored at a cost of $32,000.



                 The other major effect of the road work was the erosion of a hillside on

Mr. Smith’s property. The witness described how the cut into the slope by the county

had exposed the ground and how the water had caused the hillside to slip in

successive stages up to a distance of approximately seventy feet from the right of

way. The total area involved was three to four acres of Mr. Smith’s land. The witness


position on whether a plaintiff would also have to comply with the GTLA if the com plaint s oug ht on ly
injunctive relief.

                                                 -6-
estimated that it would take $100,000 to restore the hillside.        All the remedial

measures recommended by the witness would cost a total of $238,000.                The

testimony was admitted over the defendants’ objection.



              Mr. Smith concedes that he had no vested right to the use of the

underpass on his property. Therefore, he sustained no damages when it was

replaced by a metal culvert. We think it was error to allow the jury to hear evidence

that the underpass could be restored for a cost of $32,000.



              As we have seen, the measure of damages for a temporary nuisance

is basically the diminished rental value of the property affected by the nuisance. Pate

v. City of Martin, 614 S.W.2d 46 (Tenn. 1981). The plaintiffs did not offer any proof

of the value of their land, or its rental value. The county introduced evidence that the

rental value of the property was fifteen to sixteen dollars per acre per year.



              The plaintiffs argue that the damages should also include something for

their discomfort, annoyance, and inconvenience. The county asserts that discomfort,

annoyance, and inconvenience are merely factors that affect the rental value of the

property. That seems to be the rule announced in City of Nashville v. Wills, 7 Higgins

97 (Tenn. Civ. App. 1916), where the court said: “there can be no recovery for mere

discomfort, annoyance or mental distress occasioned by the nuisance, unless such

discomfort, annoyance, etc., proceeds to the extent of injuring the usable or rental

value of the premises.” 7 Higgins at 109. The court deduced this rule from the

Supreme Court’s decisions in Gossett v. So. Ry., 115 Tenn. 390 (1905) and Terminal

Co. v. Lellyett, 114 Tenn. 368, 407 (1904). The plaintiffs rely on Terminal Co. v.

Jacobs, 109 Tenn. 727, 739 (1902), in which the court approved the following jury

instruction: “[the jury] might look, among other things, to such as occurred to the use

of her property, as her residence or home, etc., taking into consideration in such

assessment discomfort, annoyance, etc., which she may have suffered from smoke,

etc.”



                                         -7-
             We do not think the statement from Terminal Co. v. Jacobs is a clear

endorsement of the rule that damages may be awarded for discomfort and annoyance

separate and apart from the diminution of the rental value of the property. It seems

to us that the discomfort and annoyance in the instruction refer to what happened “to

the use of her property.” Therefore, we hold that on remand the damages shall not

include an award for discomfort, annoyance, and inconvenience separate and apart

from the diminution of the rental value.



              The judgment of the court below is reversed and the cause is remanded

to the Circuit Court of Maury County for a new trial in accordance with the Tennessee

Governmental Tort Liability Act. Tax the costs on appeal to the appellees.




                                           _________________________________
                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
PATRICIA J. COTTRELL, JUDGE




                                           -8-
