To supplement these definitions, the Tennessee Supreme Court has also stated that if the operation that allegedly caused the nuisances is "done with due care considering the use thereof, and it is not contemplated that any change in operation will be made, the damage is permanent." Butcher v. Jefferson City Cabinet Co., 59 Tenn. App. 59, 437 S.W.2d 256, 259 (Tenn. [Tenn.App.] 1968) (citations omitted). This analysis hinges on whether the operations on Defendant's property are reasonable and lawful as well as the permanence of the damage.
The memorandum decision of the District Court correctly holds that in accordance with Tennessee precedent the dam was a permanent nuisance. Robertson v. C.N.O. T.P. Ry. Co., 207 Tenn. 272, 339 S.W.2d 6 (1960); City of Nashville v. Comar, 88 Tenn. 415, 12 S.W. 1027 (1890); Butcher v. Jefferson City Cabinet, Tenn.App., 437 S.W.2d 256 (1968). And since the dam was a permanent nuisance, it follows that plaintiff, if not barred by the statute of limitations, had a single cause of action, which was a right to relief for injury to the land.
After due consideration, the Court concludes that under Tennessee law, an actionable claim for a private nuisance may involve a single act or conduct having a continuous effect on a plaintiff's legally protectable property interest. See Butcher v. Jefferson City Cabinet Co., 437 S.W.2d 256, 258 (Tenn. Ct. App. 1968) (considering a nuisance claim and noting that "[i]t is not necessary that the act or acts complained of be habitual or periodical. Where a single act produces a continuing result, the violation by a party may be complete without a reoccurrence of the violation"); Williams v. Cross, 65 S.W.2d 198, 201 (Tenn. Ct. App. 1932) (discussing an alleged nuisance due to the presence of a toilet near to property owned by the plaintiff, which, at various times, would overflow and cause noxious odors to waft onto the plaintiff's property).
Id. (quoting Robertson v. Cincin[n]at[]i, New Orleans & Texas Pacific Ry. Co., 339 S.W.2d 6, 8 (Tenn. 1960)). On the other hand, a nuisance is permanent if "the operation is done with due care considering the use thereof, and it is not contemplated that any change in operation will be made...." Clabo, 121 S.W.3d at 672 (quoting Butcher v. Jefferson City Cabinet Co., 437 S.W.2d 256, 259 (Tenn. Ct. App. 1968)).A proper classification of the nuisance, either temporary or permanent, must be made in order to analyze a statute of limitations defense.
If, however, "'the operation is done with due care considering the use thereof, and it is not contemplated that any change in operation will be made, the damage is permanent[.]'" Id. (quoting Butcher v. Jefferson City Cabinet Co., 437 S.W.2d 256, 259 (Tenn. 1968)). As previously noted, whether a nuisance is permanent or temporary is a question of fact that is generally properly determined by the jury.
On the other hand, a nuisance is permanent if "the operation is done with due care considering the use thereof, and it is not contemplated that any change in operation will be made. . . ." Clabo, 121 S.W.3d at 672 (quoting Butcher v. Jefferson City CabinetCo., 437 S.W.2d 256, 259 (Tenn.Ct.App. 1968)). A proper classification of the nuisance, either temporary or permanent, must be made in order to analyze a statute of limitations defense.
If, on the other hand, "the operation is done with due care considering the use thereof, and it is not contemplated that any change in operation will be made, the damage is permanent and the proper measure of damage is the injury to the fee." Butcher v. Jefferson CityCabinet Co., 59 Tenn. App. 59, 437 S.W.2d 256, 259 (Tenn.Ct.App. 1968) (emphasis in original).Clabo v. Great Am. Resorts, Inc., 121 S.W.3d 668, 671-72 (Tenn.Ct.App. 2003).
If, on the other hand, "the operation is done with due care considering the use thereof, and it is not contemplated that any change in operation will be made, the damage is permanent and the proper measure of damage is the injury to the fee." Butcher v. Jefferson City Cabinet Co., 59 Tenn. App. 59, 437 S.W.2d 256, 259 (1968) (emphasis in original).Clabo v. Great American Resorts, Inc., 121 S.W.3d 668, 671-72 (Tenn.Ct.App. 2003).
If, on the other hand, "the operation is done with due care considering the use thereof, and it is not contemplated that any change in operation will be made, the damage is permanent and the proper measure of damage is the injury to the fee." Butcher v. Jefferson City Cabinet Co., 437 S.W.2d 256, 259 (Tenn.Ct.App. 1968) (emphasis in original). Defendant claims the nuisance is temporary because the damage to the roadway can be fixed given the expenditure of labor or money. Defendant's brief argues Plaintiffs' expert engineer and Plaintiffs' expert appraiser both testified the damage to the slide could be repaired.
The proper measure of these damages is the amount of depreciation in the market value of the injured realty. Bennett v. Cumberland Hardwoods, Inc., No. 01-A-019111CH00419, 1992 WL 135808, at *5 (Tenn.Ct.App. June 19, 1992) (citing Butcher v. JeffersonCity Cabinet Co., 59 Tenn. App. 59, 67, 437 S.W.2d 256, 259 (1968)). A temporary nuisance, in contrast, is one "that can be corrected by the expenditure of labor or money."