Williams v. M. C. West Construction Co.

579 S.W.2d 883, 1978 Tenn. App. LEXIS 345
CourtCourt of Appeals of Tennessee
DecidedDecember 18, 1978
StatusPublished
Cited by2 cases

This text of 579 S.W.2d 883 (Williams v. M. C. West Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. M. C. West Construction Co., 579 S.W.2d 883, 1978 Tenn. App. LEXIS 345 (Tenn. Ct. App. 1978).

Opinion

EWELL, Judge.

On February 6,1976, Mildred P. Williams, plaintiff-appellant property owner, filed suit in the Chancery Court of Hickman County, Tennessee, against defendants-ap-pellees, Hooker Chemical Company, owner of mineral rights in land situated near plaintiff’s land, and M. C. West Construction Company, independent contracting company employed by Hooker to remove phosphate from said land. Plaintiff insisted that the actions of the defendants, related to the mining operations, had resulted in damage to her land and sought either in-junctive relief whereby the Court would order defendants to restore her property to as good a condition as it was prior to the alleged damage or, in the alternative, judgment in the amount of $15,000.00 for damages to her property resulting from the acts of the defendants. The case was heard by Chancellor Alex W. Darnell who found for the defendants and dismissed plaintiff’s complaint. The relevant facts are set forth in the Chancellor’s Opinion filed in the case as follows:

“The plaintiff owns a 12 acre tract on a secondary road in Hickman County, Tennessee. This property is bordered on the south by a small creek; and the creek passes under the road at the west (sic: east) end of Plaintiff’s property. On the north side of this same road there is one-third of an acre belonging to the Plaintiff.
“Beginning in 1972 and over a period following about two years the Defendants removed phosphate from the property on the north side of this secondary road. The actual mining was done by the defendant M. C. West Construction Company. The Plaintiff testified that after the removal of the phosphate began her spring dried up; and the water which she took from her well became muddy (reddish color), in August of 1973. She further testified that because of the ore and dirt removal that water was caused to run across the one-third acre on the north side of the road, causing portions of the one-third acre to be washed away.
“The defendant M. C. West widened this small road adjacent to Plaintiff to two lanes, raised the grade by two or three feet, and replaced the wooden bridge with a culvert. The metal culvert used in place of the bridge was furnished by the Hickman County Highway Department, and the county employees connected the parts of the culvert at the site and fixed the struts on the interior in order for M. C. West employees to make the fill. Prior to widening the road the Plaintiff’s deceased husband agreed to give 8-10 feet of his property for that purpose. The Plaintiff never agreed to this and did not talk to anyone about it. During the course of the road widening M. C. West’s employees filled a ditch on Plaintiff’s property, placed some fence on her property, and modified her driveway leading to the road.
“The Plaintiff claimed that changing the creek crossing from a wooden bridge to a culvert and raising the grade some three feet causing water to back up on her property and especially over her pump (at the corner of the bam) during heavy rains. She stated that approximately one-half acre of her property was covered by water, which had not been the [886]*886case before the culvert was put in. She also stated that rocks from the widening of the road are tearing up her fence and that the change in the grade and washing effects keeps her from getting on to her one-third acre across the road.
“All the damages claimed by the Plaintiff were caused (according to her testimony) either by the removal of the phosphate ore on the land across the road from her property, i. e., spring dried up and well water became muddy; or by the change in the road grade, i. e. one-half acre is flooding and the pump at the barn is flooded.
“All of the road changes were made during the life of Plaintiff’s husband. The two of them owned the property as tenants by the entirety. Some of the changes were made with permission of the plaintiff’s deceased husband. All were made in full view and in the presence of the then joint owners; and no objection or criticism was raised.
“The Court is then of the opinion that some of the damages complained of was work requested by one of the then owners of the property. As to the rise in the water level after the culvert was placed in, the preponderance of the evidence does not show that the water levels over Plaintiff’s property, after heavy rain, was materially changed.
“It is not enough to prove that after one act occurred (phosphate ore removal) another happened (spring dried up— water became muddy) and that the proximity of the two acts (a few hundred feet) is the causal connection from which damages may be assessed. The Plaintiff must show the causal connection between these acts before a court may assess damages against defendants.
“Wherefore, this action against each and all the defendants and upon all counts is hereby dismissed.”

Plaintiff appealed and assigned as error the action of the Trial Court in:

(1)holding that the plaintiff was barred from recovery from the changes and alterations in the road because the plaintiff’s husband gave permission for the changes to be made, and they were made in the presence of both the plaintiff and her husband without objection or criticism;
(2) holding that the flooding of plaintiff’s property was not substantially or materially increased because of the defendant’s work on the road;
(3) holding that there was no causal connection between the mining done by the defendant and the damage to plaintiff’s well and spring; and,
(4) disallowing evidence that the damage to plaintiff’s property from defendant’s action amounted to thirty to forty percent of its value.

The entire record in this case has been reviewed de novo as required by T.C.A. 27-303, and it is our opinion that the evidence does not preponderate against the holding of the lower court. The case comes to us with a presumption of the correctness of the decree of the court below and unless the evidence preponderates against that holding, it must be affirmed. Edwards v. Edwards, 501 S.W.2d 283 (Tenn.App.1973); Davis v. Bank of Illinois, 561 S.W.2d 145 (Tenn.1978); Pettyjohn v. Brown Boveri Corporation, 63 Tenn.App. 546, 476 S.W.2d 268 (1971); Tipton County Board of Education v. Dennis, 561 S.W.2d 148 (Tenn.1978).

We find that the Chancellor did not specifically hold as alleged by plaintiff in her first assignment of error. He did find that some of the work complained of was done at the request of or with the permission of plaintiff’s deceased husband; that all such work was done in the full view and presence of both joint owners; and that no objection or criticism was raised. The proof in the record clearly supports these findings.

The second assignment of error relates to the holding of the Chancellor with respect to the affect on plaintiff’s property resulting from the changes and alterations in the [887]*887road.

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Bluebook (online)
579 S.W.2d 883, 1978 Tenn. App. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-m-c-west-construction-co-tennctapp-1978.