Wilson v. Farmers Chemical Association ( 1969 )

ON PETITION TO REHEAR

Farmers Chemical Association, Incorporated, has filed a petition to rehear complaining of the allowance of $15,000.00 for siltation of the Bay.

The basis of this insistence is that in selling lots complainants required each purchaser to deposit $100.00 with Trustees, to be used in the removal of silt from the Bay to the level of 668 feet above sea level as required by complainants’ deed from T.V.A. We do not find where the Chancellor was asked to make any finding on this issue.

The agreement of each lot owner to pay $100.00 for this purpose and to remain liable for future assessments seems to us to contemplate only the removal of silt resulting from natural causes and not for deposits caused by the tortious act of third persons.

But, however that may be, we perceive no basis for the interposition of this contribution on the part of lot owners as a defense by defendant, a stranger to the agreement. Reduced to the ultimate, the lot owners merely agreed to aid complainants to the extent shown in discharging their obligation to T.Y. A. to keep the Bay dredged, both during and after completion of the development. Complainants remain and will continue to be liable to T.Y.A. under this covenant in their deed. In addition, as pointed out in the reply to the Petition to Rehear complainants have a right to sue at common law for the damages caused by the nuisance and there is no showing the recovery allowed by the Chancellor covered damages to property not owned by complainants when the bill was filed.

Accordingly, we must overrule and dismiss the Petition to Rehear at Petitioner’s cost.

Cooper and Parrott, JJ., concur.