OPINION
Respondents, Joel Vradenburg and wife, Donna Vradenburg, filed an action in the Chancery Court of Cheatham Cоunty in an effort to have that court enjoin the petitioner, Pleasant View Utility District, from discharging waste water onto respondents’ land. The respondents charged that the water does not drain properly, creating a swampy area which is a breeding ground for mosquitos and bacteria, and that the waste watеr pollutes the fish pond which respondents constructed on their land.
In the course of pleading, petitioner moved to dismiss the action,
The chancellor, noting the marked similarity between the fаctual situation set forth in Murphy v. Raleigh Utility District,
The Court of Appeals reversеd the chancellor’s decree and remanded the case for trial and for a determination оf whether respondents were entitled either to injunc-tive relief or to damages. In doing so, the court сoncluded “that the petition herein is not a suit for damages in reverse condemnation [but] is primarily an injunсtion suit praying for injunctive and general relief.” The court then reasoned that chancery court having taken jurisdiction for injunc-tive process, had jurisdiction to decide all issues.
The efficacy of the mаxim of equity voiced by the Court of Appeals is unquestioned, but is not pertinent under our view of the case. Basically, we disagree with the Court of Appeals as to the nature of the suit. Though couched in terms of а nuisance, respondents seek to enjoin an act by petitioner which, in our opinion, is an act of “taking” an interest in real property.
Setting the factual background for the suit, it is undisputed that petitioner is a utility district vested with eminent domain powers. See T.C.A. §§ 6-2601 through 6-2636. In 1964 petitioner constructed a water purification and chlorination facility and a water storage tank on land it had purchased for that purpose. Acсording to affidavits filed in support of the motion to dismiss, which were considered by the trial court by consent оf the parties, the operation of the water purification facility required that petitioner flush the filtration system at least once every three days. From the outset, the thousands of gallons of water usеd to flush the system were discharged across land adjoining the water filtration plant.
In 1974, the respondents purсhased the land over which petitioner was discharging its waste water, built a lake on the property, аnd then brought the present action to enjoin the utility district from discharging water across respondents’ land and into the newly created lake.
Having the power of eminent domain, any action of petitionеr, in carrying out the purposes for which it was created, which destroys, interrupts, or interferes with the commоn and necessary use of real property of another is a “taking” of such property, and the lаndowner’s remedy is an action for damages under the inverse condemnation statute (T.C.A. § 23-1423), not injunctive reliеf; and, the action for damages is subject to the one year time limitation set forth in T.C.A. § 23-1424. See Monday v. Knox County,
T.C.A. §§ 23-1423 and 23-1424 apply even in the casеs where there is no actual entry upon the land. Jones v. Hamilton County, supra; Morgan County v. Neff,
There is no question in this casе but that throughout the ten year period immediately preceding the filing of this suit, the petitioner intentionally, regularly, and necessarily discharged a large volume of water onto and across the land now owned by respondents. This action of the petitioner was a “taking of a flowage easement”
The judgment of the court of Appeals is reversed. The decree of the chancellor is аffirmed. Costs incident to the appeal are adjudged against respondents’ and their surety.
Notes
. The motion to dismiss, being supported by affidavits presenting matters outside the pleadings, must be treated as a motion for summary judgment. See Tennessee Rules of Civil Procedure 12.03.