Table of Contents


Chapter One—Scope of the Power of Eminent Domain
Introduction
Eminent Domain vs. Police Power
Eminent Domain vs. Accidental or Negligent Acts
Eminent Domain for Industrial Parks

Chapter Two—Condemnation Procedures
Introduction
Jury of View Procedure
Petition for Condemnation
Deposit and Appraisal
Notice
Writ of Inquiry
Selection of the Jury of View
View and Report
Exceptions and Appeal
Nonsuit
Supplementary Procedure
Petition for Condemnation
Notice
Deposit and Appraisal
Default
Acceptance
Exception and Trial
Nonsuit

Chapter Three—The Right to Take
Introduction
Authority
Public Use
Narrow vs. Broad View
Public vs. Private Condemner
Property Devoted to Public Use
Necessity
Condemnation for Future Needs
Procedural Issues

Chapter Four—Just Compensation
Introduction
Establishing Fair Market Value
Comparable Sales
Opinions as to Value
Incidental Damages
Incidental Benefits
Procedural Issues
Interest

Chapter Five—Inverse Condemnation
Introduction
Physical Takings
Impairment of Easements of Access and Way
Water Damage
Aircraft Overflights
Takings Prior to Condemnation
Additional Takings
Regulatory Takings
Exactions
Ripeness
Measure of Damages
Statute of Limitations
Attorney, Engineer, and Appraisal Fees

Chapter Six—Leasehold Damages
Introduction
Valuation of the Leasehold
Apportionment
Appeal

Chapter Seven—The Uniform Relocation Assistance and
Real Property Acquisition Acts
Introduction
Appraisal Procedure

Chapter Eight—Forms
Petition for Condemnation
Service by Sheriff
Service by Mail
Motion for Notice by Publication
Affidavit of City Attorney
Order of Publication
Order of Possession
Order Sustaining Petition for Condemnation and Ordering Writ of Inquiry
Writ of Inquiry
Report of the Jury of View
Order Confirming Report of the Jury of View
Appeal from Finding of the Jury of View
Notice of Dismissal
Order of Dismissal
Agreed Final Order
Pre-Trial Checklist
Post-Trial Checklist

Chapter One
Scope of the Power of Eminent Domain

Introduction
Eminent domain is the right or power of the sovereign to take private property for the public use; to take ownership and possession thereof upon payment of just compensation to the owner of the property.¹ It is an inherent power of a sovereign, which is without limitation or restriction, except for the constitutional limitations that private property must be taken for a public use,² and the owner of such property must be paid just compensation for the property.³ The legislature has adopted a definition of “public use” codified in T.C.A. § 29-17-102 that precludes private use or benefit or the indirect public benefits resulting from private economic development and private commercial enterprise, including increased tax revenue and employment opportunities. The statute then provides these exceptions: (1) acquisition of land for transportation projects, (2) acquisition of land necessary to the function of a utility, (3) acquisition of property by a housing authority or community development agency for redevelopment in blighted areas, (4) private uses merely incidental to public use, and (5) acquisition of property for an industrial park under T.C.A. Title 13, Chapter 16, Part 2. The General Assembly enacted these restrictions and exceptions in response to the U.S. Supreme Court case of Kelo v. City of New London, 126 S. Ct. 326 (2005). Although the power of eminent domain is an inherent power of the sovereign, it lies dormant until the legislature declares the purpose for which it may be exercised and the agencies that may use the power.⁴ The power of eminent domain may be exercised directly by the legislature by the adoption of a statute identifying the particular property to be acquired for a public use, or it may be delegated to agents who may exercise the power in the manner prescribed in the enabling statute.⁵

The power of eminent domain has been delegated to counties, (T.C.A. §§ 29-17-101; 29-17-801),⁶ and municipalities, (T.C.A. §§ 29-17-201; 29-17-801)⁷. It has been generally delegated to any person or corporation authorized by law to construct railroads, turnpikes, canals, toll bridges, roads, causeways, or other work of internal improvement. T.C.A. § 29-16-101.⁸ The General Assembly has also delegated the power of eminent domain to the following:⁹

Airport authorities (T.C.A. §§ 42-3-108–42-3-109; 42-3-204)
Beech River Watershed Development Authority (T.C.A. § 64-1-102)
Bridge companies (T.C.A. § 54-13-208)
Carrol County Watershed Authority (T.C.A. § 64-1-805)
Coast and geodetic surveys (T.C.A. § 29-17-501)
Counties—Airports (T.C.A. § 42-5-103)
Counties—Electric plants (T.C.A. § 7-52-105)
Counties—Controlled access highways (T.C.A. § 54-16-104)
Counties—Industrial parks (T.C.A. § 13-16-203)
Counties—Levees (T.C.A. § 69-5-105)
Counties—Public transportation systems (T.C.A. § 7-56-106)
Counties—Public works projects (T.C.A. § 9-21-107)
Counties—Railroad systems (T.C.A. § 7-56-207)
Counties—Recreational land (T.C.A. § 11-24-102)
Counties—Roads (T.C.A. §§ 29-17-801 et seq.; 54-10-205)
Counties—Schools (T.C.A. §§ 49-6-2001 et seq.)
Counties—Solid waste sites (T.C.A. § 68-211-919)
Counties— for the West Tennessee River Basin Authority (T.C.A. § 64-1-1103(14))
Drainage and levee districts (T.C.A. §§ 29-17-801 et seq.; 69-6-201 et seq.)
Electric power districts (T.C.A. §§ 7-83-303; 7-83-305)
Hospitals (T.C.A. § 29-16-126) (T.C.A. in certain counties)
Housing authorities (T.C.A. §§ 13-20-104; 13-20-108–13-20-109; 13-20-212; 29-17-401 et seq.)
Light, power , and heat companies (T.C.A. § 65-22-101)
Metropolitan governments —Energy production facilities (T.C.A. § 7-54-103)
Metropolitan governments —Port authorities (T.C.A. § 7-5-108)
Metropolitan hospital authorities (T.C.A. § 7-57-305)
Mill Creek Flood Control Authority (T.C.A. § 64-3-104)
Municipalities—Airports (T.C.A. § 42-5-103)
Municipalities—City Manager - Commission (T.C.A. § 6-19-101)
Municipalities—Controlled access highways (T.C.A. § 54-16-104)
Municipalities—Drainage ditches (T.C.A. § 7-35-101)
Municipalities—Electric plants (T.C.A. § 7-52-105)
Municipalities—Gas systems (T.C.A. § 7-39-303)
Municipalities—Industrial parks (T.C.A. § 13-16-203)
Municipalities—Mayor - Aldermanic (T.C.A. § 6-2-201)
Municipalities—Modified City Manager (T.C.A. § 6-33-101)
Municipalities—Parks (T.C.A. §§ 7-31-107 et seq.)
Municipalities—Public transportation systems (T.C.A. § 7-56-106)
Municipalities—Public works projects (T.C.A. § 9-21-107)
Municipalities—Railroad systems (T.C.A. § 7-56-207)
Municipalities—Recreational systems (T.C.A. § 11-24-102)
Municipalities—Schools (T.C.A. §§ 49-6-2001 et seq.)
Municipalities—Sewers (T.C.A. § 7-35-101)
Municipalities—Slum clearance (T.C.A. §§ 13-21-204; 13-21-206) (T.C.A. in certain counties)
Municipalities—Solid waste sites (T.C.A. § 68-211-919)
Municipalities—Streets (T.C.A. §§ 7-31-107 et seq.)
Municipalities—Utilities (T.C.A. § 7-34-101)
Municipalities—Water systems (T.C.A. § 7-35-101)
Municipalities— For the West Tennessee River Basin Authority (T.C.A. § 64-1-1103(14))
North Central Tennessee Railroad Authority (T.C.A. § 64-2-507)
Pipeline companies (T.C.A. § 65-28-101)
Private roads (T.C.A. § 54-14-101 et seq.)
Railroads (T.C.A. §§ 65-6-109; 65-6-123)
Railroads—Branch lines (T.C.A. § 65-6-126 et seq.)
Railroads—Interurban railroads (T.C.A. § 65-16-119)
Road improvement districts (T.C.A. § 54-12-152)
Solid waste authorities (T.C.A. § 68-211-908)
State Department of Environment and Conservation (T.C.A. §§ 11-1-105; 11-3-105; 11-14-110; 59-8-215)
State Department of Transportation (T.C.A. §§ 29-17-801 et seq.; 54-5-104; 54-5-208; 54-16-104)
State military affairs (T.C.A. §§ 58-1-501 et seq.)
State water and sewer facilities (T.C.A. § 12-1-109)
Telegraph companies (T.C.A. § 65-21-204)
Telephone companies (T.C.A. § 65-21-204)
Telephone cooperatives (T.C.A. §§ 65-29-104; 65-29-125)
Tri-County Railroad Authority (T.C.A. § 64-2-307)
University of Tennessee (T.C.A. § 29-17-301)
Utility districts (T.C.A. § 7-82-305)
Water companies (T.C.A. §§ 65-27-101 et seq.)
Water and wastewater authorities (T.C.A. § 68-221-610)

Such grants of the power of eminent domain are in derogation of private property rights and will be strictly construed against the condemners and liberally in favor of the property owners.¹⁰ The General Assembly in T.C.A. § 29-17-101 expresses its intent that the power of eminent domain be used sparingly and that the laws permitting this exercise of the power be narrowly construed. The condemner‘s right to take property will be denied if the condemner has failed to follow the procedures set forth in the statutes that authorize exercise of the power of eminent domain.¹¹ Also, the condemner will be precluded from acquiring a greater interest in property than is authorized by statute.¹²

T.C.A. § 68-211-122 prohibits the use by a municipality of the power of eminent domain to establish a solid waste landfill outside its corporate boundaries unless this is approved by the governing body of the area in which the landfill is to be located. This approval must be given by a majority vote at two (2) consecutive regularly scheduled meetings.

Eminent Domain vs. Police Power
The power of eminent domain, or the power to acquire private property for a public use, can generally be distinguished from the police power, which is the power to adopt regulations to promote the public health, safety, and welfare of a community, even though the exercise of either power may impair the fair market value of private property.¹³ Where the impairment of value results from the exercise of the police power, courts traditionally find that the loss is not subject to the just compensation requirements of the United States and Tennessee Constitutions.¹⁴ Thus, claims for compensation have been denied where the value of property has been impaired as the result of the imposition of housing regulations;¹⁵ the imposition of zoning regulations;¹⁶ the imposition of utility rate regulations;¹⁷ the change in streets abutting property from two-way streets to one-way streets;¹⁸ or inconvenience, noise, and dirt from construction of a public improvement that interfered with the use of property;¹⁹ and in an annexation in which a city annexed the service area of private trash haulers. ²⁰

This theoretical distinction becomes blurred when the police power regulation impairs the value or use of private property to such an extent that no beneficial use of the property remains.²¹ These instances have become more common as local governments have imposed land use regulations upon private property instead of using limited public funds to acquire private property for public use. This problem was first addressed in Pennsylvania Coal Co. v. Mahon,²² where Justice Holmes held that “while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking...(as)... a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

This holding has been applied in Tennessee to a zoning regulation that deprived the owner of the beneficial use of the property.²³ Where such a “regulatory taking” occurs, the property owner is entitled to recover “just compensation” for the taking, not just the invalidation of the regulation that resulted in the taking.²⁴ These issues will be discussed in further detail in chapter five.

Eminent Domain vs. Accidental or Negligent Acts
A governmental defendant must perform a purposeful or intentional act for a taking to exist, and a taking will not result from unavoidable incidents or negligent acts. ²⁵ See T.C.A. § 29-16-127.

Eminent Domain for Industrial Parks
A municipality may exercise the power of eminent domain to develop an industrial park only with respect to property located within its boundaries or in an urban growth boundary. A municipality or county, or both, operating a joint park may exercise the power of eminent domain for development of the park within the boundaries of the county and within an urban growth boundary and a planned growth area. A municipality must obtain a certificate of public purpose and necessity from the Department of Economic and Community Development for the exercise of the power of eminent domain even if no funds will be borrowed. The certificate must be based upon a finding that the municipality was unable to acquire the property through good faith negotiations or to acquire any alternative property of comparable suitability. Good faith negotiations are established if the municipality made an offer to purchase the property for an amount equal to or greater than the fair market value determined by the average of at least two appraisals by independent qualified appraisers. T.C.A. § 13-16-207(f).

Chapter Two
Condemnation Procedures

Introduction
There are a variety of condemnation procedures that have been established for municipalities and counties,¹ but those used most commonly are the traditional “jury of view” procedure, T.C.A. §§ 29-16-101 et seq., and the supplementary procedure. T.C.A. §§ 29-17-901 et seq. These statutory provisions normally permit the condemner to select the procedure of its choice from the available options.² This manual will discuss only the traditional “jury of view” procedure and the supplementary procedure, since the same principles generally are applicable to the other procedural schemes available to counties and municipalities.

T.C.A. § 6-54-122 establishes special procedures to be followed by a municipality in taking unincorporT.C.A. § 6-54-122 establishes special procedures to be followed by a municipality in taking unincorporated property in any county in which the municipality was not located before May 1, 1995. The municipality must notify the county in writing, and the county must approve the taking. The county’s disapproval may not be arbitrary or capricious and may be reviewed by statutory writ of certiorari. These provisions do not apply to takings necessary to provide utility service, certain takings by metropolitan governments, or takings relative to airports or projects sponsored jointly by a municipality and a county.

The condemner seeking to acquire an interest under the power of eminent domain must first file a lawsuit to accomplish this objective. In the lawsuit, the court will be presented with two issues: (1) whether the condemner has the right to take the property,³ and (2) the amount of just compensation to which the property owner is entitled.⁴

Under the “jury of view” and the supplementary procedures, the condemnation action must be filed in the circuit court in which the property is located. T.C.A. §§ 29-16-104; 29-17-902. Thus, the circuit court has exclusive jurisdiction over eminent domain proceedings.⁵ Once condemnation proceedings have been filed in the circuit court, the court may resolve matters that are incidental to the condemnation case, such as contract⁶ or boundary⁷ disputes involving the condemned property. The only exception to this rule involves cases that were properly brought in chancery court to obtain injunctions or other equitable relief.⁸ The chancery court has been found to have jurisdiction to award appropriate relief under the eminent domain statutes in cases that were initially brought to obtain injunctive relief,⁹ to void a contract,¹⁰ or to reform a deed.¹¹

Jury of View Procedure
The jury of view procedure requires the condemner to initiate the condemnation action by filing a petition for condemnation in the circuit court and giving the property owner 30 days notice of the proceedings. T.C.A. §§ 29-16-104 thru 105 and 29-17-104. The circuit court then appoints a jury of view to examine the property to be condemned and determine the amount of just compensation to which the property owner is entitled. T.C.A. §§ 29-16-107 thru 113. The jury of view will then file its report with the court. The report may be confirmed or it may be excepted to and/or appealed by one or both parties that have objections to the report. T.C.A. § 29-16-115 thru 118.

If the report is confirmed, an order will be entered conveying the property to the condemner upon payment to the property owner of the amount of just compensation set by the jury of view. T.C.A. § 29-16-116. If an exception is filed, the court may, upon a showing of good cause, appoint a new jury of view. T.C.A. § 29-16-117. If an appeal is filed to the report, the circuit court conducts a trial de novo before a petit jury. T.C.A. § 29-16-118.

Petition for Condemnation
The petition for condemnation must be filed in the county in which the property is located. T.C.A. § 29-16-104. The petition must name as defendants all parties having any interest in any way in the property being acquired. T.C.A. § 29-16-106. All parties must be named as defendants for the condemnation proceedings to bind the parties, with the exception of unborn remaindermen, who are bound if all living parties in interest are parties. T.C.A. § 29-16-106.¹² Thus, to obtain clear title to the property, the condemner should name as defendants the spouse of the property owner,¹³ any person owning a life estate or reversionary or remainder interest in the property,¹⁴ any lessee of the property,¹⁵ any holder of a recorded mortgage,¹⁶ and any holder of any other interest in the property, including a purchase contract of which the condemner is aware.¹⁷ The name and residence addresses of all defendants, if known, should be listed in the petition, and if the name or address is unknown, that fact should be stated in the petition. T.C.A. § 29-16-104.

The body of the petition for condemnation should set forth the statute, private act, or charter provision giving the condemner the general power to acquire property by eminent domain and should cite the jury of view statutes as the specific statutory procedure being used by the condemner to acquire the property in question.¹⁸ The petition should also identify the specific ordinance or resolution of the county or municipal legislative body authorizing the acquisition of the property under the power of eminent domain.

The nature of the project for which the property is being acquired should be described.
T.C.A. § 29-16-104. The petition should recite that the project is for a public use, is in the public interest, and that the acquisition of the property is necessary to complete the project.¹⁹ The particular interest in the property, either a fee interest or an easement, should be identified. T.C.A. § 29-16-104. An accurate legal description of the property should be included, along with a corresponding map or plat attached as an exhibit if available. T.C.A. § 29-16-104.²⁰ Also, any known encumbrances upon the property should be specified. Finally, the petition should contain a prayer that a copy of the petition be served on the defendants and a suitable portion of the land or the rights of the defendants be awarded to the condemner. T.C.A. § 29-16-104.

Deposit and Appraisal
The condemner using the jury of view procedure must deposit with the clerk of the court at the time the petition is filed the amount determined by its appraisal as the amount the property owner is entitled to for the property being acquired. T.C.A. § 29-17-701. The appraisal must value the property considering its highest and best use, its use at the time of the taking, and any other uses to which the property is legally adaptable at the time of the taking. The appraiser must be a Member of the Appraisal Institute (MAI) or an otherwise licensed and qualified appraiser. T.C.A. § 29-17-1004. The statute requires interest to be paid only on the amount of an award exceeding the deposit. T.C.A. § 29-17-701. Thus, the statute provides the condemner with a mechanism to avoid the payment of interest on the amount deposited.²¹

The condemner should make a good faith estimate of the damages and expenses the property owner will likely incur when it determines the amount to deposit.²² The amount of the deposit should be specified in the condemnation petition. The amount of the deposit is not relevant to the trial,²³ and the condemner can offer proof that the property is of lesser value.²⁴

Notice
Notice of the filing of the condemnation petition must be given to each respondent at least 30 days before the taking of any additional steps. T.C.A. § 29-17-104. If the defendant’s name or address is unknown, or if he or she is not a resident of the state, notice should be given as for suits in chancery court. T.C.A. § 29-17-104.²⁵ Although notice by publication is also authorized for non-residents of the state, the due process clause of the Fourteenth Amendment to the United States Constitution requires more than notice by publication when the name and address of a non-resident defendant are known or very easily ascertainable.²⁶ The notice should advise the defendant of the filing of the petition and the date scheduled for presenting the petition to the court for issuance of the writ of inquiry.²⁷

The notice of the filing of the petition is in lieu of the summons that is normally issued in civil actions.²⁸ The manner of service of the notice is not specified in the applicable statutes; however, Rule 71 of the Tennessee Rules of Civil Procedure provides that those rules will be applicable to the extent they are not in conflict with or do not contradict or contravene the provisions of the applicable statutes. Therefore, service of the notice, accompanied by a copy of the petition for condemnation, can be accomplished in any manner authorized by Rule 4 of the Tennessee Rules of Civil Procedure. A return of the notice, like a return of a summons, should be completed in compliance with Rule 4.03 of the Tennessee Rules of Civil Procedure.

If the right to take has not been challenged within 30 days after the giving of notice, the condemner may take possession of the property. If the right to take is challenged, the court must promptly determine as a matter of law whether there is a right to take. If the court determines there is a right to take, it must issue a writ of possessions if necessary. T.C.A. § 29-17-104.

Writ of Inquiry
At the time the petition is presented to the court for the issuance of the writ of inquiry, which cannot occur until 30 days after the defendant has been given notice of the filing of the petition, the condemner should submit a motion to sustain the condemner’s right to take the property under the power of eminent domain. This motion asks the court to issue the writ of inquiry and fix a time and place for the inquest. Any challenge to the condemner’s right to take must be asserted at this stage of the proceedings.²⁹

If no challenge to the condemner’s right to take is made, the court will sustain the condemnation proceedings and order the issuance of the writ of inquiry of damages. T.C.A. § 29-16-107. This order should recite that:
· The petition for condemnation has been properly filed and notice given to the defendants;
· The condemner has the right to acquire the property as disclosed in the order;
· The clerk should issue a writ of inquiry to appear on a fixed date and place and that no further notice will be given;
· Upon selection of the jury of view the jury will proceed to the property, examine it, and hear testimony of witnesses, but no argument of counsel, and will set apart by metes and bounds the property to be condemned and assess the damages as required by law; and
· That the jury of view will reduce its report to writing and deliver it to the sheriff, who will return it to the court.³⁰

If the defendant challenges the condemner’s right to take, the court must first resolve this challenge before it may order issuance of the writ of inquiry. T.C.A. § 29-16-107.³¹ If the court finds that the condemner has the right to take the property, it will sustain the condemnation proceedings and order issuance of the writ of inquiry of damages. T.C.A. § 29-16-107. The order directing the issuance of the writ of inquiry is not a final order and, therefore, is not appealable.³²

The writ of inquiry is issued by the clerk and directed to the sheriff, commanding him to summon a panel of jurors to appear on a fixed date and place. T.C.A. § 29-16-107.³³ The sheriff thereafter summons a panel from 12 to 15 potential jurors from which the jury of view will be selected. The sheriff should return the writ to the clerk of court, specifying the names of the persons on whom the writ of inquiry was served.³⁴

Selection of the Jury of View
The jury of view will consist of five persons, unless the parties agree to a different number. T.C.A. § 29-16-108. The jurors must possess the same qualifications as jurors in other civil cases, with the additional qualification that no members of the jury of view may have an interest in a similar case. T.C.A. § 29-16-109. The jurors may be challenged for cause or peremptorily as in any other civil case. T.C.A. § 29-16-108. In the instance where the name of the juror is selected by the court and the juror is unable to attend, the sheriff will select a replacement. T.C.A. § 29-16-110.

View and Report
If the date has not been set by the court, the sheriff must give the parties three days’ notice of the time and place of the inquiry. T.C.A. § 29-16-111.³⁵ On the date and time specified, the jury will be selected (if the names of the jurors are not specified by the court or the parties) and sworn to fairly and impartially, without favor or affectation, and will lay off by metes and bounds the property required for the proposed improvement to assess the damages to the landowner. T.C.A. § 29-16-112.

The jury may then receive brief instructions from the court on its duties, which are to go onto the property, to examine it, to hear testimony of witnesses but no arguments of counsel, to assess the damages, and to prepare a report in writing and deliver it to the sheriff.³⁶ The jury of view will then be placed in the charge of the sheriff and will proceed to examine the property. T.C.A. § 29-16-113. The parties and their counsel may accompany the jury of view to the property and put on evidence as to its value, but counsel are not permitted to make arguments to the jury of view. T.C.A. § 29-16-113.³⁷ After the investigation of the property and the testimony have been completed, the jury of view must identify by metes and bounds the property required for the proposed project and must assess damages to the landowner according to the principles discussed in chapter four. T.C.A. § 29-16-113. The decision of the jury of view may be a majority instead of a unanimous decision. T.C.A. § 29-16-115.³⁸ The decision should be reduced to writing, and the report must include a legal description of the property and the amount of the award and be signed by a majority of the jurors.³⁹

The report should be delivered to the sheriff who returns the report to the court. T.C.A. § 29-16-115. If the parties do not object to the report, it is confirmed by the court upon motion by the condemner.⁴⁰ The court then enters an order confirming the report. T.C.A. § 29-16-116. This order should incorporate the report of the jury of view, should order that the property be divested from defendants and vested in the condemner, and further order that the condemner pay the defendants the amount specified in the report.⁴¹ The order should also specifically provide for the issuance of a writ of possession to put the condemner in possession, if necessary.⁴²

If there is no dispute as to the proper distribution of the funds to defendants, the order should specify this distribution; otherwise, the court must retain jurisdiction to permit the defendants to present proof on their respective interests and the proper disposition of the award.⁴³ This order should also adjudge the costs of the case (normally against condemner) and provide for payment of the members of the jury of view.⁴⁴ The maximum amount of this payment is specified at T.C.A. § 29-16-125.

Exceptions and Appeal
Either party may file exceptions to the report of the jury of view, and for good cause shown, the court may set aside the report of the jury of view and issue a new writ of inquiry for a new jury of view. T.C.A. § 29-16-117. Exceptions to the report of the jury of view should be directed toward some irregularity in the proceedings, misconduct of the jury of view, or where the report is founded on erroneous principles.⁴⁵ The court considers the exceptions based on the proof in the record; therefore, an exception on the grounds of inadequacy of the damages would normally be insufficient.⁴⁶ Although no time period is specified for filing exceptions, the appeal from the report of the jury of view must follow the disposition of the exceptions,⁴⁷ and such an appeal must be filed within 45 days of the confirmation of the report of the jury of view. T.C.A. § 29-16-118. It is therefore conceivable that a court would find that exceptions must be filed and disposed of prior to the expiration of the 45-day period.

An appeal is the proper remedy if a party objects to the amount of damages awarded by the jury of view.⁴⁸ The remedies of exception and appeal are cumulative and successive.⁴⁹ A party may file an appeal regardless of whether exceptions have been filed.⁵⁰ Either party may file an appeal within 45 days of the entry of the order confirming the report of the jury of view, and upon giving security for costs obtain a trial de novo before a jury as in any civil case.
T.C.A. § 29-16-118.

The condemner who obtained possession under the order confirming the report of the jury of view⁵¹ may continue in possession upon filing of an appeal by posting a bond, payable to defendants, in double the amount of the award of the jury of view, conditioned upon the condemner’s compliance with the final judgment in the case. T.C.A. §§ 29-16-120; 29-16-122.⁵² Costs on appeal must be paid by the appealing party in all cases where the petit jury affirms the award of the jury of view or is more unfavorable to the appealing party. T.C.A. § 29-17-119. In all other cases the court may award costs as in other chancery cases. T.C.A. § 29-16-119.

Nonsuit
The condemner may take a voluntary nonsuit under Rule 41.01 of the Tennessee Rules of Civil Procedure in a condemnation case.⁵³ A nonsuit cannot be taken after the condemner has taken possession of the property following confirmation of the report of the jury of view, leaving nothing to be determined except the amount of compensation due the defendant.⁵⁴

Supplementary Procedure
The supplementary condemnation procedure set out in T.C.A. §§ 29-17-901 et seq., can be used by the state of Tennessee to acquire such right-of-way, land, material, easements, and rights as are necessary, suitable, or desirable for the construction, reconstruction, maintenance, repair, drainage, or protection of any street, road, freeway, or parkway. In addition to these purposes, municipalities and counties can use the supplementary procedure for any municipal or county purpose for which condemnation is otherwise authorized by any act of the Tennessee General Assembly, unless expressly stated to the contrary. T.C.A. § 29-17-901. Levee and drainage districts in certain counties also may use the supplementary procedure. T.C.A. § 29-17-901. The supplementary procedure may not be used by housing authorities since they are not counties or municipalities.⁵⁵

The supplementary procedure is a cumulative procedure for the exercise of eminent domain and should be construed in pari materia with the other eminent domain statutes.⁵⁶ This supplementary procedure was designed to protect the property owner by having the amount the condemner believes the property owner is entitled to deposited in court, and when that money has been deposited, to give the condemner the almost immediate right of possession.⁵⁷ This purpose, however, has been largely negated by statutory amendments requiring 30 days notice of filing the condemnation petitions in all eminent domain cases.

The supplementary procedure, like the jury of view procedure, requires the condemner to initiate the condemnation action by filing a petition for condemnation in the circuit court, accompanied by a deposit for the amount of damages the condemner believes the property owner is entitled to, and giving the property owner notice of the proceedings. T.C.A. §§ 29-17-902; 29-17-903. If the condemner is a municipality or county, any defendant may elect to use the jury of view procedure by filing a statement to that effect within five days of service upon the defendant. T.C.A. § 29-17-901.⁵⁸

If the condemner’s right to take is not questioned,⁵⁹ the condemner may take possession of the property 30 days after the notice has been given. T.C.A. § 29-17-903.⁶⁰ If the property owner is satisfied with the amount of the deposit, he or she may withdraw that amount from the court by filing a sworn statement stating that he or she is the owner of the property or property interests described in the petition for condemnation and that he or she accepts the deposit in full settlement for the taking of the property and all damages occasioned to the remainder thereof. T.C.A. § 29-17-904. The court will then enter an order divesting the property owner of title and vesting it in the condemner. T.C.A. § 29-17-904. If the property owner is dissatisfied with the deposit, he or she may file an exception to the amount deposited by the condemner, and a trial before a petit jury may be held on the amount of just compensation due the property owner. T.C.A. § 29-17-905.

Petition for Condemnation
Although the interests of the defendants need not be specified, the condemner may specify the interests of different defendants.⁶¹

If any person who is a proper party defendant is omitted from the petition for condemnation, the condemner may file amendments to add them. T.C.A. § 29-17-909.

Notice
As with the jury of view procedure, notice of the filing of the condemnation proceeding must be given to all defendants. T.C.A. § 29-17-903. This notice must be given at least 30 days before any additional steps are taken in the case by the condemner. T.C.A. § 29-17-903. The constitutional limitations on service by publication that were discussed under the jury of view procedure apply to the supplementary procedure. Service of the notice, accompanied by a copy of the petition for condemnation, can be accomplished in any manner authorized by the Tennessee Rules of Civil Procedure.

Deposit and Appraisal
The condemner must determine what it deems to be the amount due the property owner and deposit that amount when it files the petition for condemnation.⁶² This deposit should be a good faith estimate of damages and expenses the defendant will likely incur as the result of the condemnation.⁶³ Evidence of the amount deposited is irrelevant, however, if the condemnation goes to trial on the amount of damages. ^63A

The amount deposited must be based upon an appraisal. The appraisal must value the property considering its highest and best use, its use at the time of the taking, and any other use to which the property is legally adaptable at the time of the taking. The appraiser must be an MAI or an otherwise licensed and qualified appraiser. T.C.A. § 29-17-1004.

Default
If the property owner does not appear and accept the amount of the deposit or take exception to the amount of the deposit, the court can enter a default judgment against the property owner. The court will then hold a hearing upon the record and, in the absence of the property owner, determine the amount of just compensation to which the property owner is entitled.
T.C.A. § 29-17-907.

Acceptance
If the defendant is satisfied with the amount of the damages, he or she may file a sworn statement verifying that he or she is the owner of the property or property rights being condemned and that he or she accepts the deposit as a full settlement for the taking of the property and any incidental damages to the remainder of the property of the defendant. T.C.A. § 29-17-904. The court will thereafter enter a final judgment divesting the property owner of title and vesting title in the condemner. T.C.A. § 29-17-904. If the condemner identifies the amount of the deposit that should be allocated to the various defendants, a defendant may accept that amount in full settlement of his or her interest.⁶⁴

Exception and Trial
If the property owner is dissatisfied with the amount deposited, he or she may file an exception or answer on or before 30 days from the date of notice of filing the petition. T.C.A. §§ 29-17-905 and 29-17-105. The answer must be filed within 30 days of service of the notice. T.C.A. § 29-17-105.

If the property owner files an exception or answer to the amount deposited by the condemner, a trial may be held before the petit jury as in other civil cases. T.C.A. §§ 29-17-905 and 29-17-105. To obtain such a jury trial, the property owner should make a demand for a jury under Rule 38.02 of the If the property owner files an exception or answer to the amount deposited by the condemner, a trial may be held before the petit jury as in other civil cases. T.C.A. §§ 29-17-905 and 29-17-105. To obtain such a jury trial, the property owner should make a demand for a jury under Rule 38.02 of the Tennessee Rules of Civil Procedure, or file a motion for a jury trial under Rule 39.02 of the Tennessee Rules of Civil Procedure.⁶⁵ The trial will be limited to determining the amount of compensation to be paid to the defendant for the property or property rights taken. When adverse claims by multiple defendants are made for compensation, the court and jury must also resolve those claims. T.C.A. § 29-17-908.

The defendant who has filed an exception is entitled to withdraw, prior to trial, the amount deposited by the condemner without prejudice to the rights of either party. T.C.A. § 29-17-906.⁶⁶ To withdraw the deposit, the defendant must make a written request to the clerk in which he or she agrees to refund the difference between the amount of the deposit and the final award if the final award is less than the amount of the deposit. T.C.A. § 29-17-906.

If the final award is less than or equal to the amount of the deposit, the defendant must pay the costs of the trial. T.C.A. § 29-17-912. Rule 54.04 of the Tennessee Rules of Civil Procedure governs the taxing of any additional costs. In other cases, the condemner is responsible for paying the costs. T.C.A. § 29-17-912.

Nonsuit
As with the jury of view procedure, the condemner may take a voluntary nonsuit prior to obtaining possession of the defendant’s property.⁶⁷ However, if the condemner abandons the proceedings, the court may order the condemner to pay defendants for all reasonable costs, including reasonable attorney, appraisal, and engineering fees actually incurred because of the condemnation proceedings. T.C.A. §§ 29-17-912 and 29-17-106. An abandonment occurs when the condemner voluntarily gives up the intended condemnation or declines to carry the condemnation proceedings through to a conclusion.⁶⁸

Chapter Three
The Right to Take

Introduction
Condemnation cases are of a dual nature, the first part involving the determination of the condemner’s right to take the property, and the second part involving the amount of damages to which the property owner is entitled, provided the right to take exists.¹

Each condemner must satisfy a three-part test in order to have the right to take private property under the power of eminent domain. The first part of the test is the authority of the condemner to use the power of eminent domain. The second part of the test is whether the private property being taken will be put to a public use by the condemner. The third part is whether the private property is necessary for the accomplishment of the public use.

Authority
As noted in chapter one, the Tennessee General Assembly has by statute or private act authorized the exercise of the power of eminent domain by a wide variety of governmental agencies and public service corporations. However, for the condemner to have the right to take a specific piece of property, the entity with the power of eminent domain must determine that the particular property being taken will be put to a public use and that the particular property is necessary for that use. Such action by the entity is essential not only to show that the condemnation proceedings are properly authorized, but, as discussed further below, to eliminate any challenge by the property owner regarding the necessity for the taking of the property.

The municipal or county condemner normally authorizes the acquisition of property under the power of eminent domain through adoption of an ordinance or resolution that authorizes the acquisition of certain parcels of property for a specified municipal or county project.² If an ordinance is required, a resolution will not suffice. ^2A Such an ordinance or resolution should set out the nature of the project being undertaken, recite that the taking is for public use and in the public interest, and state that acquisition of the particular properties identified is necessary for that purpose.³ The ordinance or resolution should specifically authorize the filing of condemnation proceedings to acquire the properties identified.⁴

There must be strict compliance with all applicable charter provisions, statutes, and private acts regarding the adoption of ordinances or resolutions. Failure to comply will result in the condemner lacking the authority to condemn the property identified in the ordinance or resolution.⁵ Also, if the applicable statutory provisions impose pre-conditions to the filing of condemnation proceedings, such as publication of notices, the pre-conditions must be met for the condemner to have the authority to institute condemnation proceedings.⁶

A copy of the ordinance or resolution may be attached to the petition for condemnation⁷ or referenced by ordinance number in the body of the petition. If the right to take is challenged, a certified copy of the ordinance or resolution may be introduced into evidence to establish that the condemner has the authority to take the property in question.

Public Use
The term “public use” does not have a precise and universally acceptable definition.⁸ The determination of whether a proposed use constitutes a public use must be based on the facts of each case because the term must remain elastic to meet the growing needs of a complex society.⁹

The General Assembly adopted a restrictive definition of “public use” that is codified in T.C.A. § 29-17-102(b). Generally, the definition precludes the use of eminent domain for private benefit and makes exceptions for certain well-recognized public uses that normally have incidental private benefits.

As noted above, the legislative body makes the initial determination that the taking of private property is for a public use. If the property owner challenges the condemner’s right to take on the grounds that the property will not be put to a public use, the court has the right and the duty to determine whether the proposed use is a public use.¹⁰ The determination by the legislative body that the proposed use is a public use is entitled to a strong presumption of correctness,¹¹ but it is not conclusive on the court.¹² When the court finds that the proposed use has no significant relationship to the public benefit, it must find that the condemner lacks the right to take private property under the power of eminent domain.¹³

Narrow vs. Broad View
Various decisions by the courts on whether a proposed use is a public use have been categorized into two groups: (1) cases in which the courts used a narrow view of the scope of public uses, and (2) cases in which courts used a broad view of the scope of public uses.¹⁴ Courts using the narrow view require that the public must be entitled as of right to directly use or enjoy the property taken.¹⁵ Under the broad view, the condemnation of the property need be only for the public benefit or common good.¹⁶ Under either view, it is not essential that the entire community directly enjoy or participate in the proposed use for the court to find a public use.¹⁷ Thus, the extension of utility service to serve a single customer who has the right to service from the utility may constitute a public use that justifies the condemnation of easements necessary to construct the utility line.¹⁸

Under the federal Constitution’s public use requirement, a public entity may take private property for transfer to another private party for economic development. ^18A Since Tennessee does not have statutes authorizing this except for blight removal and industrial development, however, it is unlikely that the state constitution’s public use clause would be interpreted to embrace Kelo takings. Further, the General Assembly passed legislation in response to the Kelo case, generally codified in T.C.A. §§ 29-17-101 et seq., that attempts to ensure that there will be no Kelo takings in Tennessee.

Public vs. Private Condemner
In determining whether a proposed use constitutes a public use, the courts also consider whether the condemner is a public or private entity. For the purpose of this analysis courts have recognized that there are at least three categories of condemners: governmental entities, public service corporations regulated by the state, and private individuals or corporations, and that the standards for public use will differ for each category.¹⁹

If the condemner is a governmental entity, the courts determine whether the public would be entitled to receive and enjoy the benefits of the proposed use.²⁰ The general public need not have access to the property to satisfy this requirement.²¹ Acquiring property as part of a redevelopment plan under which the property will subsequently be resold to a private developer does not result in the property being acquired for a private purpose when the public receives a benefit from the complete implementation of the redevelopment plan.²²

Where the condemner is a public service corporation regulated by the state, the court must determine whether the public will be given an opportunity to make use of the service provided by the public service corporation at reasonable rates and without discrimination.²³ The proposed use must satisfy a public demand for facilities for travel or transportation of intelligence or commodities, and the general public, under reasonable regulations, must have a definite and fixed use of the services of the condemner independent of the will of the condemner.²⁴

If the condemner is a private corporation or individual, the courts will rarely find that the proposed use is a public use. If the proposed use is absolutely necessary to permit the private individual or corporation to discharge duties owed to the public, a public use may be found.²⁵ Otherwise the court will require the condemner to establish that the general public will be entitled to make a fixed and definite use of the property being condemned, independent of the will of the condemner.²⁶

The following have been found to constitute public uses when the condemner was a governmental entity:
· Municipal streets;²⁷
· Street lights;²⁸
· County roads;²⁹
· Bridges;³⁰
· Sewers;³¹
· Utility facilities and office buildings;³²
· Waterworks;³³
· Cemeteries;³⁴
· Golf courses;³⁵
· Parks;³⁶
· Greenbelts;³⁷
· Slum clearance projects;³⁸
· Redevelopment projects;³⁹
· Easements across railroad rights of way; ⁴⁰ and
· Schools. ^40A



The following have been found to constitute public uses when the condemner was not a governmental entity:
· Railroad tracks and terminal facilities;⁴¹
· Telephone lines and underground fiber optic cables;⁴²
· Grist mills;⁴³
· Iron works;⁴⁴
· Electric power facilities;⁴⁵
· Privately owned turnpikes;⁴⁶
· Flumes;⁴⁷
· Telegraph lines and poles;⁴⁸
· Private water lines;⁴⁹ and
· Microwave relay towers.⁵⁰

Property Devoted to Public Use
Property that is devoted to a public use cannot be condemned for another public use⁵¹ in the absence of legislative authority permitting the condemner to take property already devoted to a public use.⁵² The regulation of land uses under the police power, however, does not result in the property being devoted to a public use that would preclude condemnation.⁵³

Necessity
Unlike the review of the legislative body’s determination of public use, the court has only a limited review of the necessity to take any particular parcel of property. The legislative body’s determination of necessity is conclusive upon the courts in the absence of a showing of fraudulent or arbitrary and capricious action by the condemner.⁵⁴

Arbitrary and capricious actions are willful and unreasonable actions taken without consideration for or in disregard of the facts existing at the time the condemnation was decided upon or within the foreseeable future.⁵⁵ An action is not arbitrary and capricious when exercised honestly and upon due consideration where there is room for two opinions, even if the court believes that the condemner erred in basing its decision on one of the two opinions.⁵⁶

Thus, the property owner cannot ask the court to substitute its judgment for that of the condemner on what is in the best interest of the public.⁵⁷ The court cannot substitute its judgment on the proper parcel of property to be taken, as distinguished from similar property in the same area, or determine the suitability of a particular parcel of property for the proposed use, or decide the quantity of property required by the condemner for the proposed use.⁵⁸

Condemnation for Future Needs
The propriety of the condemner acquiring property for expected future needs has never been addressed by a Tennessee court, but other courts have found that the time of the taking, like the location and extent of the property to be acquired, is a question for the legislative branch that will not be disturbed by the courts absent fraud or arbitrary and capricious action.⁵⁹ As long as the future need for the property can be fairly anticipated by the condemner, the courts will not interfere with the condemner’s determination of necessity.⁶⁰ Since the condemner in Tennessee is not barred from the exercise of common sense or good business judgment in the operation or construction of public facilities,⁶¹ it is likely that Tennessee courts would permit the condemnation of property the condemner fairly expects will be needed to satisfy the condemner’s future needs.

Procedural Issues
Since condemnation cases have the dual nature mentioned above, challenges to the condemner’s right to take normally are resolved as a preliminary matter before the determination of the amount of just compensation to which the property owner is entitled.⁶² The condemner has the burden of proof of establishing the right to take.⁶³ The determination of the right to take is a matter for the court and not the jury.⁶⁴ If the court finds that the condemner has the right to take, and the condemner posts the bond required by statute and takes possession of the property, the judgment on the right to take issue becomes final and must be appealed at that time.⁶⁵ Thus, there may be two final judgments in any condemnation action.⁶⁶

Chapter Four
Just Compensation

Introduction
The constitutional requirement that private property not be taken for public use without payment of just compensation to the property owner¹ is satisfied by the payment of the fair cash value² or the fair market value of the property on the date of the taking for public use.³ The “fair market value“ of the land is the price that a reasonable buyer would give if he or she were willing to but did not have to purchase and that a willing seller would take if he or she were willing to but did not have to sell the property in question.⁴ The amount of just compensation to which the property owner is entitled is a question for the jury or court acting as the trier of the facts,⁵ and the parties have the right to a trial by jury.⁶ After the condemner’s right to take has been established, the burden of proof shifts to the property owner to show the amount of just compensation to which he or she is entitled for the taking.⁷

Establishing Fair Market Value
The fair market value of the property taken by the condemner must be established as of the date of the taking.⁸ Therefore, the enhancement in value or depreciation in value of the property that occurred before the taking in anticipation of the completion of the public improvement may not be considered by the jury.⁹ This problem usually is encountered when a public improvement is constructed in stages or is enlarged so as to require additional property. If the property increases in value due to its proximity to the construction of the public improvement, and at a later date the condemner decides to acquire additional land for the expansion of the public improvement, the condemner is required to pay for the enhanced value of the property.¹⁰

If, on the other hand, the public project from the beginning contemplated the acquisition of several parcels of property but only one was acquired initially, the owners of the remaining tracts are not entitled to benefit from any appreciation in value resulting from construction of the project.¹¹ This is known as the “scope of the project” rule. The condemner has the burden of proof in establishing that the property in question was within the scope of the project.¹² The condemner need not show that the property was actually specified in the original plans for the project so long as it can be established that during the course of the planning or original construction of the project, it became evident that the property in question would be needed for the project.¹³ To determine whether the appreciation in value resulted from the proposed public improvement, the trial court must make a preliminary determination on the scope of the project, which will serve as the basis for the admissibility of comparable sales that might reflect the appreciation.¹⁴

In establishing the fair market value of the property being taken, the jury may not consider prices previously offered by prospective buyers of the property.¹⁵ The price actually paid several years before the condemnation may also be excluded. ^15A The prices at which the property was previously offered for sale also cannot be considered in determining the fair market value of the property.¹⁶


Evidence of environmental contamination, as well as the reasonable cost of remediation, is relevant to the issue of valuation and erroneous exclusion of this evidence warrants a new trial. ^16A

All capabilities of the property and all legitimate uses for which it is available and reasonably adapted must be considered in determining the fair market value of the property.¹⁷ See also T.C.A. § 29-17-1004. Therefore the probable imminent rezoning of the property may be considered in determining the capabilities and uses for the property.¹⁸ Present zoning is only one of several factors to be considered in valuing land that is taken. Zoning is not dispositive because zoning changes may be made to reflect the changing needs and circumstances of the community. This same rule applies to deed restrictions. ^18A Also, the capability of the property to be developed for one or more particular uses may be shown so long as the proposed uses are not unfeasible or remote in likelihood or in time given the circumstances and location of the property, and so long as these uses are not overemphasized.¹⁹

Speculative value of property in the hands of a future owner cannot be considered.²⁰ The rental value of the property taken may be considered in estimating the fair market value of the property.²¹ Ordinarily, the profits of a business located on the property are not relevant to establish the fair market value of the property, but there are exceptions to this rule in circumstances where the property has special value to the owner and there is no other evidence upon which to establish the fair market value of the property.²²

The particular use for which the land is most valuable or to which it is presently adapted may be considered by the jury in determining the fair market value of the property, but it may not be the sole basis for that determination.²³ Thus, a witness may not base his or her estimate of the value of the property on its value for a single use such as the “highest and best use.”²⁴ See also T.C.A. § 29-17-1004. A witness may testify that the property has a fair market value of a certain amount and may explain on direct and cross examination the particular qualities of the property and the specific uses to which the property may be adapted, but the witness cannot testify that the property has a value of a certain amount for “building lot purposes“ or “for the best use.“²⁵ This rule is designed to avoid overvaluation of the property by preventing the jury from giving excessive weight to the value of the property to the condemner.²⁶

The value of the land to the owner is not ordinarily relevant if there is a market value for the land.²⁷ A partial exception to this rule may exist when the property has a special value to the owner, without possible like value to others who may acquire it.²⁸ Such a special or peculiar value to the owner may be taken into consideration in determining the fair market value of the property.²⁹

When title to an entire tax parcel is condemned in fee, the total amount of damages may not be less than the latest valuation used by the assessor of property prior to the taking, less any decrease in value since then. The assessor’s valuation may be introduced and admitted into evidence. T.C.A. § 29-16-114(a)(2).


Comparable Sales
One method of establishing the fair market value of the property being taken is the introduction of sales of similar properties.³⁰ Whether a sale is sufficiently comparable to be admissible is a preliminary question for the trial court.³¹ However, the trial court’s discretion is not unlimited, and the appellate courts will reverse the decision of the trial court in the appropriate circumstances.³²

For a sale to be sufficiently comparable to be admissible, it must have been a voluntary sale, or an arm’s length transaction, and cannot have been the result of a compromise.³³ Therefore sales to a condemner,³⁴ or under the threat of condemnation,³⁵ are inadmissible, as are sales of property upon which are placed unusually stringent restrictions on the use of the property.³⁶ Sales that have been affected or influenced by the public project for which the property is being acquired will also be inadmissible.³⁷

If the sale was an arm’s length transaction, the trial court must next consider whether the properties are similar in nature and near the same location and that the time of the sale was at or about the time of the taking.If the sale was an arm’s length transaction, the trial court must next consider whether the properties are similar in nature and near the same location and that the time of the sale was at or about the time of the taking.³⁸ In making this determination, the trial court will consider the size,³⁹ the time of the sale,⁴⁰ changes in conditions since the time of the sale,⁴¹ the current zoning or any imminent rezoning,⁴² the location⁴³ and vicinity, proximity to existing improvements, improvements existing on the properties, terrain or other geographic features, and all available uses to which the properties are adapted.⁴⁴ The sales do not have to be exactly comparable in every respect, and there is no general rule on the degree of similarity required.⁴⁵

After the trial court determines that a sale is comparable and may be admitted into evidence, the weight to be given to the sale is a question for the jury.⁴⁶ If a particular sale was made under exceptional circumstances, these circumstances can be shown and the jury can determine the probative force of the sale.⁴⁷

Opinions as to Value
In addition to using comparable sales to determine the fair market value of the property taken by the condemner, and any incidental damages and incidental benefits to the remainder of the property, lay⁴⁸ and expert witnesses⁴⁹ can give opinion evidence on the value of the property being taken. Thus, the owner can give an opinion as to the fair market value of the property, but that opinion will be given little weight when founded on pure speculation.⁵⁰

The trial court has wide discretion in the admission of expert testimony on the value of real property.⁵¹ Nevertheless, the court cannot permit an expert to give an opinion as to the value of real property for a particular purpose, but should require the expert to base his or her opinion on the fair market value for all legitimate uses for which the property is available and reasonably adapted.⁵²

The expert witness may state his or her opinion as to the value of the property and the basis on which he or she arrived at that opinion.⁵³ The answers given by the expert on cross examination may be considered by the court and jury in evaluating the opinion of the expert witness.⁵⁴

Neither the court nor the jury is bound by the opinion of the expert witness.⁵⁵

Incidental Damages
When the condemner takes a part but not all of a parcel of property, the condemnation statutes permit the property owner to recover incidental damages for any injury to the remainder resulting from the taking. T.C.A. §§ 29-16-114; 29-17-910. The payment of incidental damages is not required by the Tennessee Constitution, but rather is provided by statute.⁵⁶ Incidental damages are properly measured by the decline in the fair market value of the remainder of the property by virtue of the taking.⁵⁷ The landowner in an eminent domain proceeding is not entitled to a jury trial on what kinds of damages are to be included in an incidental damages award. ^57A

The award of incidental damages is limited to property owners whose property is actually taken by the condemner.⁵⁸ Adjacent property owners whose land is not condemned but is nevertheless adversely affected by construction of the public improvement cannot recover incidental damages under these statutes.⁵⁹

Where a portion of the property has been taken, the property owner may recover incidental damages only upon a showing of some specific injury to the remainder, or its value, which is the direct result of the taking.⁶⁰ A railroad can recover neither depreciation costs nor damages for increased exposure to liability from additional crossings required by a taking for a street crossing a railroad right of way. ^60A The injury must be more than an inconvenience shared by all members of the public; rather, it must specifically affect the remainder of the property that was taken.⁶¹ This does not result in an injury becoming non-compensable merely because other property owners are similarly affected.⁶² If the property owner can establish that exceptional circumstances attend the taking and use of the property by the condemner that result in a special injury to the remainder of the property, the property owner may recover incidental damages even if the special injury is common to all property in the area.⁶³

Whether flooding to the remainder of a land owner’s property due to road construction was incidental damage and whether the land owner was estopped from recovering for inverse condemnation under a deed provision stating that compensation paid by the city included “payment for any and all incidental damages to the remainder compensable under eminent domain” was an issue for the jury. ^63A

In addition to diminution in the fair market value of the remainder, the condemnation statutes include as incidental damages:
· Reasonable expenses incurred for removing, relocating, and reinstalling furniture, household belongings, fixtures, equipment, machinery, or stock in trade to another location not more than 50 miles distant;
· The costs of any necessary disconnection, dismounting, or disassembling and loading and drayage of the chattels;
· Recording fees, transfer taxes, and other similar expenses incidental to conveying the property to the condemner;
· Mortgage pre-payment penalties; and
· The proration of real property taxes. T.C.A. § 29-16-114.
The property owner can recover only moving expenses that have been actually incurred at the date of trial or that can be shown to be reasonably necessary in the future and can be accurately estimated by witnesses.⁶⁴ The landowner is entitled to average hourly wage for labor costs related to relocation but not the “burden rate” added for the cost of utilities, health insurance, and retirement. ^64A These incidental damages cannot be recovered if the chattels to be moved are destroyed by fire before moving.⁶⁵ Also, moving or relocation expenses cannot be recovered for the removal of equipment, fixtures, or other chattels that were not located on the land taken by the condemner.⁶⁶

Although not specifically set out by statute, the following have also been found to constitute incidental damages to the extent they reduced the fair market value of the remainder of the property:
· Noise, soot, and inconvenience created by the operation of a railroad;⁶⁷
· Obstruction of view by a highway embankment;⁶⁸
· Reasonable apprehension of danger from the public improvement;⁶⁹
· Changes in drainage;⁷⁰
· Loss of access to an abutting street;⁷¹ and
· A decrease in business. ^71A

Incidental Benefits
The condemner is entitled to have the amount of incidental damages reduced by the amount of incidental benefits that accrue to the remainder as the result of the construction of the public improvement. T.C.A. §§ 29-16-114; 29-17-910. Like incidental damages, incidental benefits are determined independently of the just compensation required by the Tennessee Constitution.⁷² Therefore, incidental benefits cannot be considered in determining the amount of just compensation to which the property owner is entitled for the portion of the property taken by the condemner.⁷³

Incidental benefits include only those benefits special to the remainder of the property owner’s property as opposed to the general benefits of a public improvement shared by the public at large.⁷⁴ However, incidental benefits are not prevented from being special by the fact that other properties abutting the public improvement are similarly benefitted where those benefits are not common to all the properties in the vicinity.⁷⁵ Thus, increased accessibility to the property⁷⁶ or easy access parking⁷⁷ may still constitute incidental benefits even though property owners on the same street have also gained better access or parking. On the other hand, a general increase in property value experienced by all area residents as a result of street improvements does not constitute an incidental benefit that may be set off against incidental damages.⁷⁸

Procedural Issues
The general rule is that incidental damages and incidental benefits are to be estimated as of the date of the taking.⁷⁹ However, since incidental damages and incidental benefits are premised on the impact to the remainder of the property resulting from construction of the public improvement, proof showing the damage or benefits occurring after the taking has been permitted in instances where the trial occurs long after the public improvement has been completed.⁸⁰ Property owners whose property is being acquired for street, road, highway, freeway, or parkway purposes are entitled to obtain a continuance of the condemnation case until the public improvement is completed to eliminate uncertainty as to the incidental damages or incidental benefits that may occur as the result of the construction. T.C.A. § 29-17-1201. If the condemnation case is tried before the project is completed, maps, drawings, and photographs of the land may be introduced at trial as long as the evidence would not be misleading.
T.C.A. § 29-17-1202.

Interest
Interest at two percentage points greater than the prime loan rate established, as of the date of the taking, by the Federal Reserve System of the United States must be paid by the condemner on any judgment obtained by the property owner. T.C.A. § 29-17-913. This interest is allowed from the date of the taking on the amount in excess of the amount deposited with the clerk of the court.⁸¹ Post-judgment interest accrues at the rate of 10 percent per year. ⁸²

Chapter Five
Inverse Condemnation

Introduction
As noted in chapter one, the Tennessee Constitution’s Article I, Section 21, prohibits the taking of private property for public use without the payment of just compensation. A property owner whose property is taken for a public use without the payment of just compensation has a remedy for the taking in a “reverse condemnation“ or “inverse condemnation“ action. T.C.A. § 29-16-123.¹ But, this statute does not provide authority to file suit for inverse condemnation in a state court against the state. ^1A The property owner also may bring an action for trespass in a proper case and is not limited to proceeding by the statutory method prescribed for inverse condemnation actions. The property owner who sues for damages in a trespass action may also recover punitive damages in an appropriate case. ²

Inverse condemnation claims have been classified by the courts into two general categories: (1) physical takings, and (2) regulatory takings.³ Physical takings occur where property in addition to that previously condemned in formal proceedings is taken by the condemner without paying just compensation to the property owner,⁴ or where an entity with the power of eminent domain appropriates private property for public use without instituting formal condemnation proceedings.⁵ Regulatory takings occur when a regulation adopted under the police power denies an owner economically viable use of his or her property.⁶

Federal takings cases had included the test of whether a regulation substantially advances a legitimate state interest to determine if a taking had occurred, but this test has been abrogated. ⁷

Physical Takings
One of the most difficult questions presented in any takings case is whether the damages that have occurred to private property are sufficient to constitute a taking for which just compensation must be paid. Courts have held that the action of any entity with the power of eminent domain in carrying out the purposes for which it was created may constitute a taking when it destroys, interrupts, or interferes with the common and necessary use of real property of another, even if there is no actual entry upon the property.⁸

Not every action by an entity with the power of eminent domain that damages or interferes with the use of private property, however, will constitute a taking.⁹ Whether a taking has occurred is a fact-specific determination based on the nature, extent, and duration of the intrusion onto the private property.¹⁰

Thus, as noted in the preceding chapter on incidental damages, a property owner whose land is not formally condemned for a public improvement may not, as a general rule, recover for the consequential damages resulting from the construction or operation of a public improvement located near, but not on, his or her property.¹¹ These non-recoverable damages include all injuries naturally and unavoidably resulting from the proper, non-negligent construction or operation of a public improvement that are shared generally by property owners whose properties lie within the range of the inconveniences necessarily incident to the improvement.¹²

Thus, the owner whose property is formally condemned in part for the construction of a public improvement will be entitled to recover incidental damages while the owner whose land is not formally condemned but nonetheless suffers actual damages from the construction or operation of a public improvement nearby will not be entitled to recover for these damages. This distinction results from the eminent domain statutes permitting incidental damages to be recovered where a portion of a larger tract of property is taken for a public improvement, while the inverse condemnation remedy is available only to owners of property that is taken, and not just damaged, by an entity with the power of eminent domain.

Courts have found that a taking has occurred when the proper non-negligent construction of a public improvement directly invades or peculiarly affects private property and creates substantial and continual interference with the practical use and enjoyment of the land. Thus, takings have been found where the entity with the power of eminent domain failed to acquire drainage easements or flowage easements sufficient to handle storm water runoff or other discharges necessarily incidental to public improvements,¹³ or diverted a stream to another property as the result of the construction of a public improvement,¹⁴ or denied access to a highway as the result of construction on the highway.¹⁵ Takings have also been found where the entity with the power of eminent domain failed to acquire adequate slope easements for highways, resulting in the encroachment of the highway on private property,¹⁶ or failed to acquire aircraft over-flight easements across property located adjacent to airports,¹⁷ or failed to acquire interests on property affected by non-natural electric conditions produced by an electric street railroad company.¹⁸ In each of these cases the courts found that the nature, extent, and duration of the intrusion on, or interference with, private property resulted in the taking.

Mere proof, however, that the construction or maintenance of a public improvement has resulted in a loss of profits from a business operated on property located adjacent to the public improvement¹⁹ or in a decrease in property value²⁰ will be insufficient to establish a taking. A decrease in business, however, may require compensation. ^20A

Another problem that must be confronted when determining whether or not an injury to private property constitutes a taking is the distinction between a nuisance and a taking.²¹ Courts have defined a nuisance as anything that annoys or disturbs the free use of one’s property or that renders its ordinary use or physical occupation uncomfortable.²² A temporary nuisance is a nuisance that can be corrected by the expenditure of labor or money.²³ Courts usually classify as nuisance injuries to private property that result from the improper, negligent construction or operation of a public improvement or that are temporary in nature and permit successive recoveries by the property owner until the nuisance is abated.²⁴ Conversely, courts usually classify as takings injuries to property of a permanent nature resulting from the proper, non-negligent construction or operation of a public improvement and permit only a single recovery.²⁵


Whether a particular activity sufficiently interferes with the use of private property to constitute a compensable taking is a matter of degree. The conceptual difficulty inherent in classifying a particular activity may be simplified by visualizing, on a continuum, consequential damages, nuisance damages, and damages recoverable for a taking. At one extreme may be placed consequential damages which, as noted above, would include all injuries naturally and unavoidably resulting from the proper, non-negligent construction or operation of a public improvement that do not directly invade or peculiarly affect the plaintiff’s private property, but rather are shared by the public generally. Consequential damages are thus analogous to damages caused by a public nuisance for which a private property owner cannot recover without establishing damages attributable to the private nuisance. At the center of the continuum may be placed nuisance damages resulting from the improper, negligent construction or operation of a public improvement that substantially interferes with the practical use and enjoyment of the private property and that peculiarly affects the property. These damages are recoverable only under a theory of temporary private nuisance and are actionable until the nuisance is finally abated.

At the other extreme are damages recoverable for a taking, which include those resulting from the proper, non-negligent construction or operation of a public improvement that directly invades or peculiarly affects the private property and creates a substantial and continuing interference with its practical use and enjoyment. Thus, damages for a taking in this sense closely approximate and may, in a practical sense, be virtually indistinguishable from those recoverable for a permanent private nuisance. Since this discussion reveals that the finding of a taking is a fact-specific inquiry, it is helpful to review the circumstances under which courts have found a physical taking.

Impairment of Easements of Access and Way
Courts in Tennessee have recognized that a property owner has an easement of access between his or her land and the abutting street, which extends to the center of the abutting street, absent any evidence to the contrary.²⁶ Although as noted in the preceding chapter some courts have found that an impairment of a property owner’s easement of access can constitute incidental damages to the remainder of property when a portion of the property is taken in a condemnation action, other courts have held that any impairment of this right of ingress and egress constitutes a taking for which the owner may recover just compensation in an inverse condemnation action.²⁷ Thus property owners have been allowed to recover just compensation where the owner’s access was destroyed by a change in the grade of a street or highway,²⁸ or by the construction of a fence,²⁹ or by the construction of a drainage ditch alongside a highway.³⁰ Incidental damages were allowed when curbing impaired full access from the abutting street. ^30A

In addition to an easement of access, a private property owner whose property abuts a public street or road has an easement of way, or right of passage, in the street abutting his or her property.³¹ This easement of way is a private property right that exists in addition to the right to use the street in common with the general public.³² This easement extends along any street or alley upon which the owner’s property abuts, in either direction, to the next intersecting street.³³ This right usually is impaired by the closing of public streets or roads.³⁴ No recovery has been allowed when a two-way street abutting an owner’s property has been changed to a one-way street, as this constitutes a valid exercise of the police power for which the payment of just compensation is required only in unusual circumstances.³⁵

Water Damage
Takings have been found where the construction or operation of a public improvement resulted in recurring flooding of private property³⁶ or increased the amount of storm water runoff that caused erosion.³⁷ A taking has also been found where water was regularly discharged from water treatment facilities across adjoining private property,⁸ where a public improvement altered the flow of a stream and caused erosion,³⁹ and where the construction of a public improvement diverted a stream that previously flowed across private property.⁴⁰

Aircraft Overflights
A taking of airspace above private property may result from frequent low flights of aircraft that substantially interfere with the practical use and enjoyment of the property.⁴¹ Noise, vibrations, and airplane pollutants unaccompanied by an actual physical invasion of the airspace immediately over the property owner’s land may also constitute a taking. Direct overflight is not required. ⁴²

A taking has also been found when trees were cut on private property in an airport approach zone established by a municipal ordinance.⁴³ The court found that removing the trees and limiting the height of buildings in the airport approach zone constituted a taking.⁴⁴

Takings Prior to Condemnation
Where a condemner appropriates private property prior to instituting formal condemnation proceedings, a taking obviously occurs. Thus, a taking occurred where electric transmission lines were constructed before a condemnation proceeding was filed.⁴⁵ In that situation the appropriation is illegal until just compensation is paid to the property owner, and the condemner acquires only a possessory right that is not transferable.⁴⁶ Takings have also been found where a condemner filed condemnation proceedings but nonsuited the proceedings before paying just compensation to the property owner,⁴⁷ where a municipality annexed a subdivision and asserted ownership over the water and sewer system serving it without paying just compensation to its owners,⁴⁸ where the condemner failed to acquire the interest of the lessee of property conveyed to the condemner by the lessor,⁴⁹ and where the condemner failed to acquire the property interests in certain restrictive covenants from the residents of a subdivision before constructing a public improvement in violation of those covenants.⁵⁰ The property owner’s sole remedy for these takings is an inverse condemnation action, as the courts have specifically rejected attempts to enjoin⁵¹ or eject⁵² the condemner who has taken the property without instituting condemnation proceedings.

Additional Takings
A significant issue presented in any case where a property owner seeks to recover just compensation for the taking of private property in addition to that previously acquired by the condemner is whether the property owner is estopped by the prior condemnation award or deed to the condemner from recovering additional compensation.⁵³ The condemnation award encompasses all damages, present and future, that the property owner knew or should have known would result from the proper construction or operation of the public improvement.⁵⁴ The burden of proof of showing an estoppel is on the condemner, unless the language of the condemnation decree or deed is unambiguous.⁵⁵

An exception to this rule applies for losses or damage that could not reasonably have been anticipated by either party or, if alleged by the property owner in the condemnation proceeding, would have been rejected as speculative or conjectural.⁵⁶ Under this exception, recovery has been permitted for landslides onto private property that resulted from cuts made during the construction of a highway,⁵⁷ for damage to a dam caused by excessive blasting during the construction of a pipeline,⁵⁸ and for damage to a wall caused by blasting for electric transmission lines.⁵⁹ Recovery has been denied when the property owner knew or should have known that curbs limiting access to his property would be constructed as part of a highway project⁶⁰ and where the fill from a street that was elevated by the condemner spread onto adjoining property since the owner knew or should have known that the fill would have encroached upon his property when he conveyed a portion of the property to the condemner.⁶¹

Regulatory Takings
The United States Supreme Court revolutionized the law of regulatory takings in 1987 when it held that a local government must pay just compensation for temporary regulatory takings.⁶² In that same year the U.S. Supreme Court decided two other cases that dealt with regulatory takings.⁶³ Since those decisions, regulatory taking cases have flooded the courts as property owners seek to recover for the diminution in the value of their property resulting from the enforcement of police power regulations affecting private property. Not surprisingly, most of these cases involve land use regulations adopted by local governments.

Although the inverse condemnation statute would not appear to be applicable by its terms to a regulatory taking of private property where no physical invasion or interference is involved, the U.S. Supreme Court⁶⁴ and a Tennessee court⁶⁵ have held that an inverse condemnation action could be maintained based on unreasonable restrictions placed on the use of property by a regulation adopted under the police power.

A regulation adopted under the police power can result in a taking of private property for which the payment of just compensation is required if the regulation denies the owner economically viable use of his or her property.⁶⁶ Temporary moratoria on development are not subject to a per se taking rule and may withstand a taking claim. The standards set out in Penn Central Transportation Co. v. New York City apply in these cases. ^{67 A} Unreasonable denials of proposals for development, however, may engender liability under 42 U.S.C. 1983, and a jury trial is available to determine these claims. ^67B

The taking test requires an inquiry into whether the regulation denies the property owner the economically viable use of his or her property.⁶⁸ This is a highly fact-specific inquiry that is not subject to a set formula.⁶⁹ Whether a taking has occurred is a question of degree and cannot be determined by general propositions.⁷⁰ The courts have used ad hoc factual inquiries, relying on factors such as the character of the governmental action, the economic impact of the regulation on the property owner, the interference with reasonable investment-backed expectations, and the nature and extent of the interference with the rights in the property as a whole.⁷¹ Where a state regulation prohibits all economically beneficial use of land, to be imposed without necessity of compensation, it must do no more than duplicate what could otherwise be done under the state’s nuisance laws. ^71A

In considering the economic impact of the regulation on private property, the courts recognize that the mere diminution of property value, or the substantial reduction of the attractiveness of the property to potential purchasers, or the denial of the ability to exploit a property right the owner previously believed was available, will not suffice to establish a taking.⁷² The inquiry must instead focus on the value of the remaining uses to which the property may be put⁷³ and a comparison of the owner’s investment or basis with the market value of the property subject to the regulation.⁷⁴ When considering whether the regulation interferes with the owner’s investment-backed expectations, the court must determine that the expectations were reasonable, or at least consistent with the law in force at the time the expectation was formed.⁷⁵ The purchase price is only one of the factors that should be considered in determining whether a regulation interferes with reasonable investment-backed expectations.⁷⁶

Courts applying these factors have found takings in instances where there was no value for the uses remaining for the property after the adoption of the regulation⁷⁷ and where there was a loss of 96 percent of the possible rate of return on an investment.⁷⁸ Courts have rejected takings claims where valuable uses of the property remained after the imposition of the regulation, even if those uses were not the most valuable uses.⁷⁹

Exactions
Municipalities often use exactions to require developers and property owners to provide needed public amenities. A developer or property owner must be compensated for the exaction if there is no nexus between the exaction and a public purpose. ⁸⁰

Courts have found that requiring a property owner to grant a public easement along a beach as a condition to construct a house on a beach constituted a taking since the exaction did not protect the public’s ability to see the beach ⁸¹ and that requiring a dedication of land for a greenway and bicycle/pedestrian pathway did not bear the necessary relationship to problems created by a commercial development to avoid a taking. ^81A In addition the regulation must be reasonably related to the public need or burden that a property owner’s use of his or her property creates or to which it contributes.⁸² Therefore, regulations that impose land dedication requirements to develop property may constitute a taking if the property owner is required to dedicate property in excess of the amount that is necessary to offset the additional burdens on the public interest resulting from the use of his or her property.⁸³ The cost to the landowner must be “roughly proportional” to the additional public burden caused by the development. ^84A

A Tennessee case upheld the rezoning of property on the condition that the landowner dedicate a 12-foot right-of-way for future road expansion. The court applied a “fairly debatable” rule to the rezoning and dedication requirement. It should be noted, however, that a statute specifically authorized conditional zoning in the city. ^84B

Ripeness
Since the determination of whether a particular regulation has resulted in a taking of private property depends upon the economic impact of the regulation, a takings claim is not ripe, and cannot be considered by a court, until the property owner has obtained a final decision from the appropriate governmental agency on the application of the regulation to the particular parcel of property.⁸⁵ In the zoning context this final decision requirement forces the property owner to obtain two decisions from the governmental entity: (1) a rejected development plan, and (2) a denial of a variance.⁸⁶ Until the property owner has obtained a final decision, it is not possible to determine the actual economic impact of a regulation on the property in question.⁸⁷

For taking claims brought in federal courts there is a second ripeness requirement—the property owner must first have sought just compensation in state courts before bringing a takings claim in federal courts.⁸⁸ Thus, a property owner in Tennessee must first bring an inverse condemnation action in the state courts before filing suit in the federal courts to recover just compensation for a regulatory taking.

Measure of Damages
The normal measure of damages in an inverse condemnation case is the same as in any other condemnation case.⁸⁹ Where a permanent regulatory taking has occurred, the measure of damages is as discussed in chapter four. Where a temporary taking occurs, the property owner is entitled to the value of the use of the property during the time of the temporary taking.⁹⁰ The value of the temporary use of property normally is measured by the difference in rental value resulting from the imposition of the regulation.⁹¹ Some courts, however, have permitted the property owner to recover in excess of the rental value of the property based on the fair market value of the right to develop the property.⁹²

Statute of Limitations
Inverse condemnation suits must be commenced within one year after the land has been actually taken possession of and the work of the proposed internal improvement begun.
T.C.A. § 29-16-124.⁹³ In establishing the date the taking occurred, which commences the running of the statute of limitations, the courts consider the date of the actual injury to the property or the date the owner had reasonable notice or knowledge of the injury.⁹⁴

These general rules are somewhat difficult to apply where the private property is taken due to a public improvement located on adjacent property or is due to a regulatory taking. The statute of limitations was found not to bar a suit filed five years after a public improvement was completed on adjacent property but filed within one year of the date flooding occurred on the private property.⁹⁵ In a case involving a taking of airspace due to aircraft overflights, the court found that the operative date for the purposes of the statute of limitations was the date that direct overflights of low-flying aircraft commenced over private property, instead of the date the property for the airport was condemned or the date the construction of the airport was completed.⁹⁶

The statute of limitations does not commence until the landowner knows or should have known that the injury to his or her property was permanent in nature.⁹⁷ Thus, where a property owner received repeated assurances from the condemner over a two-year period that flooding caused by highway construction would be corrected, the court held that the statute of limitations did not bar the suit since the court found that the suit was filed within one year of the date the property owner discovered that the condemner had failed to correct the problem.⁹⁸

A similar result was obtained in a case involving a municipal ordinance that limited the height of buildings that could be constructed in an airport glide path.⁹⁹ The court rejected the municipality’s argument that the passage of the ordinance commenced the running of the statute of limitations, holding instead that the statute began to run only when the owner‘s property was injured by the taking and not when he or she had notice of the taking.¹⁰⁰

In instances where the condemner nonsuits a condemnation case after commencing construction of a public improvement, the statute of limitations began to run on the date the nonsuit was entered rather than the date construction was commenced.¹⁰¹

Attorney, Engineer , and Appraisal Fees
If a property owner prevails in an inverse condemnation case, he or she is entitled to recover from the condemner his or her reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees actually incurred because of the proceedings. T.C.A. § 29-16-123. The trial court must award these fees to the property owner if a demand is made by the property owner, although the court has the discretion to determine the reasonableness of those fees.¹⁰²

Chapter Six
Leasehold Damages

Introduction
It has been held that a leasehold constitutes a compensable property interest under the law of eminent domain.¹ This interest has been characterized as the right of the lessee to remain in undisturbed possession of the leased premise until the expiration of his term.² A lessee’s entitlement to damages is not limited to cases where the leasehold property is actually taken or destroyed, but extends even to cases where impairment of access to the leasehold property can be shown.³ A tenant also is entitled to recover compensation where the condemnation of a part of the leased premises destroys the value of the leasehold.⁴

Valuation of the Leasehold
The lessee is entitled to any excess in value of his or her unexpired leasehold over and above the rentals that would be due for the unexpired term.⁵ In other words, he or she is entitled to recover the fair market value of his or her leasehold interest less the rents he or she must pay to the landlord.⁶ While evidence of a property owner’s business profit normally is not allowed in condemnation cases, it may be admissible under the peculiar facts of a case to show the fair market value of the lessee’s interest.⁷ In the event of a partial taking of the leasehold, the lessee is entitled to recover the difference in value of the lease before the taking and the value of the lease after the taking.⁸

By statute, incidental damages to the leasehold include the lessee’s moving expenses,⁹ T.C.A. § 29-16-114, and where only a portion of the leasehold is acquired, any damage to the remainder of the leasehold.¹⁰

Where a partial taking of property subject to a leasehold occurs, the jury must first determine the total amount of just compensation for the taking, including the fair, reasonable cash market value of the property taken on the date of the taking, and incidental damages, if any, to that portion of the property remaining.¹¹ In determining the total fair market value of the fee, the jury should consider the leasehold as one element of the total fair market value of the property, as the leasehold indicates one available use of the property.¹² The total compensation is to include all losses suffered by all parties having an interest in the property affected and cannot exceed the value of the fee, unencumbered by the lease on the date of taking.¹³ The jury then apportions the total compensation between the landlord and tenant.¹⁴

Apportionment
In the typical condemnation case involving leased premises, the property owner and lessee are joined as parties, and the lessee is awarded a portion of the damages assessed as the value of the total property condemned. As noted above, the total compensation awarded to the owner and lessee may not exceed the value of the unencumbered fee, and this value, once established, may not be further increased because of the existence of an unexpired lease at the time of condemnation.¹⁵ In other words, the value of the leasehold is considered to be an integral part of the total value of the unencumbered tract of land.¹⁶

The jury should then apportion the total compensation (fair market value plus incidental damages) between lessor and lessee by determining the lessee’s interest, which is the fair market value of the leasehold on the property minus rent actually called for in the lease plus incidental damages to the leasehold, with the remainder of the property’s fair market value going to the lessor.¹⁷ This formula for apportionment is applicable regardless of whether a long-term or short-term lease is involved.¹⁸

The condemner may specify in the condemnation petition the various interests of the lessor and lessee, apportion the amount deposited with the court, and settle the case with either the lessor or the lessee.¹⁹ If the condemner follows this procedure, the lessee or lessor may then withdraw its amount in full satisfaction of its claim.²⁰

Appeal
Both the property owner and the lessee have an independent right to appeal the amount of damages awarded; joinder of parties is not necessary.²¹ On appeal, the court may increase the award to the appellant as long as it determines that the initial award did not accurately reflect the fair market value of the unencumbered fee²² or did not reflect the total aggregate amount of incidental damages.²³ Thus, any relief granted on appeal must be through an increase of the total award rather than a reallocation of the lower court’s award.²⁴

Chapter Seven
The Uniform Relocation Assistance and Real Property Acquisition Acts

Introduction
The Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970¹ was enacted for the purpose of providing fair and equitable treatment of persons displaced as a result of federal and federally assisted programs,² as well as consistent treatment of owners during the actual land acquisition.³ The provisions of the act are mandatory and apply to any public agency that administers programs supported at least in part by federal funds. The act consists of three subchapters: (1) General Provisions, which defines terms used in the act;⁴ (2) Uniform Relocation Assistance, which is concerned with moving and related expenses, replacement housing payments, relocation assistance advisory services, and the federal share of the cost of such payments and services;⁵ and (3) Uniform Real Property Acquisition Policy, which sets out the procedures to be followed in acquiring real property.⁶

In 1972, Tennessee enacted the Uniform Relocation Assistance Act of 1972, which generally followed the provisions of the federal act and had the effect of making relocation assistance and land acquisition procedures mandatory for any projects conducted by state agencies or supported by state financial assistance. T.C.A. §§ 13-11-101 et seq. The Tennessee act was amended in 1980 to also include any projects by a municipality or a county that received federal or state financial assistance.

The focus of this chapter will be on land acquisition procedures, since these are of considerable importance to attorneys representing condemners or condemnees. The federal government has promulgated governmentwide regulations for real property acquisition,⁷ which have been adopted by reference by such agencies as the Tennessee Valley Authority,⁸ the Environmental Protection Agency,⁹ and the Department of Housing and Urban Development.¹⁰

Appraisal Procedure
Before the acquisition of any tract of property by a public agency subject to the federal and/or state relocation acts, a full appraisal of the tract must be made. The regulations generally require that:
1. The property be appraised before the initiation of any negotiations with the property owner;
2. The owner or his designated representative be given an opportunity to accompany the appraiser during his inspection of the property;
3. The acquiring agency establish the amount it believes to be just compensation before initiating any negotiations with the property owner; and
4. The acquiring agency make a written offer to the property owner for the full amount believed to be the just compensation. The written offer must be accompanied by a written summary statement of the offer explaining the amount of the offer, the description of the property being acquired , and an identification of any improvements being acquired.¹¹

The agency must make reasonable efforts to contact the owner to discuss the offer and explain the basis for the offer and the acquisition policies of the agency. The owner must be given a reasonable opportunity to consider the offer and present material the owner believes is relevant to determining the amount of just compensation to which the owner is entitled. The agency must consider the owner’s presentation and must update its appraisal if the owner’s information or any material change in the character or the condition of the property indicates the need for a new appraisal or if there has been a significant delay since the time the appraisal was completed. The agency cannot advance the time of condemnation or take any other coercive action to induce a settlement by the owner.¹²

The type of appraisal that must be obtained by the agency is determined by the complexity of the appraisal problem.¹³ The appraisal must conform to minimum standards set by each agency and with commonly accepted appraisal practice if the appraisal does not require an in-depth analysis.¹⁴ If an in-depth analysis is required, a detailed appraisal must be performed that conforms to nationally recognized appraisal standards, including, if appropriate, the Uniform Acquisition Standards for Federal Land Acquisition.¹⁵ At a minimum a detailed appraisal must include:¹⁶
1. The purpose and/or function of the appraisal, a description of the estate being appraised, and a statement of the assumptions and limiting conditions affecting the appraisal;
2. An accurate description of the physical characteristics of the property (and any remainder if a partial taking will occur), a statement of known and observed encumbrances, if any, title information, location, zoning, present use, an analysis of highest and best use, and at least a five-year sales history of the property;
3. A description of all relevant and reliable approaches to value used consistent with commonly accepted appraisal practice (market data, income, or replacement cost). If more than one approach is used, there must be an analysis and reconciliation of approaches to value;
4. A description of comparable sales, including the parties to the transaction, source and method of financing, and verification by the parties involved;
5. A statement of the value of the real property to be acquired, and if a partial taking is proposed, a statement of the damages and benefits, if any, to the remainder; and
6. The effective date of the appraisal, signature, and certification of the appraiser.

The appraiser is required, to the extent permitted by applicable law, to disregard any decrease or increase in the fair market value of the property caused by the project for which the property is being acquired or by the likelihood that the property would be acquired for the project, other than due to physical deterioration within the reasonable control of the owner.¹⁷

Once the appraisal is completed, the agency must have the appraisal reviewed by a review appraiser.¹⁸ The review appraiser must examine the appraisal to assure that it meets all applicable requirements, and must seek any necessary corrections. The review appraiser then either approves the appraisal or develops a new appraisal consistent with the above requirements.

Before the agency can require the owner to surrender possession of the real property, the owner must be paid the agreed upon purchase price, or if no agreement has been reached, deposit with the court an amount not less than the approved appraisal for the fair market value of the property

or the amount of the court’s award of compensation in the condemnation action. In exceptional circumstances the agency can obtain a right-of-entry for construction purposes prior to making the payment available to the owner.¹⁹

Although the public agency may not pay less than the approved purchase price, as determined by its review appraiser, it may, under certain circumstances, make an offer of settlement in excess of that amount. In arriving at a determination to make an administrative settlement, the agency should take the following factors into consideration:²⁰
1 The appraiser’s opinion of value;
2. Any recent court awards for similar type property;
3. The estimated trial costs; and
4. Valuation problems with the property in question.

The agency is required to reimburse property owners for recording fees, transfer taxes, and similar costs incidental to conveying real property; penalty costs for pre-payment of any pre-existing recorded mortgage, entered into in good faith, encumbering the property; and the pro rata portion of real property taxes paid by the owner that are allocable to a period subsequent to the date of title vesting with the agency or the effective date of possession of the property by the agency, whichever is earlier.²¹

The owner is also entitled to be reimbursed for his reasonable expenses, including attorney, appraisal, and engineering fees actually incurred because of a condemnation proceeding if:
1. The court determines that the agency cannot acquire the property in question;
2. The condemnation case is abandoned by the agency other than under an agreed upon settlement; or
3. The court having jurisdiction renders a judgment in favor of the owner in an inverse condemnation case or the agency settles such a case.²²

Chapter Eight
Forms

Form 1

PETITION FOR CONDEMNATION

Petitioner _______________ respectfully states as follows:

1. Petitioner is a municipality and public corporation of the state of Tennessee and has the power of condemnation and eminent domain for public purposes when public convenience requires it pursuant to _______________ ( insert charter or private act section ). This petition is filed pursuant to Tennessee Code Annotated, Sections 29-17-901 et seq., ( or 29-16-101 et seq., if jury of view procedure is used ) to acquire certain property rights for the completion of _____________ ( identify project ) with specific authority as set out in ____________________ ( identify ordinance or resolution authorizing condemnation for project ).

2. The property rights sought to be acquired are part of the property rights in real estate located in the _______________ ( identify civil district ) District of ____________ County, Tennessee, conveyed to ______________ ( insert owner’s name ) from _____________ ( insert immediate predecessor in title ) of record in Book ___________, Page ____________, Register’s Office for ______________ County, Tennessee. This property is described more particularly as follows:

[Insert description ]

All as more particularly shown on the drawing or map attached as Exhibit ___________.

3. Petitioner has determined that respondent(s) owns the entire fee simple interest of the above-described real estate, subject to the encumbrances set out below:

[List encumbrances ]

4. Petitioner has determined the amount to which the respondent(s) is entitled is $_________, and this amount is deposited with the clerk of the court.

5. [ Add if jury of view is used ] Petitioner has filed this petition for the purpose of obtaining the issuance of a writ of inquiry of damages and the appointment of a jury of view pursuant to Tennessee Code Annotated § 29-16-101 et seq.

WHEREFORE, premises considered, petitioner prays:

1. That a hearing be had in this matter on an early date and at the hearing, petitioner receive the right to possession and, if necessary, a writ of possession issue to the Sheriff of ____________ County to put the petitioner in possession, and

[or if jury of view procedure is requested ]

1. That a hearing be held on this matter on an early date and at that hearing the
court issue a writ of inquiry of damages and appoint a jury of view;

2. That an Order of Reference be entered to determine the amount of taxes due
petitioner on said property and said amount to be paid to petitioner;

3. That all additional proceedings be had in this matter and at the final hearing
of this cause, petitioner, its successors and assigns, be decreed the property
interests set out above; and

4. That petitioner have any and all additional relief to which it is entitled including
the assessment of costs as provided by
Tennessee Code Annotated § 29-17-912.

Respectfully submitted,

____________________________________
Counsel for Petitioner,
City/Town of ________________________


Cost Bond

(Requirements for cost bond language vary by jurisdiction.)

Form 2A

SERVICE BY SHERIFF

To ( identify name and address of respondents )

NOTICE

Take NOTICE that on the ______ day of _____________, 20___, Petitioner ______________ filed a petition in this court against you, praying for the condemnation of property rights in the real estate fully described in the petition, a copy of which accompanies this NOTICE. You are further notified that the petition will be presented to the court for hearing at
9 a.m. on the _________ day of _____________, 20___, in the Circuit Court, to determine whether petitioner should be granted an order of possession, entitling it to immediate possession of the property rights described in the petition.

You must plead, answer, or except to the petition as provided by law, or a judgment will be taken as confessed against you and the matter proceeded with as provided by law.

(Include following two paragraphs if using supplementary procedure )

You are further notified, pursuant to Tennessee Code Annotated § 29-17-903, that after the expiration of thirty days from the date of giving of this NOTICE, if the petitioner’s right to condemn and acquire the property rights described in the petition is not questioned or contested by written formal objection filed with the clerk of this court and served upon the petitioner’s attorney, the petitioner may take possession of the property rights sought. If necessary to place the petitioner in possession, the court shall issue a Writ of Possession to the Sheriff of ____________ County to put the petitioner in possession of the property rights.

If you desire to contest the taking by condemnation under the laws of eminent domain, you must appear at the time designated after having filed your written formal objection. If you fail to appear or choose not to appear, an Order of Possession will be entered granting to the petitioner the property rights described. This hearing, however, will not be concerned with the value of your property or your interest therein and will not be concerned with the just compensation to which you are entitled.

This ______ day of _____________, 20___.
Circuit Court Clerk

____________________________


By ____________________________
Deputy Clerk

OFFICER’S RETURN

I certify that I served this NOTICE with a copy of the Petition for Condemnation, upon serving the above-named respondent(s), by personally delivering a copy to the respondent(s), this ______ day of _____________, 20___.


SHERIFF OF ______________ COUNTY, TENNESSEE


BY _______________________________________

Form 2B

SERVICE BY MAIL

To ( identify name and address of respondents )

NOTICE

Take NOTICE that on the ______ day of _____________, 20___, Petitioner _______________ filed a petition in this court against you, praying for the condemnation of property rights in the real estate fully described in the petition, a copy of which accompanies this NOTICE. You are further notified that the petition will be presented to the court for a hearing at 9 a.m. on the ______ day of _____________, 20___, in the Circuit Court, to determine whether petitioner should be granted an order of possession, entitling it to immediate possession of the property rights described in the petition.

You must plead, answer, or except to the petition as provided by law, or a judgment will be taken as provided by law.

(Include the following two paragraphs if using supplementary procedure )

You are further notified, pursuant to Tennessee Code Annotated § 29-17-903, that after the expiration of thirty days from the date of the giving of this NOTICE, if the petitioner’s right to condemn and acquire the property rights described in the petition is not questioned or contested by written formal objection filed with the clerk of this court and served upon the petitioner’s attorney, the petitioner may take possession of the property rights sought. If necessary to place the petitioner in possession, the court shall issue a Writ of Possession to the Sheriff of ___________ County to put the petitioner in possession of his property rights.

If you desire to contest the taking by condemnation under the laws of eminent domain, you must appear at the time designated after having filed your written formal objection. If you fail to appear or choose not to appear, an Order of Possession will be entered granting to the petitioner the property rights described. This hearing, however, will not be concerned with the value of your property or your interest therein and will not be concerned with the just compensation to which you are entitled.

This ______ day of _____________, 20___.
Circuit Court Clerk

____________________________

By ____________________________
Deputy Clerk


CERTIFICATE OF SERVICE

This is to certify that this NOTICE and a copy of the Petition for Condemnation has been mailed to all respondents, by U.S. Certified Mail, this ______ day of _____________, 20___.


_______________________
Attorney for Petitioner

Form 3

MOTION FOR NOTICE BY PUBLICATION


Petitioner ______________________ pursuant to Rule 4.05 of the Tennessee Rules of Civil Procedure, Tennessee Code Annotated §§ 29-16-105 and 21-1-203, respectfully moves for an Order that notice of the Petition for Condemnation filed upon the respondents, ________________, be made by publication and for grounds states that the residence of these respondents is unknown and cannot be ascertained upon diligent inquiry. Petitioner relies on the affidavit of its counsel of record, ________________, filed in support of this motion.


Respectfully submitted,

_______________________ Attorney for Petitioner

Form 4

AFFIDAVIT OF ________________ (CITY ATTORNEY)


State of Tennessee
County of _________________


I, _______________, being first duly sworn, state as follows:

1. Affiant is a properly licensed attorney in the state of Tennessee and is the attorney for the petitioner, ____________________, in this case.

2. Affiant states that the property rights sought are part of certain property known as _____________________ (describe property).

3. Affiant states that he has made numerous inquiries and has obtained an extensive title search in attempts to locate the respondent(s), ______________. A copy of that title search is attached as Exhibit A.

4. Affiant states that he has made a diligent effort to locate the (names/addresses) of the respondent(s) and has been unsuccessful.

FURTHER, AFFIANT SAITH NOT.

_________________________________


Sworn to and subscribed before me a Notary Public, this ______ day of _____________, 20___.


_________________________
Notary Public

My Commission Expires ___________________

Form 5

ORDER OF PUBLICATION

It appearing to the court from the affidavit of _________________, attorney for the petitioner, that respondent(s), _________________, are ( unknown or non-residents of the county of _________ and the state of Tennessee ) and ordinary service of process cannot be had upon them;

It is ORDERED, that publication of this order be made for four consecutive weeks in the _________________, ( specify newspaper ) a newspaper published in ___________ County, Tennessee, notifying the respondent(s), __________________, that they are required to answer to make defense to the Petition for Condemnation in the office of the Circuit Court Clerk of _____________ County, Tennessee, within 30 days after the fourth weekly publication of this order and that, upon their failure to do so, the Petition for Condemnation will be taken as admitted by them and the case set for hearing without their presence.

_____________________________
Circuit Court Judge


Approved for Entry


____________________________
Attorney for Petitioner

Form 6

ORDER OF POSSESSION

This cause was heard on the ______ day of _____________, 20___, to determine whether the petitioner should be granted possession of the respondents’ property. Based upon the pleadings, exhibits, as well as the entire record,

IT IS THEREFORE ORDERED by the court that petitioner have and receive title and possession to the property rights sought to be condemned, and that a Writ of Possession issue, if necessary, in order to put petitioner in possession of the property, being more particularly described as follows:

[ insert legal description of property being acquired ]

IT IS FURTHER ORDERED, ADJUDGED, and DECREED that this matter be referred to the clerk of the court to determine past due and unpaid county/municipal taxes that are a lien upon the property.

The clerk of this court will make out and certify to the petitioner, _______________, a copy of this Order of Possession.

ALL FURTHER MATTERS ARE RESERVED.

ENTERED this ______ day of _____________, 20___.

________________________
Circuit Court Judge

Approved for Entry


_______________________
Attorney for Petitioner

Form 7

ORDER SUSTAINING PETITION
FOR CONDEMNATION AND ORDERING WRIT OF INQUIRY

This cause came on to be heard on the ______ day of _____________, 20___, before the Honorable __________________, Judge of the ________________ Circuit Court of ____________ County, Tennessee, upon the Petition for Condemnation and Notice to respondents. It appearing to the court that the petition and notice have been served, or publication made, as required by law, and that the cause is before the court on application to sustain a petition and for a writ of inquiry of damages and the appointment of a jury of view; and it further appearing that the respondents are before the court and that petitioner has the legal power and authority to acquire [ insert the interest sought to be condemned ] under the eminent domain laws of the state of Tennessee to the following described property located in _____________ County, Tennessee:

[insert a description of the property ]

Respondents’ right of trial by petit jury to determine the amount of compensation to which they are entitled for this taking is not affected by the transfer of title to petitioner.

IT IS ORDERED, ADJUDGED, and DECREED:

1. That the Petition for Condemnation of the property described above is sustained.

2. That the following persons are nominated and appointed to act as a Jury of View as provided by the eminent domain laws of Tennessee:

1.
2.
3.
4.
5.
Alternate:

3. That the clerk shall issue a writ of inquiry to the sheriff commanding him to summons the Jury of View to appear in open court on the ______ day of _____________, 20___, at _________, and no other notice need be given, there to be impaneled and sworn, after which they will proceed immediately to the property sought to be condemned and examine it, hear testimony of witnesses, but no argument of counsel, and set apart by metes and bounds the land to be condemned, and assess damages as required by law, reduce their report to writing and deliver it to the sheriff, who will make his return to the court.

This ______ day of _____________, 20___.

________________________________
Circuit Court Judge


Approved for Entry


__________________________
Attorney for Petitioner

Form 8

WRIT OF INQUIRY


State of Tennessee
County of ___________________

TO THE SHERIFF OF _____________________ COUNTY, TENNESSEE

A petition has been filed in the Circuit Court of ___________________ County, Tennessee, for the condemnation of certain rights described fully in the petition.

Now, therefore, as provided by the eminent domain laws of the state of Tennessee, you are commanded to summon the following to act as a Jury of View and to appear on the ______ day of _____________, 20___, at _______ o’clock in open court in the Circuit Court of _____________________ County, Tennessee, at [ insert the place where the court sits ]:

1.
2.
3.
4.
5.
Alternative:

The Jury of View will be sworn and instructed, and will go immediately to the premises, hear the testimony of witnesses, but no argument of counsel, and set apart by metes and bounds the property to be condemned, and inquire and assess the damages resulting from this taking, and report its findings in writing by each member of the Jury of View or a majority of them, which report shall be delivered to you and by you returned to this court.

IN WITNESS WHEREOF, I have hereunto set my hand and seal of this court on the ______ day of _____________, 20___.

_____________________________________________
[insert herein the name of the clerk of court ]



By _______________________
(Clerk or Deputy Clerk)


Form 9

REPORT OF THE JURY OF VIEW

We, the Jury of View, summoned, appointed, and sworn, as provided by the laws of the state of Tennessee, and by orders of the court made and entered in this proceeding were directed to lay off by metes and bounds the property interests condemned, and to inquire and assess damages to the property interest taken by Petitioner ______________. We report as follows:

We went upon the property condemned on the ______ day of _____________, 20___, and examined this property by personal inspection and heard evidence, but no argument of counsel, of the value of the property interests to be condemned, and we allot and set apart to the petitioner, property situated in ________________ County, Tennessee, and described as follows:

[insert a description of the property taken ]

And we find the fair cash value of the property condemned as being $_____, and that this sum consists of the following amounts:

_______________ Fair market value of land taken
_______________ Incidental damages

The members of the Jury of View met on the following dates and respectfully request a fee for each.

Dates _________________
_________________

This ______ day of _____________, 20___.

_________________________________
_________________________________
_________________________________
_________________________________
Members of the Jury of View

Received from the Jury of View and returned to the clerk of the court this ______ day of _____________, 20___.

Sheriff of __________________ County
___________________________________
BY Deputy Sheriff
Form 10

ORDER CONFIRMING REPORT OF THE JURY OF VIEW

It appearing to the court that the Jury of View having met and reported to the court that the fair cash value of the property rights condemned is $_______ ( Optional: including incidental damages to the residue of $______, ) and having deposited with the clerk of this court the sum of $__________.

It is therefore ORDERED, ADJUDGED, and DECREED:

1. That the report of the Jury of View is confirmed both as to the appropriation of the property rights condemned and the award of damages resulting from the taking, and that petitioner, _______________, upon payment to the clerk for the use of respondents the amount of damages assessed by the Jury of View and all costs of this cause, is adjudged to have acquired the following described property:

[insert a description of the property rights being condemned ]

and that the property rights thus acquired and possession is divested out of respondents and vested in petitioner, ______________, and any other liens or encumbrances for taxes or the claim of any party are transferred to the funds deposited or secured.

2. That respondents [insert the name or names of all respondents ], have and recover of petitioner the sum of $_______ the same being the fair cash value of the property rights taken, for which petitioner has paid into this court the sum of $__________.

3. That respondents are entitled to interest at the rate of two percent (2%) above prime on the amount of $_______, that being the difference between the $_______, deposited as tender and the Jury of View award, from the date of taking, [ insert the date of taking ], until the sum is paid into court.

4. That the members of the Jury of View be paid the sum of $_______ each for their services in this cause, the total sum to be paid to the clerk of this court by petitioner as part of the costs in this cause and that the clerk shall distribute the sum to the members of the jury.

5. That this cause be referred to the clerk for a determination of the taxes that constitute a lien on the property in accordance with Tennessee Code Annotated § 26-5-108(b).

This the ______ day of _____________, 20___.

_________________________
Circuit Court Judge
Approved for Entry
________________________Attorney for Petitioner

Form 11

APPEAL FROM FINDING OF THE JURY OF VIEW


Petitioner, _________________, excepts to the finding and report of the Jury of View that the fair cash value of the property rights condemned is $___________, and appeals this finding and requests a trial before a petit jury in the usual way, pursuant to
Tennessee Code Annotated § 29-16-118.


By _______________________
Attorney for Petitioner


I am surety for costs not to exceed $__________________


By _______________________
Attorney for Petitioner

Form 12

NOTICE OF DISMISSAL


Comes to the petitioner, pursuant to Rule 41.01 of the Tennessee Rules of Civil Procedure and files this notice of voluntary dismissal as to the Respondent ________________.



Respectfully submitted,

___________________________
Attorney for Petitioner

Form 13

ORDER OF DISMISSAL


Petitioner, _________, having given notice of voluntary dismissal pursuant to Rule 41 of the Tennessee Rules of Civil Procedure against Respondent _________________.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that this case is DISMISSED as against the respondent, _______________, and that the moneys deposited into court shall be refunded to petitioner, minus the court costs.

Entered this ______ day of _____________, 20___.


_______________________
Circuit Court Judge


APPROVED FOR ENTRY


_______________________________
Attorney for Petitioner

Form 14

AGREED FINAL ORDER


This cause having been compromised and settled, as evidenced by the signatures of counsel for petitioner and the signatures of the respondents, and the court being duly and sufficiently advised;

It is ORDERED, ADJUDGED, and DECREED by the court that the respondents have and recover the sum of $_______ the same being the fair cash market value of the property described below, petitioner having paid into court $_________ at the time of filing the Petition for Condemnation.

It is further ORDERED, ADJUDGED, and DECREED by the court that all of the title to the property described below be divested out of respondents and all other persons claiming any adverse interest in it and is vested in petitioner ____________ in fee simple, the property being more particularly described as follows:

[ description of the property ]

It further appearing to the court that this property may be subject to lien for taxes due, interest and penalty, if any, owing to ___________________ ( county and/or municipality in which property located ) and in accordance with Tennessee Code Annotated § 26-5-108(b), the clerk of the court, prior to the payment of any part of the judgment to respondents, shall ascertain whether there are any taxes due and unpaid that are lien upon the property, and shall issue to each of the officials charged with the collection of any taxes that might be a lien on the property a statement, giving the style and number of this cause, a description of the property, and the name of the party out of whom title is divested; whereupon each of these officials shall certify to the clerk an itemized statement of taxes, interest and penalty, if any, that were a lien upon the land as of the date of entry of this Agreed Final Order.

It is therefore ORDERED, ADJUDGED, and DECREED that the clerk is directed to pay out of the money deposited by the petitioner any unpaid taxes that may be determined to be owing by the above references, and the clerk shall pay any remaining funds to the respondents.

It is further ORDERED by the court that the costs in this cause be taxed against the petitioner for which execution may issue if necessary.

The clerk of this court will make out and certify to the petitioner, ______________, a copy of this judgment together with a cost bill for the lawful costs of this cause, for payment by the Petitioner _____________.

Entered this ______ day of _____________, 20___.


_______________________
Circuit Court Judge


Approved for Entry


_______________________
Attorney for Petitioner


________________________
Attorney for Respondents

PRE-TRIAL CHECK LIST

Open office file.

Make sure procedures required under Relocation Act have been complied with.

Bring title information up to date.

Check to see which civil district property is located.

Check whether taxes due require naming taxing authority as party defendant.

Check whether tenants must be named as parties defendant.

Obtain aerial photograph of subject property.

Obtain planning commission plat of subject property.

Obtain engineer’s drawing showing area of taking.

Arrange for appraisal.

Establish tentative date of taking and arrange with appraisers and photographer for pre-trial conference at site of property on date of taking.

Obtain project description for use in petition.

Draft petition.

Draft notice and, if necessary, order of publication and supporting affidavit.

Draft order of condemnation and appropriation.

Proofread all pleadings.

File petition, make deposit, and arrange for service.

Obtain deposit receipt.

Pre-hearing, check on service of process.

Hearing to obtain order of condemnation and appropriation.

Signing and entry of order of condemnation and appropriation.

Furnish copy of order of condemnation and appropriation to adversary counsel.

Pre-trial conference at site of property with appraiser; obtain photographs of subject property, immediately surrounding property, and comparable sales; locate comparable sales on planning commission map.

Request copies of adversary appraisals.

Summarize for trial use all appraisals.

Explore settlement possibilities with adversary counsel.

Take any necessary depositions and file them with clerk.

Prepare pre-trial brief as required or desired and requests for special instructions.

Prepare all exhibits for use at trial.

Pre-trial conference with engineering witness, if any.

Pre-trial conference with judge and adversary counsel.

POST-TRIAL CHECK LIST

Draft final judgment.

Proofread final judgment.

Submit draft final judgment for description check.

Obtain signatures to final judgment and see to entry.

Obtain statements from appraisers, court reporters, suppliers of exhibits, and photographers.

Approve statements and submit for payment.

Obtain, review, and approve bill of costs.

Obtain instructions regarding appeal.

Obtain certified copy of final judgment.

Obtain parcel number for final judgment.

See to registration for final judgment.

Advance cost of registration of final judgment and obtain receipt.

Forward certified copy of final judgment to appropriate official.

Pay judgment and obtain receipt.

Pay costs and obtain receipt.

Prepare statement for services.

Close office file.