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Text of Document: Well, you could have knocked me over with a feather when I read those cases involving eminent domain that you cited to me. I knew that easements obtained through the exercise of eminent domain reverted to the property owners, but was absolutely and positively convinced that the property acquired in fee simple was owned by the government the same as any person owns property, and that the government had the same rights as any other person to sell or otherwise dispose of the property.
Of course, the threshold question in your case is whether the city even acquired a fee simple title to the property condemned, but never used by the city, for use as a fire station. The law in Tennessee even on that point seems in a state of utter confusion. It is the law in many jurisdictions, including Tennessee, that the condemnor obtains only the interest in the land necessary to the proposed public use. However, it is also said in Stroud v. State, 279 S.W.2d 82 (Tenn. 1955), that:
Furthermore, it seems to be the rule generally that where the Statute expressly or by necessary implication declares that a fee simple title to land to be taken, the condemnor will acquire such a fee. [Citing Tennessee Power Co. v. Rust, 78 Tenn. Civ. App. 368; 18 Am.Jur., Sec. 114, p 740; 30 C.J.S., Eminent Domain, sec. 450, pp. 200, 201; Ann. Cas. 1918A. p. 806.]
As far as I can determine, none of the statutes under which a city might condemn property for the construction of public buildings, including a fire station, expressly authorize the condemnation of the fee. Unfortunately, I can find no Tennessee cases on the question of whether any such statute by “necessary implication” declares that a fee can be taken for such purposes. In Stroud, the Court held that the state could condemn property in fee simple for a highway. However, neither that case, nor any other one I can find, contains any guidelines for determining when a government takes a fee and when it takes an easement. It is said in 3 Nichols On Eminent Domain, 3rd. ed., sec. 11.11, that:
Ordinarily a fee is taken for public structures, although the decisions are not always in harmony. In the case of schools, for example, some courts have held that a fee is property taken, others limit the taking to an easement, and still others have held that the interest acquired is a base or qualified fee, conditioned upon the continuance of the use for school purposes.
It has been held that a fee may be taken for a courthouse building, a public market, a dock, or a ferry slip. When fee simple title is acquired, the condemenee retains no interest in the land. The condemnor has the right to dispose of the property, or to make other use of it, even when the property acquired was never put to its intended use. [Emphasis is mine.] But it has been held that land taken for a hospital cannot later be used for inconsistent purpose, such as for a correctional facility without legislative authorization.
I have read and re-read the cases you cited, and every Tennessee case I can find on the nature of the title acquired by eminent domain, and concluded that the Tennessee courts apparently have never directly addressed two additional related questions:
1. What is the nature of the title to property the government condemns in fee simple for the construction of public buildings where the property is condemned for a specific public use?
2. Does property condemned in fee simple for a specific public use revert to former property owner if the property is never used for a public purpose, or the public use is extinguished.
I know of no condemnation in which the petition for condemnation does not contain the specific public use. In fact, the broad Tennessee condemnation statute, Tennessee Code Annotated, section 29-16-101 et seq. requires the petition to specify “The object for which the land, etc., is wanted.” [Tennessee Code Annotated, section 29-16-104.]
Years ago, the city paid $45,000 an acre for the property in question. It seems far-fetched to me that such a figure does not buy the property in fee simple rather than an easement, even if a fire station was not built on the land. In Kornman Co. v. Metropolitan Government, 417 S.W.2d 793 (Tenn. 1967), the Court made unhappy noises over Kornman’s attempt to argue that the state had abandoned the easement it had purchased for the construction of a bridge and for that reason the property had reverted to Kornman. Kornman had received $243,000 for the lot in question, $93,600 of which was compensation for the land. The Court pointed out that, “It would be against the public policy to force the State to defend after it has through lawful means condemned and paid the full value of the property condemned.” Unfortunately, the Court’s elaboration on that point is not particularly helpful:
Of course, it could be argued that this may be begging the question...because it is said as it stands that the allegations that the State has abandoned this and thus having abandoned it the title reverts to the appellee. This, of course, would be true assuming there is an abandonment...but looking at it from a practical standpoint we know that even though the State merely condemned in the first instance an easement, that in a condemnation proceeding the damages are fixed by a jury at an amount equal to the value of the fee...and in this case a large building was wrecked by the State as if the whole thing would be used, we cannot put our stamp of approval on allowing the State officers to be sued after the State had acquired the property by a legitimate condemnation suit and paid the damages. To allow the state officers to then be sued for any little strips here and there along the highways in building the various bridges and highways, would take extra courts and the number of people who would be required to look after and do these things would be prohibitive. Then, too, we know as a practical proposition that if properties have been abandoned by the State after they have been taken by legitimate condemnation that sooner or later the State by property legislation will consent to the proper owner through proper proceedings having their property back. In other words, what we are trying to say is that after there has been a legitimate fair compensation paid for the property even though taken for an easement when there is an alleged abandonment of that easement afterwards, the State should not have to defend the suit without its consent to it. The compensation for this easement taken was for the value of the land as if the fee had been taken. [Citation omitted.] [At 797-98.]
That case involved the acquisition by the State of an easement rather than a fee simple title to the property, and the issue of the abandonment of the easement. But it seems to me that what the Court said about the “practical proposition” of the city having paid the full value of the property for the easement, applies with even more logic to property acquired in fee simple by any government in the exercise of eminent domain.
At the moment I doubt that I can enlighten you with respect to what the law is in Tennessee on those unanswered questions; you have probably read all the cases, too. However, I can direct you to Nichols On Eminent Domain, 3rd ed. You will not be surprised to learn that the cases in these areas go all different directions. I have enclosed portions of the treatise that might help you answer those questions. My research of those questions is also continuing. I will keep you posted. |