As noted in a previous section, 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] A claim for inverse condemnation can be asserted against a local governmental agency^[2] or a private entity possessing eminent domain power. When a private entity that possesses eminent domain power "takes" property, the property owner also may bring an action for trespass or nuisance in a proper case and is not limited to proceeding by the statutory method prescribed for inverse condemnation actions.^[3] The property owner who sues for damages in a trespass action may also recover punitive damages in an appropriate case.^[4] On the other hand, when a governmental entity "takes" property, sovereign immunity often prevents the pursuit of other remedies. For instance, when a nuisance constitutes a "taking," an inverse condemnation action is the exclusive remedy.^[5] Similarly, the Governmental Tort Liability Act bars actions for intentional trespass,^[6] as well as claims for punitive damages.^[7]

Inverse condemnation claims have been classified by the courts into two general categories: (1) physical takings, and (2) regulatory takings.^[8]

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, ^[9] or where an entity with the power of eminent domain appropriates private property for public use without instituting formal condemnation proceedings. ^[10] As described in the next section, there are two classifications of physical takings: physical occupation takings and nuisance-type takings.^[11] Both classifications of physical takings require a purposeful or intentional act by the entity possessing eminent domain power.^[12]

Regulatory takings are deemed takings "per se" when regulations compel property owners to suffer permanent physical invasion of their property or when regulations deny "all economically beneficial use" of land.^[13] Outside these two "relatively narrow" categories, regulatory challenges are governed under the standards set forth in Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978),^[14] as discussed in a later section.

Notes:
^[1] Phillips v. Montgomery Cnty., 442 S.W.3d 233 (Tenn. 2014); Johnson v. City of Greeneville, 222 Tenn. 260, 435 S.W.2d 476 (1968). For application of class action provisions to inverse condemnation actions, see Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632 (Tenn. 1996).

^[2] An inverse condemnation action cannot be brought against the State. See Tenn. Code Ann. § 9-8-307(a)(1)(V). When the State "takes" property for projects on state-maintained highways, suit is properly brought against the county in which the property is located. Hise v. State, 968 S.W.2d 852 (Tenn. Ct. App. 1997); Jones v. Cocke Cnty., 57 Tenn. App. 496, 420 S.W.2d 587 (1967).

^[3] Meighan v. U.S. Sprint Communications Co., supra (trespass); Windrow v. Middle Tenn. Elec. Membership Corp., 376 S.W.3d 733 (Tenn. Ct. App. 2012) (nuisance).

^[4] Meighan v. U.S. Sprint Communications Co., supra.

^[5] Pleasant View Util. Dist. v. Vradenburg, 545 S.W.2d 733 (Tenn. 1977); Monday v. Knox Cnty., 220 Tenn. 313, 417 S.W.2d 536 (1967); Windrow v. Middle Tenn. Elec. Membership, supra; Jones v. L & N R. Co., 617 S.W.2d 164 (Tenn. Ct. App. 1981).

^[6] See Tenn. Code Ann. § 29-20-205(2).

^[7] Tipton Cnty. Bd. of Ed. v. Dennis, 561 S.W.2d 148 (Tenn. 1978).

^[8] Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Yee v. City of Escondido, 503 U.S. 519 (1992); Phillips v. Montgomery Cnty., supra.

^[9] Lewisburg & N. R. v. Hinds, 134 Tenn. 293, 183 S.W. 985 (1916); Morgan Cnty. v. Neff, 36 Tenn. App. 407, 256 S.W.2d 61 (1952); Carter Cnty. v. Street, 36 Tenn. App. 166, 252 S.W.2d 803 (1952); Knox Cnty. v. Lemarr, 20 Tenn. App. 258, 97 S.W.2d 659 (1936); Shelby Cnty. v. Dodson, 13 Tenn. App. 392 (1930).

^[10] Pleasant View Utility District v. Vradenburg, supra; Knox Cnty. v. Moncier, 224 Tenn. 361, 455 S.W.2d 153 (1970); Johnson v. City of Greeneville, supra; Burchfield v. State, 774 S.W.2d 178 (Tenn. Ct. App. 1988); Osborne Enters., Inc. v. City of Chattanooga, 561 S.W.2d 160 (Tenn. Ct. App. 1977); Jones v. Cocke Cnty., supra.

^[11] Edwards v. Hallsdale-Powell Util. Dist., 115 S.W.3d 461 (Tenn. 2003); Windrow v. Middle Tenn. Elec. Membership Corp., supra.  

^[12] Edwards v. Hallsdale-Powell Util. Dist., supra.   

^[13] Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005); Phillips v. Montgomery Cnty., supra.

^[14] Lingle v. Chevron U.S.A., Inc., supra.