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The Right to Take

Reference Number: MTAS-1286
Reviewed Date: 10/05/2023

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.

[1] Town of Collierville v. Norfolk S. Ry. Co., No. W2001-02391-COA-R3CV, 2003 WL 21026936 (Tenn. Ct. App. Apr. 22, 2003);Town of Collierville v. Norfolk & Southern Railway, 1 S.W.3d 68 (Tenn. App. 1998); Harper v. Trenton Housing Authority, 197 Tenn. 257, 271 S.W.2d 185 (1954); City of Nashville v. Dad's Auto Accessories, 154 Tenn. 194, 285 S.W. 52 (1926); Tennessee Central Railroad Co. v. Campbell, 109 Tenn. 640, 75 S.W. 1012 (1902); Shelby County v. Armour, 495 S.W.2d 816 (Tenn. Ct. App. 1971); Morgan County v. Jones, 12 Tenn. App. 197 (1930).