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Takings Prior to Condemnation

Reference Number: MTAS-1308
Reviewed Date: 10/06/2023

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 enjoin [51] or eject [52] the condemner who has taken the property without instituting condemnation proceedings.

[45] Rogers v. City of Knoxville, 40 Tenn. App. 170, 289 S.W.2d 868 (1955).

[46] Rogers v. City of Knoxville, supra.

[47] Armistead v. Clarksville-Montgomery County School System, 222 Tenn. 486, 437 S.W.2d 527 (1969).

[48] Zirkle v. City of Kingston, 217 Tenn. 210, 396 S.W.2d 356 (1965).

[49] Hopper v. Davidson County, 206 Tenn. 393, 333 S.W. 2d 917 (1960).

[50] City of Shelbyville v. Kilpatrick, 204 Tenn. 484, 322 S.W.2d 203 (1959).

[51] Pleasant View Utility District v. Vradenburg, supra; Zirkle v. City of Kingston, supra; Sweetwater Valley Memorial Park, Inc. v. City of Sweetwater, supra; Armstrong v. Illinois Central Railroad Co., 153 Tenn. 283, 282 S.W. 382 (1926); Rogers v. City of Knoxville, supra.

[52] Emory v. City of Knoxville, 214 Tenn. 228, 379 S.W.2d 753 (1964); Tennessee Coal, Iron & Railroad Co. v. Paint Rock Flume & Transportation Co., 128 Tenn. 227, 160 S.W. 522 (1913); Doty v. American Telephone & Telegraph Co., 123 Tenn. 329, 130 S.W. 1053 (1910); Rogers v. City of Knoxville, supra.