Brookside Mills, Inc. v. Moulton

• Decision Date: 27 July 1965
• Citation: 55 Tenn.App. 643,404 S.W.2d 258
• Parties: BROOKSIDE MILLS, INC. v. D. W. MOULTON, Commissioner, Department of Highways and Public Works, State of Tennessee.
• Court: Tennessee Court of Appeals

Page 258

404 S.W.2d 258

55 Tenn.App. 643

BROOKSIDE MILLS, INC. v. D. W. MOULTON, Commissioner, Department of Highways and Public Works, State of Tennessee.

Court of Appeals of Tennessee, Eastern Section.

July 27, 1965 Certiorari Denied by Supreme Court Dec. 6, 1965.

Thomas Epstein, New York City, and Ambrose & Wilson, Knoxville, for plaintiff in error, Brookside Mills, Inc.

George F. McCanless, Atty. Gen., J. Malcolm Shull, Asst. Atty. Gen., Nashville, and Earl S. Ailor, Knoxville, for defendant in error, D. W. Moulton, Commissioner.

OPINION

COOPER, Judge.

This is a condemnation proceeding brought by D. W. Moulton, as Commissioner of the Department of Highways and Public Works of the State of Tennessee, to acquire 9840 square feet of land owned by the defendant, Brookside Mills, Incorporated, to be used in the construction of the North-South Expressway through Knoxville, Tennessee, known as Interstate 75.

The property taken was a portion of a 20-acre tract of land located near the geographic center of Knoxville. The south boundary of the 20-acre tract abutted some 620 feet on Baxter Avenue, a major eastwest traffic artery in Knoxville. The southwest corner of defendant's property abutted on Brookside Court, which extended from Baxter Avenue north one block.

On the east, the defendant's property was bounded by the Southern and L. & N. Railways.

On the west, there was no developed access; however, there was potential access, if needed, in that Anderson Avenue, Brookside (sometimes referred to as Sidebrook) Avenue, and Belle Aire Avenue had been decidated to the boundaries of defendant's property. These streets had not been opened, but terminated at Marion Avenue (a major north-south traffic artery) one block to the west of defendant's property.

On the north, access to defendant's property was possible over Cline (Morris) Street to Railroad Street, which terminated at the northeast corner of defendant's property. This street was unpaved, winding, and had a steep grade. There also was potential, but undeveloped and unused, access to the northern boundary of defendant's property over Ashe and Van Streets. These streets, though dedicated to defendant's northern property line, terminated a block away at West Scott Street, which ran east and west.

About the turn of the century, the defendant constructed several buildings on the 20-acre tract, with a total floor space of approximately 500,000 square feet.

Prior to 1955, defendant's property was devoted solely to textile operations, and the only access needed or used was to Baxter Avenue.

In 1955, defendant discontinued the major part of its textile operations, and endeavored to liquidate its machinery and to adapt its buildings to other uses. Prior to the construction of the expressway, defendant had little or no success in renting the buildings on the 20-acre tract as they became available. The record does show that it leased part of its facilities as a tobacco warehouse for two months of each year, and other facilities as a general warehouse; however, the rental income is not clearly set out in the record. The Baxter Avenue access was all that was needed and used for this operation.

The failure to develop the potential access to the west and north was due, in part, to the nature of the business conducted on the property prior to the construction of the Expressway, and, in part to the lay of the land--the land to the west and to the north being much higher than defendant's property.

The Expressway, as constructed, destroyed the potential access to the west and to the north. The southern leg of the Brookside Court, and the lane connecting it to the northern leg, were also closed to permit the construction of a leg of the cloverleaf interchange connecting Interstate 75 to Baxter Avenue. This interchange channels interstate and cross-town traffic into Baxter Avenue directly in front of defendant's property.

The developed and used access to Baxter Avenue and the developed access to Railroad--Cline (Morris) Street were not affected by the construction of the expressway, other than by the increased traffic flow due to the Baxter Avenue interchange, and the increase speed of travel between defendant's property and other parts of Knoxville over the Expressway system.

In the trial court, the defendant did not contest the right of the State 'to take' the property but insisted that, in addition to compensation for the land taken, it was entitled to 'incidental damages of approximately $350,000.00' for loss of access resulting from the Expressway construction. In support of this position, the two principal officers of the corporation, and a real estate agent, testified that the highest and best use for the property was an commercial property, and that the lack of access to the north and to the west restricted the use of several buildings, resulting in a loss of value of from $340,000.00 to $348,000.00.

The State introduced several real estate appraisers who testified that defendant's property, being located on the Baxter Avenue interchange, had more and better access than it had before the construction of the Expressway and was, as the result, more valuable.

The record also shows that in August, 1959, some 4 months after the taking of a part of the defendant's land for the Expressway, the defendant leased 107,000 square feet of floor space to Zayer's Department Store for 'a minimum rental of 50 cents per square foot against 2% Of sales', which rental amounted to approximately $57,000.00 in 1963. Zayre's store is so located that it uses the Baxter Avenue access.

Other rental income, on a short term basis, approximates $33,000.00 per year, with approximately one-half of the available space vacant.

The jury found the value of the 'land taken' to be $3,000.00, and found 'that any incidental damages suffered were fully compensated for by the incidental benefits of the highway construction.' The verdict was approved by the trial court and, on the overruling of defendant's motion for a new trial, this appeal in error resulted.

On appeal, the defendant insists that the trial court 'erred in not granting (defendant's) Motion for a New Trial on the ground that the jury's verdict was clearly against the preponderance of the evidence. * * *' This assignment is not sufficient in law. Our only function is to see if there was any material evidence to support the finding of the jury. Woody v. Cope, 207 Tenn. 78, 338 S.W.2d 551, 4 A.L.R.3d 314; McAmis v. Carlisle, 42 Tenn.App. 195, 300 S.W.2d 59.

Defendant further insists that the trial court erred in failing to instruct the jury that, as a matter of law, the defendant suffered incidental damages as the result of the taking of a portion of its land and the construction of the Expressway, and that there were no incidental benefits. On checking the record, we find that no motion for a directed verdict was made by the defendant. Consequently, the trial court could not be in error for failing to direct a verdict. Further, as shown above, there were material conflicts in the evidence relative to the impact on defendant's property by the loss of potential, but undeveloped access, and the acquisition of ready access to the interstate system. Where such conflict exists, the Court can not direct a verdict but must submit the controverted issues to the jury. See generally Shuler v. Clabough, 38 Tenn.App. 333, 274 S.W.2d 17; Supreme Liberty Life Ins. Co. v. Pemelton, 24 Tenn.App. 576, 148 S.W.2d 1; Osborn et al. v. City of Nashville et al., 182 Tenn. 197 at 203--204, 185 S.W.2d 510, 513.

In its supplemental brief, the defendant points to cases wherein the courts of this State have held the right of access to an abutting street in a property right, and insists that the trial court erred in proceeding on the theory and instructing the jury that, other than compensation for the land taken, the damages suffered by defendant would be incidental and could be offset by special benefits.

'The overwhelming weight of authority (including the courts of this State) recognize(s) * * * that the right of access to and from a public highway is one of the incidents of ownership or occupancy of land abutting thereon, of which the owner cannot be deprived without compensation, whether the fee to the way is in the public or abutter.' 73 A.L.R.2d 656; 43 A.L.R.2d 1074--1079; 18 Am.Jur., Highways, Sections 158, 193 and cases there cited; 29A C.J.S. Eminent Domain § 105; 1 Antieau, Municipal Corporation Law, Section 9.12, p. 607. See also City of Memphis v. Hood, 208 Tenn. 319, 345 S.W.2d 887; Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416; Knox County v. Lemarr, 20 Tenn.App. 258, 97 S.W.2d 659; Shelby County v. Dodson, 13 Tenn.App. 392.

T.C.A. §§ 23--1414 and 23--1537 provide, in substance, that where land or property rights are taken for a public improvement, the trier of fact shall award the value of the land or rights taken without deduction, but permit the offset of incidental benefits resulting to the owner by reason of the proposed improvement against any incidental damages.

Where the property right taken is the right of access to an abutting street, the measure of damages is the difference in the fair cash market value of the defendant's property prior to the taking or impairment of the access and its value...