Harper v. Trenton Housing Authority

• Decision Date: 12 October 1954
• Citation: 274 S.W.2d 635,38 Tenn.App. 396
• Parties: H. N. HARPER and wife, Cledie B. Harper, Petitioners, v. TRENTON HOUSING AUTHORITY, Respondent. Finis C. HARPER and wife, Nell Harper, Petitioners, v. TRENTON HOUSING AUTHORITY, Respondent. Joe W. STOCKTON and wife, Waneta Stockton, Petitioners, v. TRENTON HOUSING AUTHORITY, Respondent.
• Court: Tennessee Court of Appeals

Page 635

274 S.W.2d 635

38 Tenn.App. 396

H. N. HARPER and wife, Cledie B. Harper, Petitioners, v. TRENTON HOUSING AUTHORITY, Respondent.

Finis C. HARPER and wife, Nell Harper, Petitioners, v. TRENTON HOUSING AUTHORITY, Respondent.

Joe W. STOCKTON and wife, Waneta Stockton, Petitioners, v. TRENTON HOUSING AUTHORITY, Respondent.

Court of Appeals of Tennessee, Western Section, at Jackson.

Oct. 12, 1954 Certiorari Denied by Supreme Court Nov. 16, 1954.

Adams & Adams, Humboldt, L. L. Harrell, John C. Nowell, Jr., Trenton, for petitioners.

Gayle Malone, Holmes & Holmes, Trenton, for respondent, Trenton Housing Authority.

CARNEY, Judge.

These three condemnation cases were consolidated and have been before this Court previously on writs of certiorari and supersedeas.

On October 7, 1953, this Court rendered an opinion adversely to the petitioning landowners insofar as their contention and Assignment of Error that the Trenton Housing Authority was without legal authority to condemn their property and that the Trenton Housing Authority and its officials had been guilty of a palpable abuse of discretion in determining to condemn the three parcels of land described in the pleadings and belonging to the petitioners.

This Court in said opinion further decided favorably to the Assignment of Error of the petitioners to the effect that an order entered of record by the Trial Judge of the Circuit Court of Gibson County, of date March 7, 1953, was ineffective because entered out of term time and without notice to attorneys for the petitioning landowners.

This order of date March 7, 1953, purported to overrule the exception of the plaintiff, Trenton Housing Authority, to the report of the jury of view; confirmed the report of the jury of view; granted an appeal on the question of damages to the next term of Circuit Court; and finally adjudged the Trenton Housing Authority to own and hold the land sought to be condemned upon condition that the Housing Authority give proper bond in double the amount of the assessment by the jury of inquest, and conditioned to abide by and perform the final judgment in the premises.

After the entry of our opinion of date October 7, 1953, and judgment thereon, the landowners filed petition for certiorari and supersedeas to the Supreme Court of Tennessee. The Petition for Certiorari was denied and first and second Petitions to Rehear the Petition for Certiorari were filed with the Supreme Court.

In a memorandum by Mr. Justice Tomlinson, Tenn., 271 S.W.2d 185 denying the Petition for Certiorari on the Second Petition to Rehear, it was stated that the Court of Appeals had been premature in deciding the right of the Trenton Housing Authority to condemn the lands in question, even though both parties asked for an adjudication on said question in order to obtain an early disposition of the matter. The Supreme Court was of the opinion that since this Court had determined that there had been no validity entered order vesting and divesting title under the condemnation proceedings in the Circuit Court, this Court should have simply remanded the cause to the Circuit Court of Gibson County for further proceedings therein.

The Supreme Court in its memorandum further stated that if and when these cases should again come to the Court of Appeals, this Court should consider the same as if no prior decisions on the right to take had been made.

Accordingly, the cause was remanded to the Circuit Court of Gibson County and orders purporting to vest and divest title to the land sought to be condemned have been entered.

Under the authority of Tennessee Central R. R. Co. v. Campbell, 109 Tenn. 640, 75 S.W. 1012, Presiding Justice Avery of this Court granted writs of certiorari and supersedeas on petition of the landowners.

The record in the Court below has been filed in this Court, along with Assignments of Error and Brief of the petitioners and the Reply Brief of the respondents, and we now have the cases for decision.

These three condemnation cases were consolidated and heard together, as they involve contiguous property, and the three parcels of real estate actually constitute one lot, containing 3.03 acres. The Trenton Housing Authority, of Trenton, Tennessee, was incorporated under the Housing Authorities Law, Section 3647.1 et seq. of the Code of Tennessee. The Housing Authority decided to construct two new housing projects for the Town of Trenton, Tennessee.

One project is known as Tennessee Project 25-1 and provides for the construction of forty housing units for white occupants, and another project called Tennessee Project 25-2 contemplates the construction of a housing project to house thirty-two low income Negro families in Trenton, Tennessee, Negotiations for private purchase failed, and it became necessary for the Housing Authority to institute condemnation proceedings to obtain the necessary real estate upon which to erect each project.

It is sought in these three cases to condemn the 3.03 acre tract of land owned by the three defendants, H. N. Harper et ux., Finis C. Harper et ux., and Joe W. Stockton et ux., for the erection of Tennessee Project 25-2 to be occupied by thirty-two Negro families of the low income bracket. The suits were filed on November 3, 1952, by the Housing Authority against the respective owners of said three tracts of land alleging that because of the location, size, shape, and topography, the Trenton Housing Authority has found and has been instructed to use the particular real estate sought to be condemned in the public interest of economy, convenience, and use, and praying for juries of view, divestiture of title, etc.

The defendant property owners, all of whom are white, vigorously objected to the condemnation of the property and the erection of the Negro housing project on the particular tract of land sought to be condemned for the main reason that they felt that the placing of this housing project on this particular plot of ground would cause a great depreciation in value of the other property in the neighborhood owned by these defendants and other white people, and they were strongly joined in these objections by other citizens of the particular neighborhood and the Town of Trenton.

The legal defenses filed by these defendants to the petition of condemnation were:

(1) That it was not in the public interest and welfare that the property be condemned;

(2) That it was not necessary to the public interest, economy and convenience that this particular property be condemned and used as a Negro housing project.

(3) Defendants are advised and therefore charge that the petitioner has not sought to remedy the alleged unsanitary and unsafe dwelling accommodations or conditions by ordinary operations of private enterprise; that the petitioner has no plan for clearance, replanning, or reconstruction of any blighted or unsanitary or unsafe housing conditions, but seeks the property described in the petition, together with other property, which is vacant property, without any housing located thereon; that it is the declared purpose of the Act of the Legislature under which the petitioner seeks to act, that overcrowded, congested, unsafe or unsanitary dwelling accommodations be demolished and replaced by safe and sanitary dwelling accommodations for persons of low income, and petitioner has not sought to replace any such housing, and defendants aver on unformation and belief that it has no intention of doing so.

(4) Defendants charge that the petitioner is and has been guilty of palpable abuse of power and discretion delegated to it by the Legislature, by an attempted appropriation of the real estate in question, in utter disregard of the Act and housing conditions described in the paragraph immediately above, and therefore should be denied the right to acquire this property by condemnation.

On February 11, 1953, the consolidated cases were heard by the Court, by consent at Chambers, upon the petitions of condemnation, the answers of the defendants, and the testimony of the witnesses in open Court, and the Trial Judge adjudged that the defendants had failed to establish either in law or in fact that there had been a palpable abuse of discretion by the plaintiff, Housing Authority, in its exercise of the right of eminent domain, and that the Housing Authority had the right to take the designated property, and ordered the issuance of Writs of Inquiry from the Clerk to appoint a jury of view for the purpose of assessing the amount of compensation and damages due each of the defendants for the taking of the subject property, to which action the defendants excepted. The Court also in the same order overruled defendants' motion for a new trial and disallowed the defendants' prayer for an appeal to the Court of Appeals from this order.

Writs of Inquiry were issued by the Clerk, and a jury of view was empanelled and sworn on March 4, 1953, by consent, and said jury of view made written report fixing the amount of compensation and damages to each defendant.

On September 23, 1954, at an adjourned term of the Circuit Court of Gibson County, an Order was entered referring to the procedendo of the Court of Appeals in this cause and further overruling exceptions of Trenton Housing Authority to the report of the Jury of View in each of the three cases, confirming the report of the Jury of View, and granting the Trenton Housing Authority an appeal on the question of damage to the next term of the Circuit Court of Gibson County, in Trenton, Tennessee.

The Order further recited that the Trenton Housing Authority should hold for the use of itself, its successors and assigns, the land described in the report of the Jury of View provided the Housing Authority give bond in double the amount of the assessment of the Jury of View payable to defendants, and conditioned to abide by the perform the final judgment in the premises.

To this action of the Court the defendant landowners...