McGiffin v. City of Gatlinburg
| Decision Date | 05 June 1953 |
| Parties | McGIFFIN et al. v. CITY OF GATLINBURG. 31 Beeler 396, 195 Tenn. 396, 260 S.W.2d 152 |
| Court | Tennessee Supreme Court |
Clyde W. Key, Knoxville, Ogle & Ogle, Sevierville, for complainants.
O. M. Tate, Jr., Knoxville, for defendant.
This is a suit for a declaratory decree stating that complainants are the owners of a certain portion of a street right of way in the City of Gatlinburg, on the theory that the right and title of the defendant thereto has terminated and become extinguished and has reverted to complainants by reason of the facts charged in the bill. The defendant City of Gatlinburg interposed a demurrer which was overruled by the trial court and a discretionary appeal allowed.
The City of Gatlinburg had heretofore filed a condemnation proceedings against complainants Hattie McGiffin and others for the purpose of obtaining a right of way eighty feet in width and running from east to west and twelve hundred feet in length running from north to south in the northern portion of Gatlinburg. Later, the city amended its petition so as to include something over one acre lying east of said eighty-foot right of way and adjacent thereto, which the city undertook and did acquire for the construction of slopes of cuts and fills on the east side of said right of way. Complainants now insist that said street having been constructed within the measurements of said eighty feet in width and twelve hundred feet in length, that said additional acreage of fills and slopes are no longer needed by the city and that said additional acreage has reverted to the complainants as the owners of the fee in said property to which the city only obtained an easement.
It seems that the adjoining property owners have leveled off said additional acreage at a cost of some $15,000 so that this property can be sold for residential purposes.
The question here is whether under said condemnation proceedings the city acquired a fee-simple title to said additional acreage or only an easement.
From a certified copy of the record in the condemnation proceeding it is shown:
(1) That part of the verdict of the jury describing the lands, interest and estate awarded by the jury to the city of Gatlinburg reads as follows:
'That they set apart to the petitioner, the City of Gatlinburg, Tennessee, for street and highway purposes, the following described premises, to-wit: (then follows a metes and bounds description of the eighty foot tract above referred to.)
(2) On April 13, 1951 a final judgment was entered upon the verdict of the jury in the condemnation proceeding which provided as follows:
'It is accordingly further adjudged and decreed that there be and hereby is set aside to the petitioner, City of Gatlinburg, Tennessee the property and estate described and set out in the verdict of the jury of view heretofore entered of record herein, for street and highway purposes * * *.'
There was no appeal from this final judgment.
The City of Gatlinburg paid the amount awarded condemnees and went into possession and constructed entirely within the bounds of the eighty-foot strip a concrete street with concrete sidewalks on each side thereof.
The city paid to the adjoining owners the sum of approximately $18,000.
It is conceded that the city has done no act that would amount to an abandonment of this 1.5 acres. The complainants insist, however, that the city acquired only a terminable easement for a particular purpose--that is, a right of way necessary for the construction of slopes of cuts and fills.
An order dated July 17, 1950 in the condemnation proceedings heretofore mentioned directed that the condemnation petition be amended so as to describe the easement (outside the eighty-foot strip) that the city would be permitted to...
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...302 (involving the extinguishment of an easement by reason of the abandonment and relocation of a street); McGiffin v. City of Gatlinburg, 195 Tenn. 396, 260 S.W.2d 152; Makepeace Bros., Inc., v. Town of Barnstable, 292 Mass. 518, 198 N.E. 922; Central Wharf & Wet Dock Corp. v. Proprietors ......
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...could only acquire an easement of necessity. Easements of necessity are extinguished when the need thereof fails. McGiffin v. City of Gatlinburg, 195 Tenn. 396, 260 S.W.2d 152. We must first determine what easement right, if any, was acquired by complainants by their The Chancellor was of t......
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A. L. Kornman Co. v. Metropolitan Government of Nashville and Davidson County
...reverts to the owner upon non-user, and long-continued non-user is evidence of an intention to abandon. Also see McGiffin v. City of Gatlinburg, 195 Tenn. 396, 260 S.W.2d 152. On the question of abandonment in the case at bar it is to be noted that after the 26 foot strip in question had be......
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...we do not deal with a way of necessity which terminates when the reason for the servitude no longer exists. McGiffin v. City of Gatlinburg, 195 Tenn. 396, 260 S.W.2d 152 (1953). Where an easement exists, its continuation is not dependent upon the necessity for its use. Cottrell v. Daniel, 3......