Midwestern Gas Transmission Company v. Baker, No. M2005-00802-COA-R3-CV (TN 2/24/2006), M2005-00802-COA-R3-CV.

Decision Date24 February 2006
Docket NumberNo. M2005-00802-COA-R3-CV.,M2005-00802-COA-R3-CV.
PartiesMIDWESTERN GAS TRANSMISSION COMPANY v. T. DAVID BAKER, SR. ET AL.
CourtTennessee Supreme Court

Appeal from the Circuit Court for Sumner County; No. 26410-C; C. L. Rogers, Judge.

Judgment of the Circuit Court Reversed and Remanded.

Lela M. Hollabaugh and Michael S. Mizell, Nashville, Tennessee, for the appellant, Midwestern Gas Transmission Company.

Frank M. Fly, Murfreesboro, Tennessee, and Gary Allen Davis, Hot Springs, North Carolina, for the appellees, T. David Baker, Sr. and Shirley Baker.

William C. Koch, Jr., P.J., M.S., delivered the opinion of the court, in which Patricia J. Cottrell and Frank G. Clement, Jr., JJ., joined.

OPINION

WILLIAM C. KOCH, JR., P.J., M.S.

This appeal is one of twenty-seven similar appeals arising from a dispute between a natural gas company that has the power of eminent domain and the owners of twenty-seven properties who are resisting the company's efforts to construct an extension of an existing pipeline. After these property owners refused to permit the company to conduct preliminary examinations and surveys on their properties, the company filed separate complaints against the owners of each tract in the Circuit Court for Sumner County seeking orders authorizing it to conduct the preliminary examinations and surveys necessary for the siting of the project pursuant to Tenn. Code Ann. § 29-16-121 (2000). The trial court conducted an expedited joint hearing and entered an order dismissing the company's complaints. The company appealed, and we consolidated the cases for oral argument. We have concluded that Tenn. Code Ann. § 29-16-121 is not preempted by the Natural Gas Act and that the company is entitled to the orders of preliminary entry it sought. Accordingly, we have determined that the trial court erred by dismissing the company's complaints.

I.

The Midwestern Gas Transmission Company (Midwestern) plans to construct and operate a natural gas pipeline approximately thirty miles long beginning at its Portland Station in Sumner County and running southeast to proposed interconnects in Trousdale County with pipelines owned and operated by Columbia Gulf Transmission Company and East Tennessee Natural Gas Company.1 Before commencing construction, Midwestern must determine the precise location of the pipeline, acquire the necessary easements, and obtain a certificate of public convenience and necessity from the Federal Energy Regulatory Commission (FERC).

In order to make a final decision regarding the pipeline's location, Midwestern began contacting the owners of the potentially affected properties to obtain their permission to conduct preliminary examinations and surveys. While many of the affected property owners gave their permission, others did not. Accordingly, on January 7, 2005, Midwestern filed twenty-nine separate complaints in the Circuit Court for Sumner County against the owners of twenty-nine properties located along the path of the proposed pipeline.2 Midwestern alleged in these complaints that it was entitled to conduct preliminary examinations and surveys under Tenn. Code Ann. § 29-16-121 (2000) and that it had attempted unsuccessfully to obtain temporary rights of entry on these properties. Accordingly, Midwestern requested the trial court to enter orders granting it access to the properties to conduct the preliminary examinations and surveys authorized by Tenn. Code Ann. § 29-16-121.

On January 25, 2005, Midwestern requested the trial court to grant an expedited hearing on its request for orders granting it access to the properties under Tenn. Code Ann. § 29-16-121.3 Midwestern explained in these motions that the proposed pipeline project would cross 157 separate tracts of property in Sumner and Trousdale Counties and that the project could not move forward until preliminary examinations and surveys of all the properties along the proposed route could be obtained. Midwestern acknowledged that once the route of the pipeline was finalized, it would be required to obtain easements across the affected properties either by entering into agreements with the property owners or, if necessary, by filing condemnation proceedings against the properties and paying the property owners just compensation for the easements.

Midwestern's motions also stated that if the preliminary examinations and surveys indicated that a particular property was not suitable for inclusion in the project, it would reroute the pipeline and would have no need to commence condemnation proceedings against the unsuitable properties. Midwestern pointed out that if it could not obtain a right of temporary entry to the properties along the proposed route to conduct the requisite examinations and surveys, it would be required to file condemnation proceedings against all potentially affected properties without knowing whether these properties were even suitable for the construction and maintenance of a natural gas pipeline. According to Midwestern, this option would result in takings of private property that might ultimately prove unnecessary for the final project.

The owners of twenty-two of the parcels retained the same law firm and, on February 9, 2005, filed answers admitting the factual allegations in Midwestern's complaints but denying that Midwestern was entitled to conduct preliminary examinations and surveys on their property without their consent.4 These property owners also requested the trial court to dismiss Midwestern's complaints or, in the alternative to include language in the orders authorizing the preliminary entries that would limit Midwestern's activities on the properties to the following: (1) walking on the property; (2) cutting brush or weeds to allow a line of sight with compensation for any damages; (3) driving stakes to identify the proposed route; (4) walking through the property and taking shallow soil samples for environmental, biological, and archaeological reviews; and (5) taking soil corings near major water crossings and at proposed meter sites.

The owners of another parcel retained another lawyer who filed separate pleadings.5 The owners of the six remaining parcels did not retain counsel. In five of these six cases, the property owners did not file answers to Midwestern's complaints.6 In the remaining case, the property owners filed a pro se answer that neither admitted nor denied the factual allegations contained in Midwestern's complaint.7

On February 22, 2005, the trial court held an expedited joint hearing in all the pending Sumner County cases. No proof was presented, and at the conclusion of the hearing, the trial court announced that it would deny Midwestern's motions. On March 3, 2005, the trial court filed an order applicable to all the pending Sumner County cases in which it concluded that Tenn. Code Ann. § 29-16-121 does not authorize companies like Midwestern to enter private property without the owner's consent to conduct preliminary examinations and surveys prior to the filing of a condemnation complaint against the property. The court further concluded that even if Tenn. Code Ann. § 29-16-121 authorized a right of preliminary entry prior to the initiation of condemnation proceedings, Midwestern had presented no proof that it satisfied the factual prerequisites for exercising this authority. Accordingly, the trial court denied Midwestern's motions. Without explanation, the trial court took the further step of dismissing Midwestern's complaints. Midwestern appealed.8

On May 13, 2005, the property owners filed a Tenn. R. App. P. 16(b) motion to consolidate the appeals. Midwestern responded on May 20, 2005 that it did not oppose consolidation as long as the appeals were consolidated into three groups based on whether the defendant property owners had filed an answer admitting the factual allegations of the complaints, had filed an answer neither admitting nor denying the allegations, or had filed no answer to the complaint at all. On May 25, 2005, this court entered an order consolidating the appeals for the purpose of oral argument only and allowing the parties to file consolidated briefs if they wished to do so. The property owners in twenty-three cases filed a consolidated brief to which Midwestern replied.9 The property owners in the other four appeals did not file briefs or otherwise participate in the January 11, 2006 oral argument before this court.

II. THE RIGHT OF PRELIMINARY ENTRY UNDER STATE LAW

The parties' disagreement centers around the proper interpretation of the statutory condemnation procedures codified at Tenn. Code Ann. §§ 29-16-101 to -127 (2000 & Supp. 2005) and Tenn. Code Ann. § 29-16-121 in particular. Midwestern claims that the plain language of Tenn. Code Ann. § 29-16-121 authorizes it to enter the affected properties without the owners' consent to conduct the preliminary examinations and surveys necessary to determine whether the properties are suitable for inclusion in its proposed pipeline extension project. The property owners contend that Tenn. Code Ann. § 29-16-121 does not convey a right of preliminary entry at all, and that even if it does, the right of entry arises only after condemnation complaints have been filed against the properties. Accordingly, we must examine the statutory condemnation procedures codified at Tenn. Code Ann. §§ 29-16-101 to -127.

A.

The responsibility for determining what a statute means rests with the courts. Roseman v. Roseman, 890 S.W.2d 27, 29 (Tenn. 1994); Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 601 (Tenn. Ct. App. 1999). We must ascertain and then give the fullest possible effect to the General Assembly's purpose in enacting the statute as reflected in the statute's language. Stewart v. State, 33 S.W.3d 785, 790-91 (Tenn. 2000); Lavin v. Jordon, 16 S.W.3d 362, 365 (Tenn. 2000). In doing so, we must avoid constructions that...

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