Myer, III v. Metropolitan Government of Nashville, No. M2009-01644-COA-R3-CV (Tenn. App. 3/3/2010)
| Decision Date | 03 March 2010 |
| Docket Number | No. M2009-01644-COA-R3-CV.,M2009-01644-COA-R3-CV. |
| Parties | CHARLES M. MYER, III ET AL., v. THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County; No. 04C-2897; Barbara N. Haynes, Judge.
Judgment of the Circuit Court Affirmed.
Ben H. Cantrell, Nashville, Tennessee, for the appellants, Charles M. Myer, Virginia Myer, Edwin B. Raskin, and Rebecca K. Raskin.
James Earl Robinson, Cynthia Ellen Gross, and Philip Daniel Baltz, Nashville, Tennessee, for the appellee, The Metropolitan Government of Nashville and Davidson County.
OPINION
Property owners sued, alleging that the Metropolitan Government was using or taking their property without their permission and without compensation. The Metropolitan Government took an easement over the property by eminent domain and the State built the Victory Memorial Bridge over part of it. The Metropolitan Government later transferred its interest in the property to the State. Much later, the Metropolitan Government built the Gay Street Connector over part of the easement and maintained exclusive control over the part of the easement not used for the bridge. The trial court found for the government. The property owners appealed. We affirm.
This lawsuit has a rather long history. In 1949, the legislature passed an act providing for the construction of the Victory Memorial Bridge over the Cumberland River1 in Nashville in honor of Tennesseans who gave their lives in World War II. 1949 Tenn. Pub. Acts, Ch. 73.2 The City of Nashville,3 acting as acquisition agent for the State of Tennessee, condemned an easement over the entirety of the property of the plaintiffs' predecessor-in-interest.4 The city did not rely on the 1949 act as authority for the condemnation action. The 1950 ordinance under which the city authorized the taking of the property references thes state's eminent domain law as authority. Bill 50-418, Sec. 2. Section 1-A of the ordinance authorized the taking of the land on which the Kornman building resided "for public highway and street purposes." The precise use for the land was not stated although the ordinance does state that it was to "give Bridge Street in [sic] increased width" as indicated by plans in the office of the Commissioner of Highways and Public Works and in the office of the City Clerk. Interestingly, nowhere in the ordinance is the building of a bridge specifically mentioned.
The Victory Memorial Bridge was built by contractors for the State Highway Department at a total cost of almost 4 million dollars. Creighton, at 93, 99. It opened in 1956. Zepp, at 4B. In 1958, the City conveyed its interest in the property to the State by a quitclaim deed.
In August 1959, the A.L. Kornman Company sued the City and the Tennessee Commissioner of Highways seeking title to a portion of the land which had allegedly been abandoned.5 The City extricated itself from the litigation by showing that, due to the prior quitclaim deed, the City had no interest in the property. The Commissioner filed a motion to dismiss alleging the suit was a suit against the State seeking to reach property belonging to the State. The Tennessee Constitution, Art. I, Sec. 17, and state statutes prohibited such suits. The trial court overruled the motion but allowed a discretionary appeal by the Commissioner. The Tennessee Supreme Court found that the suit was indeed a suit against the State but did not end its inquiry there. The plaintiff argued that it was being denied due process under the Tennessee Constitution, Art. I, Sec. 8, and just compensation.6 The Supreme Court determined:
If it is found that the State is taking a person's property without just compensation, then this provision of the Constitution can be and should be enforced because clearly it was never the intention of the framers of our Constitution and the enactors of the statute providing immunity for the State that the State could take the property of its citizens and not compensate them for it.
A.L. Kornman Co. v. Moulton, 360 S.W.2d 30, 34-35 (Tenn. 1962) ("Kornman I"). The Court then engaged in an analysis of whether just compensation had been provided already and concluded that it had because Tennessee law required that damages for an easement be fixed at an amount equal to the value of the fee.7 Id. at 35. Thus, the Court held that "after there has been a legitimate fair compensation paid for the property even though taken for an easement when there is an alleged abandonment of that easement afterwards the State should not have to defend that suit without its consent to it." Id.
In February 1964, A.L. Kornman Company filed a suit against Metro over the same property as in the prior suit. Kornman II, 391 S.W.2d at 633. The company claimed that it had unencumbered ownership of this property due to abandonment by the State and that Metro, acting for the State, took possession of this property for public use without compensation to the company. Id. at 635. Metro pled res judicata, claiming that (1) the case was precluded by the original condemnation decree and (2) the earlier proceedings had necessarily determined that no abandonment had occurred. Id. The trial court dismissed the case, and the company appealed. As to the first ground for res judicata, the Supreme Court determined:
[it] would be valid of course if the condemnor had taken the full fee in the condemnation proceeding rather than a mere easement. However, the condemnation decree itself expressly stated that a mere easement was condemned. Also, it is settled that the condemnor can take no greater interest in the land condemned than is necessary for the proposed use.8
Id. The second ground for the res judicata plea, that the earlier proceedings had necessarily determined that no abandonment had occurred, was rejected. Id. at 636. The issue of abandonment was not litigated at all because Metro got out of the lawsuit and the State was found to be immune from suit. Id. at 636-37. Therefore, the Supreme Court remanded the case for further proceedings. Id. at 637.
On remand, the circuit court ruled for the State, and the company appealed, maintaining "that the part of the lot not occupied by the bridge was abandoned upon completion of the bridge and reverted to A. L. Kornman Company, successor of Acorn Realty Company." Kornman III, 417 S.W.2d at 794. Evidence and testimony at trial included the following:
The right-of-way plans which were approved by the Federal Bureau of Roads and the Highway Department of Tennessee included the 26 feet in controversy and called for the sodding of the entire area.
. . . .
R. S. Patton, design engineer for the State, testified that the 26 foot strip in question here is shown to be a part of the plan for the bridge and was acquired by condemnation on June 2, 1951. The bridge was completed in July 1956. Thereafter, on July 1, 1958, the city executed a quitclaim deed to this property to the State of Tennessee.
Id. at 794-95. On appeal, after recounting the history of the prior two appeals, the court stated the facts that gave rise to the suit:
[P]laintiff-in-error attempted in the later part of 1963 to make use of the property by storing some old automobiles thereon. These automobiles were promptly removed by the State following which plaintiff-in-error placed a tent on the property and rented or was about to rent same to a third party when it was removed by the State which then caused a fence to be erected enclosing the property, thus preventing any further use of it by plaintiff-in-error who now claims that this action by the State constituted a second taking of the property. Thereupon the case at bar was filed in the Circuit Court of Davidson County as a `reverse condemnation' suit seeking damages for the fair value of property thus taken the second time by the State.
Id. at 795. The State argued "that every act complained of as amounting to a second taking was an act done by the State in an effort to maintain possession of the property and to prevent plaintiff-in-error from asserting dominion and control over it." Id. at 796.
The 1965 Supreme Court Kornman II decision had held that an easement taken by eminent domain proceedings can be abandoned. Kornman II, 391 S.W.2d at 635. In Kornman III, the Court of Appeals observed On the question of abandonment in the case at bar it is to be noted that after the 26 foot strip in question had been filled in and sodded the State kept the grass cut from the date of the sodding to the trial of this case below and that the intention to abandon was definitely contradicted by the action of the State authorities in removing the automobiles and the tent placed there by plaintiff-in-error and by the building of a fence enclosing the land.
Kornman III, 417 S.W.2d at 796. The court found that under the facts of the case there was no abandonment of the land by the State and no reversion to the A.L. Kornman Company.9 Id. at 798.
This lengthy history brings us to the current case. It was filed in October 2004 and offers a new twist. Metro had previously claimed not to have any interest in the property due to its 1958 quitclaim deed to the State. Yet, Metro built the Gay Street Connector, which goes under the Victory Memorial Bridge beside the Cumberland River over a portion of the easement acquired from the plaintiffs' predecessor-in-interest. The plaintiffs also claim ownership of property immediately west of the Gay Street Connector.10 When Metro changed the use of the property near the courthouse from a parking lot to an entrance of an underground garage, the plaintiffs allege that Metro blocked access to the property owned by the plaintiffs located between the courthouse and the Gay Street...
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