Nashville Housing Authority v. Hill

Decision Date28 July 1972
Citation497 S.W.2d 917
PartiesThe NASHVILLE HOUSING AUTHORITY v. Horace G. HILL, Jr., et al.
CourtTennessee Court of Appeals

Harry G. Nichol, Nashville, for The Nashville Housing Authority.

Barksdale, Whalley, Leaver, Gilbert & Frank, Nashville, for Horace G. Hill and Third National Bank.

Denney, Lackey, Chernau & Castleman, Nashville, for Southern Finishers, Inc.

OPINION

SHRIVER, Judge.

I--THE CASE

This is an appeal by all of the parties from a decree entered by Judge Joe C. Loser, Jr., in the Third Circuit Court of Davidson County on November 1, 1971 in a condemnation suit filed by the Nashville Housing Authority on July 16, 1969 seeking to condemn a factory site at Seventh Avenue, South, and Archer Street in Nashville, Tennessee.

The case was heard on oral and documentary evidence, without the intervention of a jury, and after the case had been taken under advisement and briefs and arguments filed by all of the parties, the foregoing decree was entered holding (1) that the fair market value of the land, together with fixtures and improvements thereon, as of the date of taking was $83,450.00; (2) that the fair market value of the leasehold interest of Southern Finishers, Inc., was $50,000.00; (3) that Southern Finishers, Inc. was not entitled to moving expenses under state law; (4) that the fair market value of the land and buildings, exclusive of trade fixtures, was $33,450.00 which represented the interest of Horace G. Hill, Jr. and Third National Bank, Co-Trustees; and (5) that Horace G. Hill, Jr., and Third National Bank, Co-Trustees, and Southern Finishers, Inc. have and recover from the Nashville Housing Authority the sum of $83,450.00 to be apportioned between them, allowing the Co-Trustees a recovery of $33,450.00 and Southern Finishers, Inc. a recovery of $50,000.00.

As hereinabove indicated, all of the parties to said decree duly perfected their appeals to this Court and filed assignments of error.

II--THE PLEADINGS

The petition of the Nashville Housing Authority seeking to condemn the property in question recites that the plaintiff is a public body with the power of eminent domain, that it is engaged in the development of a project known as Edgehill Urban Renewal Project in Nashville and that it is necessary to acquire ownership in fee of the property described in the petition; that petitioner has been unable to agree with defendants as to compensation to be paid for the property, and that said defendants own or have a claim to an interest in the said property as set forth in the petition, that is, Horace G. Hill, Jr. and Third National Bank, Co-Trustees, own the fee while Southern Finishers, Inc., occupied said tract under an unrecorded lease, the terms of which were unknown to the petitioner, and that said lessee had on said tract certain fixtures and equipment which are movable and may, therefore, be entitled to damages for moving expenses; and that said lessee is made a party-defendant in order that it may set up its claims, if any, to damages for the taking of said land.

The prayers of the bill are for process and for all necessary and proper proceedings for the condemnation and appropriation of the fee in the described property, and for general relief.

There was a Declaration of Taking, accompanied by a deposit of $62,890.00 for the use of the defendants or such persons as might be entitled thereto.

In their answer the defendants Horace G. Hill, Jr. and Third National Bank, Co-Trustees, while admitting the statistical data set forth in the petition, deny that the defendant Southern Finsihers, Inc., had any lease on said property but, to the contrary, it is averred that the former lease held by Southern Finishers, Inc. expired on July 1, 1963 and had never been renewed. A letter from L. S. Williams, Real Estate Officer of the defendant Third National Bank, addressed to Southern Finishers, Inc., dated May 9, 1969, confirms the facts alleged with regard to the expiration of the lease and is attached as Exhibit 'A' to the answer. The said answer also admits that $62,890.00 is a fair and just compensation for the property described in the petition.

The answer of defendant Southern Finishers, Inc. admits all of the allegations contained in Sections I and II of the petition and avers that it then occupied the property sought to be condemned under a lease agreement with the other defendants, pursuant to the terms of which agreement it had the right to remove all trade fixtures from the property at the conclusion of the lease; it neither admits nor denies that the amount paid into Court by the Housing Authority is fair and just compensation and asks that a Jury of View assess the defendant's damages.

An order sustaining the condemnation petition and granting a motion for a writ of inquiry as to damages and appointing a Jury of View was entered on October 23, 1969.

The Jury of View reported that the fair market value of the land and improvements was $62,500.00, the leasehold interest $29,500.00, and moving expenses $14,100.00, and that the compensation should be divided as follows:

Exceptions to the report were filed by the Co-Trustees.

A motion accompanied by an affidavit was filed by the Co-Trustees to have the fund which was paid into Court turned over to them. Subsequently, a decree confirming the report of the Jury of View was entered, to which action the Co-Trustees duly excepted and the motion of the Co-Trustees to withdraw the fund of $62,890.00 paid into Court was denied.

Thereafter, the defendants Horace G. Hill, Jr. and Third National Bank, Co-Trustees, appealed from the finding of the Jury of View and demanded a jury to try the cause.

After hearing the case and taking same under advisement, the Trial Judge, on October 13, 1971, filed his Memorandum Opinion, which is as follows:

'MEMORANDUM

This is a condemnation proceeding wherein the Nashville Housing Authority has taken for public use a certain tract of land, including all fixtures and improvements thereon. The property is owned by the defendants, Horace G. Hill, Jr. and Third National Bank, Co-Trustees. On the date of taking the property was occupied by the defendant Southern Finishers, Inc., who was holding over under the terms of an expired lease, on a month-to-month basis. It is a total taking.

The expired lease included the following provision:

'. . . the Lessee will have the right to remove the trade fixtures placed on the premises by the Lessee at the termination of the lease, provided however, that the Lessee will restore the premises and repair any damage caused by the removal of such trade fixtures . . .' (Exhibit 19)

For determination by the Court without a jury, is the issue of just compensation.

Three experts testified as to the value of the land and buildings, exclusive of fixtures, and their opinions range from $29,900.00 to $33,450.00. None of these witnesses claim an expertise in the evaluation of fixtures, nor were they able to express with reasonable certainty, the amount by which the tenant's fixtures enhanced the market value of the freehold.

One expert and the owner of Southern Finishers, Inc. testified as to the value of the fixtures in place for continued use. (Replacement cost less depreciation). The range of their testimony is from $38,131.00 to $75,944.00. This evidence was admitted and considered by the Court for the purpose of determining the extent to which the market value of the land has been enhanced by the existence of the fixtures. (See United States v. 0.84 Acres of Land (D.C.), 112 F.Supp. 828). While these are items of personalty as between landlord and tenant, the condemnor has taken them and cannot now deny that they are a part of the realty.

From consideration of the above, as well as the pleadings, arguments and the entire record, the Court has reached the following conclusions:

1. The fair market value of the land, together with fixtures and improvements thereon, as of the date of taking is $83,450.00.

2. The fair market value of the leasehold interest of Southern Finishers, Inc. is $50,000.00. This defendant is not entitled to moving expenses under state law and those expenses have not been considered in evaluating the leasehold interest.

3. The fair market value of the land and buildings, exclusive of fixtures, is $33,450.00, and represents the interest of Horace G. Hill, Jr. and Third National Bank, Co-Trustees.

The petitioner is liable for interest on the difference between $83,450.00 and $62,890.00 from the date of taking until the date of the second deposit, and on the difference between $83,450.00 and the amount of the second deposit, from that date until entry of judgment, and such interest will be prorated between the defendants.

The Nashville Housing Authority will be credited with any earnings on the two deposits pursuant to earlier orders.

Costs will be paid by the petitioner.

Counsel for the petitioner will prepare the order.

/s/ Joe C. Loser, Jr.

JUDGE'

The foregoiong Opinion was implemented be a decree entered November 1, 1971, from which, as hereinabove stated, all of the parties appealed.

ASSIGNMENTS OF ERROR

The assignments filed by Horace G. Hill, Jr. and Third National Bank, Co-Trustees, are to the effect that:

(1) The Court erred in finding that the fair market value of the leasehold interest of Southern Finishers, Inc. was $50,000.00, and deducting same from the amount awarded to the Co-Trustees; and,

(2) The Court erred in failing and refusing to award interest on the money initially tendered into Court from the date of taking to the date of judgment, less credit for any interest earned by the sum while on deposit.

The assignments filed by Southern Finishers, Inc. are:

(1) That the Court erred in finding that the fair market value of the leasehold interest of Southern Finishers, Inc. is $50,000.00, as the preponderance of the evidence indicates that said award was inadequate;...

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4 cases
  • Shelby County v. Barden
    • United States
    • Tennessee Supreme Court
    • September 15, 1975
    ...as a separate item of damages. See Annot., 1 A.L.R.2d 878 (1948); 3 A.L.R.2d 286, 302 (1949). See also Nashville Housing Authority v. Hill, 497 S.W.2d 917 (Tenn.App.1972). We cannot say, from an examination of this record that the proffered testimony was merely cumulative, or that its exclu......
  • Metropolitan Development and Housing Agency v. Hill
    • United States
    • Tennessee Court of Appeals
    • July 26, 1974
    ...appeal, resulting in a reversal and remand for retrial. The opinion in said appeal is reported as The Nashville Housing Authority v. Horace G. Hill et al., Tenn.App., 497 S.W.2d 917 (1973). The respondents, Hill and Bank, Trustees, have moved to dismiss the present appeal of Southern Finish......
  • State ex rel. Com'r, Dept. of Transp. v. Teasley
    • United States
    • Tennessee Court of Appeals
    • July 14, 1995
    ...trade fixtures nor any other type of personal property are compensable in eminent domain. This court, in Nashville Housing Authority v. Hill, 497 S.W.2d 917 (Tenn.App.1972), at 926, said: "A tenant is not entitled to be compensated for trade fixtures which are a part of the realty even thou......
  • State ex rel. Smith v. Overstreet
    • United States
    • Tennessee Supreme Court
    • February 2, 1976
    ...this machinery was not embraced within the statute and was properly disallowed by the trial court. In the case of Nashville Housing Authority v. Hill, 497 S.W.2d 917 (1972), the Court of Appeals did allow expenses of dismantling and removing machinery and other incidental moving expenses in......

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