State, Dept. of Highways v. Urban Estates, Inc.

• Decision Date: 10 February 1971
• Citation: 3 Pack 193,225 Tenn. 193,465 S.W.2d 357
• Parties: , 225 Tenn. 193 STATE of Tennessee, DEPT. OF HIGHWAYS, David M. Pack, Commissioner, Petitioner, v. URBAN ESTATES, INC., and The Metropolitan Government of Nashville-Davidson County, Tennessee, Respondents.
• Court: Tennessee Supreme Court

Page 357

465 S.W.2d 357

3 Pack 193, 225 Tenn. 193

STATE of Tennessee, DEPT. OF HIGHWAYS, David M. Pack Commissioner, Petitioner, v. URBAN ESTATES, INC., and The Metropolitan Government of Nashville-Davidson County, Tennessee, Respondents.

Supreme Court of Tennessee.

Feb. 10, 1971.

Rehearing Denied April 5, 1971.

David M. Pack, Atty. Gen., and Reporter, Howell & Fisher, Nashville, for petitioner.

D. L. Lansden, Waller, Lansden, Dortch & Davis, Nashville, for respondents.

OPINION

CHATTIN, Justice.

This is an eminent domain proceeding in which the State condemned 6.07 acres of land as a right-of-way for Interstate I--65 Highway. The State deposited $10,015.00 with the clerk as compensation for the property.

The Metropolitan Government of Nashville and Davidson County has no interest in the controversy except for the collection of taxes. Urban Estates is the only interested landowner.

The jury returned a verdict in favor of respondent, Urban Estates, for the sum of $15,175.00.

In his judgment, the trial judge found the Metropolitan Planning Commission had adopted subdivision regulations preventing the use of property for subdivision purposes where such property is shown as a thoroughfare on the Master Plan of the proposed subdivision; that the State had furnished the Planning Commission with a center line survey of Interstate I--65 prior to February 5, 1963; and that pursuant to the foregoing subdivision regulations, the Planning Commission required the subdivision plan filed February 5, 1963, reserve the 6.07 acres here involved as a right-of-way for I--65. On the basis of these facts, the trial judge awarded interest at the rate of 6% Per annum on $15,175.00 from February 5, 1963, to September 8, 1966, and interest at the same rate on the unpaid balance from September 8, 1966, until the payment of that sum into court.

The State perfected an appeal to the Court of Appeals and assigned as error the above action of the trial judge after the jury had returned its verdict. The Court of Appeals reversed and remanded the case with instructions as to the method of trial involving the factual question of the 'date of taking,' that should be followed in the second trial. This Court granted certiorari.

In April, 1962, respondent purchased 45.9 acres of land from Hailey and wife. At approximately the same time Suburban Properties acquired an adjacent tract of 76 acres from Mayes and wife.

Marvin Barry was the Chief Executive Officer and controlling shareholder of both corporations. The tracts were purchased for subdivision purposes.

Subsequent to acquiring the two tracts, James L. Murphy Company was employed to survey the property and lay it out in lots consistent with the zoning regulations of the Metropolitan Planning Commission.

Mr. Murphy discussed the matter with the Commission and as a result thereof he prepared a preliminary plan for the subdivision dated January 28, 1963, which is an exhibit in the record. This plan shows the proposed right-of-way of 6.07 acres for Interstate Highway I--65.

Mr. Barry, at the time he purchased the properties for respondent and Suburban Properties, did not know the proposed right-of-way traversed these properties. He learned this when he employed Murphy to make the survey some six or eight months after the purchases.

Since the right-of-way traversed both tracts, it was impossible to develop the two tracts as one subdivision.

Thereafter, Murphy prepared a plan for the subdivision of the tract purchased by Urban Estates. This plan was submitted to the Planning Commission on February 5, 1963, and received preliminary approval on March 4, 1963. On the same date, February 5, 1963, Murphy submitted a plan for the development of Oak Park Subdivision and this plan was preliminarily approved by the Commission on March 4, 1963.

Sewers and the trunk lines for the subdivisions were finished in the early part of 1964.

In March, 1964, all the land embraced in the subdivisions was sold to F. J. Moran, Trustee. The 6.07 acres shown on the plans as a right-of-way for the proposed Interstate Highway I--65 were retained by Urban Estates.

The State filed its petition on August 22, 1966, seeking to acquire the 6.07 acres of land as a right-of-way for Interstate I--65.

The order of condemnation and appropriation was entered on September 8, 1966.

In its answer filed on September 14, 1966, respondent did not question the right of the State to condemn the property; nor did respondent contend the 'date of taking' was other than September 8, 1966. In fact, it was orally stipulated at the trial by Counsel for the parties the 'date of taking' was September 8, 1966.

The trial was held in June, 1969. The trial judge charged the jury as follows:

'All of the issues made in this suit have been agreed upon by the parties litigating except the value of the land acquired by the State. It is, therefore, the duty of you, Ladies and Gentlemen of the Jury, to fix the value of the parcel of the land on the date the same was acquired by the State.'

'When you return to report your verdict you will be asked for your verdict as to the fair cash market value of the land that was taken, and this amount will be reported without interest as interest is a fixed legal charge which will be computed by the court on the amount you fix as the fair cash market value.'

The Court of Appeals held the trial judge erred in awarding interest prior to September 8, 1966, but was of the opinion respondent was due some compensation for impairment to its property prior to this date. That Court reversed and remanded the entire case for a new trial with instructions the issues of the date of taking and the fair market value of the property as of such date be submitted to the jury.

The State has filed two assignments of error in this Court.

The first assignment insists the Court of Appeals erred in refusing to void the trial court's award of interest from February 5, 1963, to September 8, 1966, and reversing the entire judgment of the trial court and ordering a new trial. We agree this assignment is good and should be sustained.

From a complete and thorough review of the record, it is clear the parties orally stipulated at the trial of the case the date of taking was September 8, 1966. Having made this stipulation, the parties are bound thereby.

'When a party makes a concession or adopts a theory by stipulation and his cause of action is determined on this concession or theory, then that party must abide by his decision even on appeal by certiorari. Lewis & Sons v. Ill. Cent. R. Co., 150 Tenn. 94, 259 S.W. 903; Stearns v. Williams, 12 Tenn.App. 427.

'These stipulations will be rigidly enforced by the courts of this State. State ex rel. Weldon v. Thomason, 142 Tenn. 527, 221 S.W. 491; Tucker v. International Salt Co., 209 Tenn. 95, 349 S.W.2d 541.' Bearman v. Camatsos, 215 Tenn. 231, 385 S.W.2d 91 (1964).

Hence, the oral stipulation by the parties the date of taking was September 8, 1966, controls and is binding on this appeal.

For the same...