State of Tennessee v. United States

• Decision Date: 26 May 1958
• Docket Number: No. 12657-12660.,12657-12660.
• Citation: 256 F.2d 244
• Parties: STATE OF TENNESSEE, Appellant, v. UNITED STATES of America (Southern Bell Tel. & Tel. Co. and Sevier County, Tenn.), Appellees. UNITED STATES of America, Appellant, v. STATE OF TENNESSEE (Southern Bell Tel. & Tel. Co. and Sevier County, Tenn.), Appellees. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. UNITED STATES of America (State of Tenn. and Sevier County, Tenn.), Appellee. SEVIER COUNTY, TENNESSEE, Appellant, v. STATE OF TENNESSEE (United States and Southern Bell Tel. & Tel. Co.), Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

256 F.2d 244 (1958)

STATE OF TENNESSEE, Appellant, v. UNITED STATES of America (Southern Bell Tel. & Tel. Co. and Sevier County, Tenn.), Appellees.

UNITED STATES of America, Appellant, v. STATE OF TENNESSEE (Southern Bell Tel. & Tel. Co. and Sevier County, Tenn.), Appellees.

SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. UNITED STATES of America (State of Tenn. and Sevier County, Tenn.), Appellee.

SEVIER COUNTY, TENNESSEE, Appellant, v. STATE OF TENNESSEE (United States and Southern Bell Tel. & Tel. Co.), Appellees.

Nos. 12657-12660.

United States Court of Appeals Sixth Circuit.

May 26, 1958.

COPYRIGHT MATERIAL OMITTED

Richard L. Carson and O. M. Tate, Jr., Knoxville, Tenn., and James Glasgow, Nashville, Tenn. (Richard L. Carson of Tapp, Carson, Tate & Felts, Knoxville, Tenn., George F. McCanless, Nashville, Tenn., Jack Wilson, Chattanooga, Tenn., and James M. Glasgow, Asst. Atty. Gen., on the brief), for the State of Tennessee.

Fred W. Smith, Dept. of Justice, Washington, D. C. (Perry W. Morton, Washington, D. C., John C. Crawford, John F. Dugger, Knoxville, Tenn., and Roger P. Marquis, John C. Harrington, Washington, D. C., on the brief), for the United States.

J. O. Bass, Nashville, Tenn. (Thomas G. McConnell of Frantz, McConnell & Seymour, Knoxville, Tenn., J. O. Bass of Bass, Berry & Sims, Nashville, Tenn., E. W. Smith, John A. Boykin, Jr., and Graham W. George, Atlanta, Ga., on the brief), for Southern Bell Tel. & Tel. Co.

R. R. Kramer, Knoxville, Tenn. (Andrew Johnson, Knoxville, Tenn., David M. Pack, Sevierville, Tenn., on the brief), for Sevier County, Tenn.

Before MARTIN and STEWART, Circuit Judges, and STARR, District Judge.

STARR, District Judge.

These four appeals were consolidated for hearing in this court, and for sake of brevity we shall refer to the United States of America as "the government," Southern Bell Telephone and Telegraph Company as "Southern Bell," the State of Tennessee as "the state," and Sevier county, Tennessee, as "the county."

The initial step in the litigation involved in these appeals was a civil action begun February 19, 1953, by the government at the request of the Secretary of the Interior against the state, the county, Southern Bell, and others. In the first count of its complaint the government sought to take by right of eminent domain "all rights, titles and interests not now held by the plaintiff" in certain land in Sevier county, Tennessee, for use in the establishment of a scenic parkway and highway connecting with the Great Smoky Mountains National Park, and for the ascertainment and award of just compensation to the owners and parties in interest. On the same date the government filed a declaration of taking and judgment was entered thereon, and the government deposited in the registry of the court the sum of one dollar as its estimate of just compensation for the outstanding "rights, titles and interests" in the lands taken. In the second count of its complaint the government sought to be exonerated or indemnified by the state against all damages and awards on account of the government's taking by condemnation of the right of way or easement claimed by Southern Bell for its telephone line along the public highway between the communities of Banner Bridge and Gatlinburg in Sevier county, Tennessee.

Before discussing the issues which subsequently became involved in this litigation, we shall narrate briefly the factual background out of which the litigation arose. It appears that prior to 1922 there was a narrow, curving, unimproved dirt road established by public user extending through the mountainous country between Banner Bridge and Gatlinburg. The state and county claim that in 1922 the county acquired by conveyance from abutting landowners an easement for highway purposes 40 feet in width, with such additional land as might be necessary, for the improvement, construction and maintenance of a public highway in approximately the same location as the former dirt road. The county then proceeded to grade, widen, gravel, and improve the highway between Banner Bridge and Gatlinburg, and some time prior to September 1, 1926, the state took over the maintenance of this county road. The state and county further claim that in 1928 the county acquired from abutting landowners easements for highway purposes over a strip of land "25 feet in width on each side of the center line" of the existing highway, thereby creating an easement 50 feet in width, and that the state then widened and blacktopped the traveled portion of the highway, which became a part of state highway No. 71.

In 1926 the Peoples Telephone Company, predecessor to Southern Bell, had constructed a public telephone line along state highway No. 71, a portion of which was located between Banner Bridge and Gatlinburg. In 1928 Southern Bell acquired the property and assets of the Peoples Telephone Company, including the telephone line between Banner Bridge and Gatlinburg, and it has continued to own, maintain, and operate the same.

It appears that in recent years there had been a great increase in vehicular traffic over highway 71 leading into the Great Smoky Mountains National Park; that the portion of the highway through the mountainous country between Banner Bridge and Gatlinburg at the park entrance was considered to be inadequate and hazardous; and that it was necessary to widen and improve it in order to accommodate the increase in traffic. In pursuance of negotiations between the state and the government through its Public Roads Administration, it was proposed to create a scenic parkway and improved highway between Banner Bridge and Gatlinburg. In carrying out this plan the Congress in 1944 by statute (16 U.S.C.A. § 403h-11) authorized the Secretary of the Interior, on behalf of the government, to accept donations of land and interests in land in Tennessee for the construction of a scenic parkway connecting with the Great Smoky Mountains National Park. The act provided that the right of way to be acquired for the parkway should be of such width as to comprise an average of 125 acres per mile for its entire length, and also that all property so acquired would become a part of the national park and be subject to all laws, rules, and regulations applicable thereto.

Chapter 87 of the Tennessee Public Acts of 1945 authorized the state commissioner of highways and public works to acquire by donation, purchase or condemnation a right of way extending to the Smoky Mountains National Park and to acquire the lands necessary for the construction of a highway and scenic parkway. This act further provided that the state should pay for the rights of way and property so acquired from state-highway funds. In contemplation of the establishment of the parkway and the improvement of the highway, the state on June 27, 1946, submitted a proposal to the county relative to the acquisition of easements for rights of way along highway 71 extending from Sevierville to Gatlinburg, which included the highway between Banner Bridge and Gatlinburg, and this proposal was accepted by resolution of the Sevier county court. A copy of the proposal is hereto attached marked appendix A. Chapter 146 of the Tennessee Public Acts of 1947 provided that when the government, acting through the Public Roads Administration or the National Park Service, had entered into a written contract with the state to construct and maintain the scenic parkway and highway leading into the national park, the state commissioner of highways and public works was then authorized to convey to the government the rights of way acquired by the state, subject to certain reservations by the state. Chapter 26 of the Tennessee Public Acts of 1951 (1932 Tenn.Code § 3178.6, Tenn. Code Ann. § 54-306) authorized the commissioner of highways and public works of the state or any county of the state to acquire by eminent domain interest and title in lands to be used for the construction or reconstruction of any road, highway or parkway as might be deemed necessary, in order to secure Federal aid in such construction or reconstruction. Chapter 57 of the Tennessee Public Acts of 1951 authorized the state commissioner of highways and public works to convey to the United States all of the state's right, title, and interest in and to any and all state highways located on, over or within any lands which were a part of the Great Smoky Mountains National Park, and the highway between Banner Bridge and Gatlinburg would come within the provisions of this statute.

As a part of the program of the state and government for the establishment of the scenic parkway between Banner Bridge and Gatlinburg and the widening and improvement of the highway through the parkway, the state department of highways and public works and the government's Public Roads Administration and National Park Service entered into a cooperative agreement on April 1, 1948, a copy of which is hereto attached marked appendix B. It appears that in pursuance of their agreement (appendix A) the state and county cooperated in the acquisition of easements and rights of way for the widening and improvement of the highway between Sevierville and Banner Bridge. However, the government later required that fee title be acquired to the land comprising the proposed scenic parkway and highway between Banner Bridge and Gatlinburg, and the state and county cooperated in acquiring that land, fee title to which was vested in the state. It appears from the testimony of the state highway department attorney that the county paid for this land and that the state reimbursed the county for two-thirds of the cost.

As a part of the cooperative program between the state and the government, the state on May 9, 1951, conveyed by deed to the government (government exhibit 16) the lands which it had acquired between Banner Bridge and Gatlinburg. This deed to the government was subject to certain reservations by the state, ...