US ex rel. TVA v. An Easement & Right-Of-Way

• Decision Date: 24 March 1988
• Docket Number: No. 1-87-0066,1-86-0054.,1-87-0066
• Citation: 682 F. Supp. 353
• Parties: UNITED STATES of America for the Relation and for the Use of the TENNESSEE VALLEY AUTHORITY v. AN EASEMENT AND RIGHT-OF-WAY OVER 1.8 ACRES OF LAND, MORE OR LESS, IN MAURY COUNTY, TENNESSEE, M. Glenn West, et al. UNITED STATES of America for the Relation and for the Use of the TENNESSEE VALLEY AUTHORITY v. A TEMPORARY RIGHT TO ENTER UPON LAND; an Easement and Right-of-Way Over 5.2 Acres of Land, More or Less; and an Easement and Right-of-Way for an Access Road Over 0.3 Acres of Land, More or Less, in Maury County, Tennessee, Theodore Marvin Davis, et al.
• Court: U.S. District Court — Middle District of Tennessee

682 F. Supp. 353

UNITED STATES of America for the Relation and for the Use of the TENNESSEE VALLEY AUTHORITY v. AN EASEMENT AND RIGHT-OF-WAY OVER 1.8 ACRES OF LAND, MORE OR LESS, IN MAURY COUNTY, TENNESSEE, M. Glenn West, et al.

UNITED STATES of America for the Relation and for the Use of the TENNESSEE VALLEY AUTHORITY v. A TEMPORARY RIGHT TO ENTER UPON LAND; an Easement and Right-of-Way Over 5.2 Acres of Land, More or Less; and an Easement and Right-of-Way for an Access Road Over 0.3 Acres of Land, More or Less, in Maury County, Tennessee, Theodore Marvin Davis, et al.

Nos. 1-87-0066, 1-86-0054.

United States District Court, M.D. Tennessee, Columbia Division.

March 24, 1988.

William M. Leech, Jr., Columbia, Tenn., Corabel Alexander, Waller, Lansden, Dortch & Davis, Nashville, Dennis J. Meaker, Nashville, Tenn., for Davis defendants.

Joe I. Majors, Chairman, Ortale, Kelley, Herbert & Crawford, Jack Derryberry, Ward, Derryberry & Thompson, William Farmer, Nashville, Tenn., appointed comrs.

Edward S. Christenbury, Gen. Counsel, James E. Fox, Deputy Gen. Counsel, Mark B. Cherpack, Kenneth D. Mielke, Brent Marquand, Trial Attys., Tennessee Valley Authority, Knoxville, Tenn., for plaintiff.

MEMORANDUM

WISEMAN, Chief Judge.

In separate lawsuits against two individual landowners,¹ the plaintiff Tennessee Valley Authority (TVA) has attempted to acquire by eminent domain both easements and rights of way for the erection and maintenance of a 7.2 mile 161-kV electric power transmission line. The line will provide electricity to the new Saturn Corporation's automobile assembly plant in Spring Hill, Tennessee. The Saturn plant will be a single, directed-served customer of TVA. Defendants Davis and West own land that is in the proposed path for the new line. After TVA filed declarations of taking against each landowner pursuant to 40 U.S.C. § 258a and after this Court ordered that TVA take immediate possession of the condemned property, each landowner filed a motion to set aside the order of immediate possession.² In response, TVA has filed a motion to strike a defense against one landowner and motions for partial summary judgment against both landowners.³

The defendants' answers to the complaints and motions to set aside the Court orders make the same argument. According to the landowners, TVA allegedly abused its discretion and acted arbitrarily and capriciously by failing to consider several factors: less restrictive alternate routes, inconvenience to the landowners, economic detriment, the environmental and aesthetic impact on the property, and safety.⁴ Both landowners challenge the compensation proposed by the Court appointed Commission as inadequate. Davis also argues that the taking does not qualify as a public use because the line will serve a single industrial customer.

At the February 1, 1988 hearing on pending motions in the Davis case, defendants' attorney moved orally for consolidation of both cases under Fed.R.Civ.P. 42.⁵ This memorandum consolidates the cases and addresses the outstanding motions.

I. Consolidation Under Rule 42

Rule 42(a) reads as follows:

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Consolidation is a matter for the trial court's discretion. Consolidation is not joinder. It is a matter of convenience and economy but does not merge the suits into a single cause, or change the rights of parties, or make those who are parties in one suit parties in another. Johnson v. Manhattan Railway Co., 289 U.S. 479, 496, 53 S.Ct. 721, 727-28, 77 L.Ed. 1331, 1345 (1933). Although certain actions may be resolved together, each retains its separate character and requires entry of a separate judgment. See 9 C.A. Wright & A.R. Miller § 2382 at 254 (1971 & Supp.1987).

TVA's only objection to defendant's motion is that it considers consolidation on the issue of taking unnecessary and consolidation on the issue of just compensation a matter for the Court appointed Commission. This Circuit has long recognized a district court's power under Rule 42(b) to sever issues or claims, as when it orders separate trials on the issues of liability and damages. See In re Beverly Hills Fire Litigation, 695 F.2d 207, 216 (6th Cir.1982), citing Moss v. Associated Transport, 344 F.2d 23 (6th Cir.1965). This Court has already appointed a three person commission to consider the issue of just compensation and has reserved trial of all other issues to itself.⁶ Granting the motion to consolidate solely on the issue of taking will not alter this procedure. Further, consolidation is particularly appropriate on these facts. The defendants, represented by the same attorney, make virtually identical arguments in opposing the taking of property for construction and maintenance of a single power line. TVA's briefs in both cases are almost verbatim copies of each other. The numerous common elements of law and fact and the need to render a decision quickly in this case⁷ militate in favor of consolidation. Accordingly, these cases are consolidated for the purpose of deciding the dispositive motions before the Court.

II. Dispositive Motions

In West, the Court has already rescinded its September 16, 1987 order of immediate possession; TVA has moved the Court to strike West's defense, to reinstate the original order, and to grant partial summary judgment on the validity of the taking. In Davis, the Court held a hearing on defendant's motion to set aside its January 25, 1988 order of immediate possession. TVA has moved for partial summary judgment against Davis. Resolution of all these motions turns on an examination of two core issues: TVA's power to take real property through eminent domain and this Court's power to review the taking.

The TVA Act of 1933, 16 U.S.C. § 831c(h) (1985 & Supp.1987) gives TVA the power to exercise the right of eminent domain.⁸ Subsection (i) explicitly gives TVA the power to acquire real estate for the construction of transmission lines.⁹ In a seminal case in which TVA's exercise of eminent domain was questioned, the Supreme Court defined the scope of TVA's authority under the Act. TVA v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946). The Act is to be liberally construed to carry out Congress' purposes. Id., 327 U.S. at 551, 66 S.Ct. at 717; 16 U.S.C. § 831dd. It is the function of Congress to decide what type of taking is for a public use and that the agency authorized to do the taking may do so to the full extent of its statutory authority. Id. at 551-552, 66 S.Ct. at 717-718. Once Congress has defined a public use, its decision is entitled to great deference. A departure from judicial restraint would result in courts deciding what is and what is not a governmental function and in their invalidating legislation on the basis of their view on that question at the moment of decision. See id; Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27, 31 (1954), (explaining the "extremely narrow" scope of judicial review), cited in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 239-241, 104 S.Ct. 2321, 2328-30, 81 L.Ed.2d 186, 196-198 (1984). The Welch Court also noted an axiomatic principal of eminent domain: that where public need requires acquisition of real property, that need is not to be denied because of an individual's unwillingness to sell. Welch, 327 U.S. at 554, 66 S.Ct. at 719.

Three concurring Justices in Welch expressed concern about the scope of judicial review left intact by the majority opinion. Justice Reed, concurring separately, explained that TVA's good-faith determination that condemnation is needful does not forestall all judicial examination. There are in effect two levels of inquiry: whether the taking is for a public purpose because it is within the authority legitimately granted to the agency by the legislature; and whether the necessity and the scope of the taking suit that purpose. The first question is subject to judicial review; the second is not. Cf. Berman, 348 U.S. at 32, 75 S.Ct. at 102. Justice Reed said that the constitutional doctrine of the Separation of Powers would be unduly restricted if an administrative agency could invoke a political power to immunize its action against judicial examination in contests between the agency and the citizen. Id. at 556, 66 S.Ct. at 720.

A more recent Supreme Court case on eminent domain not involving TVA addressed the question whether the Public Use Clause of the Fifth Amendment prohibited the State of Hawaii from taking property from lessors and transferring it to lessees to disperse ownership of fees simple. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). In upholding the State legislation, the Court said that the legislature determines what is a public use. Deference to that determination is required until it is shown to involve an impossibility. See id. at 240, 104 S.Ct. at 2329. The Court will only substitute its judgment for the legislature's as to what is a public use if it is palpably without reasonable foundation. See id. at 240-241, 104 S.Ct. at 2329. If the object is within the authority of the legislature, however, the means are for the legislature to determine as well. Id.

Cases in this circuit that address TVA's potential to abuse its power of eminent domain echo the approach of the Welch concurrence. Courts first consider whether TVA's taking is for a public use because it is within TVA's power under the Act. TVA may abuse its discretion if it acts arbitrarily and capriciously—i.e., so outrageously that it is outside the scope of TVA's statutory grant.¹⁰ Once the courts determine that the taking is a public use falling within TVA's powers under the Act,...