Windrow v. Middle Tenn. Elec. Membership Corp.

Citation376 S.W.3d 733
Decision Date20 June 2012
Docket NumberNo. M2011–00905–COA–R3–CV.,M2011–00905–COA–R3–CV.
CourtCourt of Appeals of Tennessee

376 S.W.3d 733

Ronald and Sherry WINDROW

No. M2011–00905–COA–R3–CV.

Court of Appeals of Tennessee,
Middle Section, at Nashville.

Sept. 28, 2011 Session.
March 1, 2012.
Permission to Appeal Denied by
Supreme Court June 20, 2012.

[376 S.W.3d 735]

Robert A. Anderson, Nashville, Tennessee for Plaintiff/Appellants Ronald and Sherry Windrow.

James C. Cope & Jeremy M. Cothern, Murfreesboro, Tennessee for Defendant/Appellee, Middle Tennessee Electric Membership Corporation.

HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.

Facts and Proceedings Below

This appeal involves a nuisance claim. The plaintiff landowners filed a nuisance action against the defendant electrical cooperative, alleging that the cooperative's electrical substation, built near the plaintiffs' home, constituted a nuisance. The electrical cooperative filed a motion to dismiss, alleging that the landowners' claim was in actuality a claim for inverse condemnation that was time-barred, and that they were precluded from asserting a tort claim for nuisance. The trial court granted the motion, and the plaintiff landowners now appeal. We reverse.

Plaintiff/Appellants Ronald and Sherry Windrow (“the Windrows”) are the owners of a home located in Nolensville, Williamson County, Tennessee. Defendant/Appellee Middle Tennessee Electric Membership Corporation (“MTEMC”) is a privately owned, non-profit corporation. In May 2005, MTEMC became the owner of a tract of land that is adjacent to the Windrows' home. In April 2007, MTEMC began constructing an electrical power substation on that tract of land. The substation was completed and began formal operations on February 27, 2008.

Since the electrical substation began operation, it has generated a “buzz” or “hum,” audible in the Windrows' home, twenty-four hours a day, seven days a week.1 The substation's intrusive bright lights are visible at all hours of twilight and darkness, seven days a week. MTEMC built no screening between the substation and the Windrows' property, and the substation is unsightly.

Over two years after the substation commenced operation, on December 20, 2010, the Windrows filed the instant lawsuit against MTEMC. The lawsuit claims that the substation constitutes a private nuisance, based on its vexatious sound, lights, and general unsightliness, and that it has damaged the private enjoyment of the Windrows' home and diminished the value of their property.

MTEMC responded with a motion to dismiss pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure. The motion contended that the Windrows'

[376 S.W.3d 736]

cause of action was either mislabeled or mischaracterized as a claim for nuisance, that in fact it was a claim for inverse condemnation. MTEMC noted that a one-year statute of limitations under Section 29–16–124,2 is applicable to inverse condemnation actions, and thus any claim by the Windrows for inverse condemnation was time-barred. MTEMC asserted that inverse condemnation was the exclusive remedy available to the Windrows, and on this basis sought dismissal of their complaint. In response, the Windrows argued that inverse condemnation is not the exclusive remedy for a “nuisance-type” taking by a non-governmental entity such as MTEMC, because MTEMC cannot assert the doctrine of sovereign immunity as a defense.

After a hearing, the trial court entered an order granting MTEMC's motion, and dismissed the Windrows' complaint. The order does not specify the grounds for granting the motion. The Windrows now appeal.

Issues on Appeal and Standard of Review

On appeal, the Windrows argue that the trial court erred in dismissing their complaint. The Windrows note that their claim for nuisance is not time-barred, and argue that the law permits them to assert a claim against MTEMC, a privately owned entity, under a legal theory other than inverse condemnation.

In reviewing the grant of a motions to dismiss, under Rule 12.02(6) of the Tennessee Rules of Civil Procedure, we construe the complaint liberally, presuming all factual allegations to be true and giving the Windrows the benefit of all reasonable inferences. Trau–Med of Am., Inc. v. Allstate Ins., Co., 71 S.W.3d 691, 696–97 (Tenn.2002) (citing Pursell v. First Am. Nat'l Bank, 937 S.W.2d 838, 840 (Tenn.1996)). We review the legal findings of the trial court's legal conclusions de novo without affording them any presumption of correctness. Trau–Med, 71 S.W.3d at 696 (citing White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn.2000)).


On appeal, the Windrows acknowledge that they could have asserted a claim of inverse condemnation against MTEMC, a private entity, but insist that Tennessee law does not preclude them from filing a nuisance claim against MTEMC as well. In response, MTEMC cites a number of Tennessee cases which it contends show that, where a claim of inverse condemnation is available, no claim for nuisance may be asserted. Both parties cite Tennessee statutes and caselaw. We will briefly review the law on inverse condemnation, and then address the parties' arguments.

The Tennessee Constitution provides that “no man's particular services shall be demanded, or property taken, or applied to public use, without the consent of his representatives, or without just compensation being made therefor[e].” Tenn. Const. art. 1, § 21. This constitutional provision sets out the power of eminent domain, that is, the power of the government to take privately-owned property, in particular land, and

[376 S.W.3d 737]

convert it to public use, subject to reasonable compensation to the property owner for the taking. Edwards v. Hallsdale–Powell Util. Dist., 115 S.W.3d 461, 464 (Tenn.2003) (citing Jackson v. Metro. Knoxville Airport Auth., 922 S.W.2d 860, 861 (Tenn.1996)); see Black's Law Dictionary 541 (7th ed.1999) (“eminent domain”). Condemnation is the exercise of the power of eminent domain, that is, the act of assigning property to public use, subject to reasonable compensation. Black's Law Dictionary 287 (7th ed.1999) (“inverse condemnation”). Inverse condemnation is an action by a property owner for compensation where there was a “taking” but no formal condemnation proceedings were filed. Black's Law Dictionary 287 (7th ed.1999) (“inverse condemnation” under “condemnation”); Edwards, 115 S.W.3d at 464–65;Jackson, 922 S.W.2d at 861–62 (citing Johnson v. City of Greeneville, 222 Tenn. 260, 435 S.W.2d 476, 478 (1968)). Thus, condemnation is initiated by the taking authority, while an inverse condemnation proceeding is initiated by the landowner. B & B Ent. of Wilson County v. Lebanon, 318 S.W.3d 839, 846 n. 6 (Tenn.2010).

The power of eminent domain is extended to certain private entities, such as railroad, telephone and electricity providers, by the authority of the legislature. SeeTenn.Code Ann. § 65–25–205(12)(a)(C) (2004).3 As such, a claim of inverse condemnation may be asserted against such a private entity. See Meighan v. U.S. Sprint Commc'ns, 924 S.W.2d 632 (Tenn.1996); Campbell v. Lewisburg N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 146–47 (1930); Doty v. Am. Telephone & Telegraph Co., 123 Tenn. 329, 130 S.W. 1053, 1054–55 (1910); Tenn. Elec. Power Co. v. J.T. Holt, 3 Tenn.App. 372 (Tenn.Ct.App.1926). It is undisputed on appeal that MTEMC, a private entity, has been granted the power of eminent domain and thus would be subject to a claim of inverse condemnation.

An entity with the power of eminent domain may in effect “take” property in ways other than a direct proceeding to condemn real property and convert it to public use. Such a “taking” occurs whenever an entity with the power of eminent domain “destroys, interrupts, or interferes with the common and necessary use of real property of another.” Edwards, 115 S.W.3d at 465 (quoting Pleasant View Util. Dist. v. Vradenburg, 545 S.W.2d 733, 735 (Tenn.1977)). There are “two classifications of takings: physical occupation takings and nuisance-type takings.” Edwards, 115 S.W.3d at 465 (citing

[376 S.W.3d 738]

Jackson, 922 S.W.2d at 862–64).See also B & B Enter. of Wilson Co., 318 S.W.3d at 845. A physical occupation taking occurs when an entity with the power of eminent domain “causes either a direct and continuing physical invasion of private property or a destruction of a plaintiff's property rights.” Id. at 465 (citations omitted). Such a physical invasion can occur where, for example, an entity with eminent domain authority diverts water onto private property, thereby causing continuing flooding. Id. (citations omitted).

The instant appeal does not involve a physical occupation taking, but instead involves the other classification of taking, a “nuisance-type taking.” This type of taking occurs when the entity with eminent domain power “interferes with a landowner's beneficial use and enjoyment of the property.” Id. (citations omitted). An example of a nuisance-type taking is a government's extension of an airport runway that results in noise and vibrations from airplanes flying at low altitude, to the detriment of nearby private property owners. Jackson, 922 S.W.2d at 861, 863–64.

A “nuisance-type taking” for purposes of inverse condemnation should be contrasted with the tort of private nuisance. A private nuisance is “anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable....” Lane v. W.J. Curry &...

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