City of Brentwood v. George M. Cawthon

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 14, 2010 Session
CITY OF BRENTWOOD v. GEORGE M. CAWTHON
Appeal from the Circuit Court for Williamson County
No. 07036 Robbie T. Beal, Judge
No. M2009-02330-COA-R3-CV - Filed May 13, 2010
This is a condemnation case in which the City of Brentwood acquired 0.72 acres of land by
eminent domain for the purpose of constructing a 2.5 million gallon water tank. Following
a trial, the jury awarded $43,200 for the value of the land taken and $194,850 for the
incidental damages to the remainder of the property. The City’s ability to take the land and
the amount awarded for the value of the land taken is not in question; rather, the City appeals
the amount of incidental damages awarded. Finding no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and F RANK G. C LEMENT, Jr., J., joined.
J. Todd Moore and Keith Jeremy Woodruff, Franklin, Tennessee, for the appellant, City of
Brentwood.
Jonathan Lewis Williams and Albert Wayne Crim, Nashville, Tennessee, for the appellee,
George M. Cawthon.
OPINION
I. Background
The City of Brentwood (the “City”) acquired by eminent domain 0.72 acres of land
owned by the Appellee, George M. Cawthon, for the construction of a 2.5 million gallon
above ground water tank that is approximately 50 feet high. The land taken occupies the
highest point and most level part of a hill within Mr. Cawthon’s 35.48 acre property.1 Mr.
Cawthon did not object to the City’s authority to take the land, but challenged the amount
tendered by the City, $36,225, to the court with its petition for condemnation.
A trial was held before a jury during which testimony was heard from Mr. Cawthon;
William R. Parrish, Mr. Cawthon’s expert witness; Christopher P. Milton, Director of Water
Services for the City; and Norman Hall, the City’s expert witness. There were no objections
to the qualifications of either Mr. Parrish or Mr. Hall to testify as expert witnesses. Both Mr.
Parrish and Mr. Hall utilized a comparison sales approach to determine the value of Mr.
Cawthon’s property at the time of the taking. Mr. Parrish opined that at the time of the
taking in 2007, the property was worth approximately $60,000 per acre; consequently, the
value of the land taken was $43,200. Mr. Hall testified that it was his opinion that at the time
of the taking Mr. Cawthon’s property was worth approximately $50,000 per acre such that
the value of the land taken was $36,000.
With respect to incidental damages, the City’s expert witness, Mr. Hall, testified that,
based on his research of other properties located near similar water tanks, there was no
decline in the value of those properties following the erection of the water tank;
consequently, he opined that there were no incidental damages to the remainder of Mr.
Cawthon’s property as a result of the construction of the water tank.
Mr. Cawthon testified that the erection of a 50-foot high concrete structure at the
highest and most level point on the property “defaced” it and changed its character from a
“very desirable residential site” to “more like an industrial site.” Mr. Cawthon did not give
his opinion as to the amount of incidental damages, though he stated that he agreed with Mr.
Parrish’s estimate regarding the loss of value to the land due to the taking and construction
of the water tank. Mr. Parrish testified that there were incidental damages to the remainder
of Mr. Cawthon’s property as a result of the taking, concluding that the future development
of the property had been adversely affected because the most desirable spot on which to build
a residence on the property, the highest and most level spot with the best view of the
surrounding area, was where the City built the water tank. Mr. Parrish explained that in his
professional experience, hillside and hilltop property in Williamson County is some of the
most desirable land because property owners want to showcase their homes. He further
explained that Mr. Cawthon’s property was unique because the hill on his property had a
“commanding view” compared to the other hills in the area and that such views from hilltops
brought in “premium prices” in Williamson County. Based on this experience, Mr. Parrish
1
Mr. Cawthon’s property is actually divided by Ragsdale Road, a public road. Prior to the taking,
the tract on the eastern side of the road consisted of 8.78 acres while the tract on the western side of the road
consisted of 26.7 acres. The 0.72 acres taken was located solely on the western tract.
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concluded that the loss of the view from the top of the hill on the property would adversely
affect the value of Mr. Cawthon’s remaining property.
Mr. Parrish testified that incidental damages were also appropriate because the
property was less aesthetically pleasing after the taking and the construction of the water
tank. Mr. Parrish explained that he had worked on condemnation cases involving Tennessee
Valley Authority electricity transmission lines and Tennessee Department of Transportation
elevated highway and bridge projects and, in his professional experience, such eyesores
diminished the value of a property near them. Mr. Parrish also testified that while he was not
aware of any studies specifically regarding above ground water tanks such as the one in this
case, he had seen TVA and TDOT studies related to power lines and elevated highways that
showed a diminution in value of up to 80-85 percent. Mr. Parrish opined that there was a
12.5 percent diminution in value to the western tract of Mr. Cawthon’s property due to the
loss of the property’s hilltop view and the decline in aesthetics with the water tank on the
highest hilltop on the property.
The City objected to Mr. Parrish’s testimony regarding incidental damages as being
beyond the scope of discovery, lacking in foundation, irrelevant and inadmissible. The trial
court overruled the objection finding that Mr. Parrish was merely making a general statement
as to how he realized his conclusions as opposed to relying on specific technical data. The
court also overruled the objection on the grounds that Mr. Parrish’s testimony was relevant
and that the City was free to cross-examine Mr. Parrish regarding his analysis and
methodology. The trial court then instructed the jury that in their deliberations regarding
value it would be for them to determine whether the experts used proper or correct data in
their analysis.
The jury returned a verdict and a judgment was entered awarding $43,200 for the
value of the land taken and $194,850 for the incidental damages to the remainder of the
property, resulting in a total award of $238,050. The City appeals only the award of
incidental damages on the grounds that Mr. Cawthon’s expert witness testimony regarding
incidental damages was inadmissible and without such testimony there was no other evidence
to support an award of incidental damages.
II. Discussion
The issues on appeal relate solely to the award of incidental damages. This case was
heard by a jury and generally when jury trials are involved, our task is to determine whether
there is any material evidence to support the jury’s verdict. See Harper v. Watkins, 670
S.W.2d 611, 631 (Tenn. Ct. App. 1983); Lassetter v. Henson, 588 S.W.2d 315, 317 (Tenn.
Ct. App. 1979); see also Tenn. R. App. P. 13(d). The City, however, does not assert that the
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jury’s verdict is unsupported by the evidence; rather, the City contends that the trial court
erred in admitting William Parrish’s expert testimony regarding the existence and amount of
incidental damages. The City contends that Mr. Parrish’s testimony failed to meet reliability
and relevance standards and lacked foundational support for the methodology used in
determining the amount of incidental damages. The City asserts that without Mr. Parrish’s
testimony, Mr. Cawthon failed to meet his burden of proof that there were any incidental
damages to the remainder of the property. The City asks this Court, therefore, to reverse the
judgment of the trial court as to the amount of incidental damages and remand the case for
an order based on the otherwise admissible evidence in the record.
When property is taken under the power of eminent domain, the Tennessee
Constitution requires that a landowner be compensated for the value of the land taken. Tenn.
Const. Art. 1, § 21. Tennessee statutes also provide that a landowner is entitled to any
incidental damages, which may have resulted to the remainder of the owner’s property, after
deducting from the incidental damages the value of any special benefits resulting from the
improvement. Tenn. Code Ann. § 29-16-114(a)(1); Tenn. Code Ann. § 29-17-910.
Incidental damages are generally measured by the difference in the remaining
property’s fair market value immediately before and immediately after the taking. Mills v.
Solomon, 43 S.W.3d 503, 508-09 (Tenn. Ct. App. 2000); Betty v. Metropolitan Gov’t, 797
S.W.2d 1, 7 (Tenn. Ct. App. 1992); Shelby County v. Kingsway Greens of America, Inc., 706
S.W.2d 634, 638 (Tenn. Ct. App. 1985); State ex rel. Shaw v. Gorman, 596 S.W.2d 796, 797
(Tenn. 1980). Incidental damages should be measured in relation to the entire tract of
property. Mills, 43 S.W.3d at 509; see Blevins v. Johnson County, 746 S.W.2d 678 (Tenn.
1988); State ex rel. Pack v. Walker, 423 S.W.2d 473 (Tenn. 1968). Factors that may be
considered in determining the existence and extent of incidental damages include the loss of
use of the property for any lawful purpose, any unsightliness of the property or inconvenience
in its use, any impairment to the owner’s access to nearby streets and highways and any other
consideration that could reduce the fair market value of the remaining property. 26 Am. Jur.
2d Eminent Domain § 284 (2010); 8 Tenn. Prac. Pattern Jury Instr. - Civil § 11.04 (2009).
The landowner bears the burden of proof and of producing evidence as to the issue of
compensation. Catlett v. State, 336 S.W.2d 8, 11 (Tenn. 1940); Town of Erin v. Brooks, 230
S.W.2d 397, 411 (Tenn. 1950); Lebanon & Nashville Turnpike Co. v. Creveling, Comm’r,
et al., 17 S.W.2d 22, 24 (Tenn. 1929).
The City’s central challenge relates to the trial court’s admission of Mr. Parrish’s
expert testimony regarding the existence and amount of incidental damages. The City asserts
that Mr. Parrish’s testimony failed to meet the reliability standards for expert testimony
because, according to the City, it was not supported by any facts or data, was not calculated
by any methodology and was based upon mere speculation. The City further contends that
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Mr. Parrish’s testimony did not satisfy the requirements of proof for incidental damages
because Mr. Parrish’s opinion failed to calculate the fair cash market value of the remaining
property immediately after the taking.
Tennessee Rules of Evidence 702 and 703 govern the admissibility of expert
testimony in Tennessee. Rule 702 states that “[i]f scientific, technical, or other specialized
knowledge will substantially assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Rule 703 provides in relevant
part:
The facts or data in the particular case upon which an expert bases an opinion
or inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject, the fact or
data need not be admissible in evidence. . . . The court shall disallow
testimony in the form of an opinion or inference if the underlying facts or data
indicate lack of trustworthiness.
Accordingly, the trial court “must determine that the expert testimony is reliable in that the
evidence will substantially assist the trier of fact to determine a fact in issue and that the
underlying facts and data appear to be trustworthy.” Brown v. Crown Equipment Corp., 181
S.W.3d 268, 274 (Tenn. 2005). The rules, however, do not require that the scientific
evidence be generally accepted in order to be valid, so long as it substantially assists the trier
of fact and its underlying facts and data appear to be trustworthy. McDaniel v. CSX Transp.,
Inc., 955 S.W.2d 257, 265 (Tenn. 1997).
When determining the reliability of nonscientific expert testimony, the court may also
consider the following nondefinitive factors:
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(1) the McDaniel factors,2 when they are reasonable measures of the reliability
of expert testimony; (2) the expert's qualifications for testifying on the subject
at issue; and (3) the straightforward connection between the expert's
knowledge and the basis for the opinion such that no “analytical gap” exists
between the data and the opinion offered.
State v. Stevens, 78 S.W.3d 817, 835 (Tenn. 2002).
When it comes to the admissibility of expert testimony, the role of the trial court is
that of a gatekeeper. State v. Scott, 275 S.W.2d 395, 401-02 (Tenn. 2009) (citing State v.
Copeland, 226 S.W.3d 287, 300-01 (Tenn. 2007); Johnson v. John Hancock Funds, 217
S.w.3d 414, 425 (Tenn. Ct. App. 2006)). “Their role ‘is to ensure that an expert, whether
basing testimony upon professional studies or personal experience, employs in the courtroom
the same level of intellectual rigor that characterizes the practice of an expert in the relevant
field.’” Id. (quoting Brown, 181 S.W.3d at 275); see also Kumho Tire Co. v. Carmichael, 526
U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). It is important to emphasize,
however, that once the evidence is admitted, “it will thereafter be tested with the crucible of
vigorous cross-examination and countervailing proof.” Stevens, 78 S.W.3d at 835 (citing
McDaniel, 955 S.W.2d at 265). Moreover, it is worth emphasizing that the weight to be
given to stated expert opinion and the resolution of legitimate but competing expert views
are matters appropriately entrusted to the trier of fact. Id.
Questions pertaining to the admissibility of expert testimony are matters left to the
trial court’s discretion. Brown, 181 S.W.3d at 273; McDaniel, 955 S.W.2d at 263. This is
particularly true in condemnation cases where a trial court is allowed “wide discretion” when
ruling on the admissibility of an expert’s testimony as to the value of the land taken “because
the weight to be given each expert’s testimony is for the trier of fact.” City of Murfreesboro
v. Pierce Hardy Real estate, Inc., M2000-00562-COA-R9-CV, 2001 WL 1216992, at *2
(Tenn. Ct. App. Oct. 12, 2001) (citing State ex rel. Dep’t of Transp. v. Brevard, 545 S.w.2d
431, 436 (Tenn. Ct. App. 1976); Johnson City v. Outdoor West, Inc., 947 S.W.2d 855, 858
2
In McDaniel, the court identified five nonexclusive factors that may be considered in determining
the reliability of scientific expert testimony:
(1) whether scientific evidence has been tested and the methodology with which it has been
tested; (2) whether the evidence has been subjected to peer review or publication; (3)
whether a potential rate of error is known; (4) whether . . . the evidence is generally accepted
in the scientific community; and (5) whether the expert's research in the field has been
conducted independent of litigation.
McDaniel, 955 S.W.2d at 265.
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(Tenn. Ct. App. 1996); State Dep’t of Transp. v. Veglio, 786 S.W.2d 944, 947-48 (Tenn. Ct.
App. 1989). Accordingly, we review the trial court’s determination of the admissibility of
an expert witness’s testimony under an abuse of discretion standard. City of Murfreesboro,
2001 WL 1216992 at *2; State Dep’t of Transp. v. Veglio, 786 S.W.2d 944, 947-48 (Tenn.
Ct. App. 1989). “A trial court abuses its discretion when it applies incorrect legal standards,
reaches an illogical conclusion, bases its decision on a clearly erroneous assessment of the
evidence, or employs reasoning that causes an injustice to the complaining party.” Scott, 275
S.W.3d at 404-405 (citing Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249
S.W.3d 346, 358 (Tenn.2008)). The abuse of discretion standard does not permit the
appellate court to substitute its judgment for that of the trial court. Eldridge v. Eldridge, 42
S.W.3d 82, 85 (Tenn. 2001).
The City objected to Mr. Parrish’s testimony related to the issue of incidental
damages, asserting that the testimony was outside the scope of discovery, lacked a
foundation, was irrelevant, was not supported by reliable facts or data or calculated by any
methodology, and was based on his mere speculation. Specifically, the City argued that Mr.
Parrish acknowledged that there were no professional studies conducted regarding the impact
of water tanks on surrounding property values and that the TVA and TDOT reports
referenced in his testimony were not only irrelevant in that they did not study water tanks,
but that had not been disclosed in Mr. Parrish’s expert opinion report submitted to the trial
court. The City further objected to Mr. Parrish’s opinion that the property suffered a 12.5
percent loss of value as a result of the construction of the water tank because it was not based
on any methodology, but merely his speculation.
The trial court admitted Mr. Parrish’s testimony, concluding that Mr. Parrish was
merely making general statements about his professional experience with the TVA and
TDOT studies and the manner in which such experience generally informed his analysis in
this case. The trial court clarified that if Mr. Parrish intended to “get[] into the technicality
of the reports” then the trial court would sustain the City’s objection with respect to those
reports since the reports were not included in Mr. Parrish’s expert opinion report submitted
to the court as evidence. The City also objected to Mr. Parrish’s opinion testimony as to the
amount of incidental damages; the trial court overruled the objection explaining that the City
was free to cross-examine Mr. Parrish about the issue. The court also instructed the jury that
the matter of whether the experts used proper or correct data in their analysis would be a
primary issue for them to decide as part of their duties.
On appeal, the City argues that “Mr. Parrish did not refer to any comparable sales,
market data or any other facts upon which he might have based his opinion” that Mr.
Cawthon’s property on the west side of Ragsdale Road had a diminished value of 12.5
percent as a result of the tank being built at the crest of the hill. Further, the City points out
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that Mr. Parrish admitted on cross-examination that he had not researched the sales of
properties surrounding other water tanks in the vicinity as such research was not “part of [his]
assignment.” The City concedes that Mr. Parrish’s testimony would be considered non-
scientific; however, it argues that Mr. Parrish was still required to employ a foundational
methodology when reaching his opinion and that he failed to do so because he failed to
explain how he arrived at his opinion of 12.5 percent diminution in value other than to rely
on TVA power line and TDOT highway cases, which the City contends are irrelevant to the
issue of water tanks. The City also contends that Mr. Parrish’s testimony was “merely an
iteration of what he believed would be within the juror’s common sense, disguised as an
expert opinion,” which does not satisfy the requirement that expert testimony “substantially
assist” the trier of fact to be admissible. Finally, the City asserts that the trial court utilized
an incorrect legal standard by instructing the jury to determine “whether the experts used
proper or correct data in their analysis,” thus incorrectly shifting the burden of gatekeeper of
expert testimony to the jury.
We do not find that the trial court abdicated its role as gatekeeper or otherwise abused
its discretion in admitting Mr. Parrish’s testimony relating to incidental damages. The
gatekeeper role that the trial court plays with respect to expert testimony is “to ensure that
an expert, whether basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that characterizes the practice
of an expert in the relevant field.” Scott, 275 S.W.2d at 401-02. The Tennessee Supreme
Court recently clarified the trial court’s role as gatekeeper with respect to expert testimony:
While a trial court's role as a gatekeeper is critical, it is not unconstrained.
When making an admissibility determination, trial courts are not empowered
to choose between legitimate competing expert theories by excluding the lesser
of the two. To the contrary, that task must be left to the trier of fact. The party
proffering expert testimony need not establish that the expert testimony is
correct, only that the expert testimony “rests upon ‘good grounds.’” Where
such a foundation exists, even if the trial court is of the view that there are
better grounds for an alternative conclusion, the proffered expert testimony
“should be tested by the adversary process-competing expert testimony and
active cross-examination-rather than excluded from jurors' scrutiny for fear
that they will not grasp its complexities or satisfactorily weigh its
inadequacies.”
Scott, 275 S.W.3d at 404 (internal citations omitted).
In addition to testifying about his experience as a real estate appraiser generally, Mr.
Parrish testified about his personal experience and familiarity with other large public works
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projects that diminished the visual appeal of properties in their vicinity. This testimony
served to establish a connection between Mr. Parrish’s knowledge of and experience with
large public projects that were not aesthetically pleasing and the basis for his opinion as to
the impact of the large concrete structure affecting the property in this particular case. See
Stevens, supra. We note the trial court’s statement while ruling on the City’s motion for a
directed verdict that “while still testifying within his field [of expertise], certainly [he] was
reaching a bit” and understand the City’s contention that Mr. Parrish did not fully explain
how or why he concluded that the water tank resulted in 12.5 percent diminution in value.
Nevertheless, there was sufficient connection between Mr. Parrish’s knowledge and
experience to give reliability to his opinion, such that we cannot conclude that the trial court
abused its discretion in allowing the testimony, which could then be challenged on cross-
examination and ultimately weighed by the jury. See Scott, 275 S.W.3d at 404; see also
Pierce v. Hardy, No. M2000-00562-COA-R9-CV, 2001 WL 1216992, at *4 (Tenn. Ct. App.
Oct. 2001) (the methodology used by an appraiser goes to the weight to be given his opinion
. . . and the trier of fact is the final arbiter as to the credibility and weight of testimony);
Davidson County Bd. of Educ. v. First Am. Nat’l Bank, 202 Tenn. 9, 301 S.W.2d 905, 911
(Tenn. 1957).
B. Proper Measure of Incidental Damages
The City contends that Mr. Parrish’s expert opinion of the amount of incidental
damages should have been “disregarded” because he failed to use the proper methodology
for calculating incidental damages. Specifically, the City contends that Mr. Parrish (1)
focused on a “percentage loss” of value rather than determine the fair market value of the
property immediately after the taking and (2) “blurred the distinction between damages for
the property taken and damages to the remainder” by “equat[ing] the loss of view from the
top of the hill with ‘unsightliness of the property.’” The City further contends that without
Mr. Parrish’s testimony, there was no other evidence in the record to support an award of
incidental damages.
As previously noted, incidental damages are generally measured by the difference in
the remaining property’s fair cash market value, immediately before and immediately after
the taking. Mills, 43 S.W.3d at 508-09; State ex rel. Shaw, 596 S.W.2d at 797; Betty, 797
S.W.2d at 7. Incidental damages are appropriate when the “difference” between the value
before and the value immediately after the taking is a diminution in value of the remaining
property. See Tenn. Code Ann. § 29-16-114(a)(1); Tenn. Code Ann. § 29-17-910. All
capabilities of the property and all the legitimate uses for which it is available and reasonably
adapted are to be considered in determining value. Love v. Smith, 566 S.W.2d 876, 878
(Tenn. 1978). Accordingly, in determining the difference or diminution in value, it is
appropriate to consider the ways in which the taking adversely affected the capabilities and
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uses of the property, including unsightliness of the property or inconvenience in its use. See
8 Tenn. Prac. Pattern Jury Instr. - Civil § 11.04 Partial Taking – Incidental Damages (2009).
Mr. Parrish testified that the taking of the property and construction of the water tank
diminished the value of the remainder of the western tract of Mr. Cawthon’s property by 12.5
percent; in other words, the value of Mr. Cawthon’s property immediately after the taking
was 12.5 percent less than immediately before the taking. Applying this percentage figure
to the pre-taking value of the property resulted in a monetary figure of $194,850, the amount
awarded by the jury. While Mr. Parrish’s methodology of calculating incidental utilized a
percentage of loss to the property’s value prior to the taking rather than a determination of
actual value after the taking (and subtraction of that figure from the pre-taking value) may
not be the easiest or most preferred method for calculating incidental damages, the method
is based on more than mere speculation inasmuch as it incorporates and gives credence to the
elements properly considered in determining whether incidental damages have been incurred,
e.g., unsightliness of the property and inconvenience in its use. “[A]n expert witness is not
disqualified to testify merely because he may have used some criteria in arriving at his
opinion which is not altogether the standard among appraisers.” Pierce, 2001 WL 1216992,
at *4; Brevard, 545 S.W.2d at 436. “[T]he methodology used by an appraiser goes to the
weight to be given his opinion.” Pierce, 2001 WL 1216992, at *4 (citing Davidson County
Bd. of Educ. v. First Am. Nat’l Bank, 202 Tenn. 9, 301 S.W.2d 905, 911 (Tenn. 1957). Mr.
Parrish’s testimony was subjected to cross-examination and the jury properly instructed to
accord it such weight as the jury it determined to be appropriate. Accordingly, we do not
find that Mr. Parrish’s expert opinion should have been “disregarded,” as the City contends.
We also do not find that Mr. Parrish “blurred” the lines between the value of the
property taken and the incidental damages to the remainder of the property in his analysis.
Mr. Parrish’s report and testimony clearly differentiated between the two values and Mr.
Parrish conducted separate analyses for each amount. Mr. Parrish appropriately included the
unsightliness of the property with the water tank being visible from Mr. Cawthon’s
remaining property. See 8 Tenn. Prac. Pattern Jury Instr. - Civil § 11.04 Partial Taking –
Incidental Damages. We find it was also appropriate for Mr. Parrish to include in his
consideration of the amount of incidental damages the remaining property’s loss of the view
of the surrounding area from the top of the hill. Mr. Parrish testified that it was his personal
experience that properties in the area that did not have a hilltop on which to build and view
the surrounding area would not be as valuable as a property with such a hilltop. In
determining the market value of property, whether measuring such value before the taking
or after, every element which can fairly enter into the question of value may be considered.
See Love, 566 S.W.2d at 878; Brevard, 545 S.W.2d at 434; Alloway v. City of Nashville, 88
Tenn. 510, 13 S.W. 123 (1890). Consequently, we do not think that Mr. Parrish’s opinion
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as to the amount of incidental damages due Mr. Cawthon improperly included the loss of the
hilltop view as it is clearly an element of value for this particular property.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.
Costs are assessed to the Appellant, the City of Brentwood.
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RICHARD H. DINKINS, JUDGE
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