The Town of Collierville, Tennessee, Schilling, Inc., Jane Porter Feild, and Joel H. Porter v. Norfolk Southern Railway Company

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
THE TOWN OF COLLIERVILLE, )
TENNESSEE, SCHILLING, INC., )
JANE PORTER FEILD, and )
JOEL H. PORTER, )
) FILED
Plaintiffs/Appellees, ) Shelby Circuit Nos. 84436 & 85824
) March 6, 1998
VS. ) Appeal No. 02A01-9706-CV-00134
) Cecil Crowson, Jr.
NORFOLK SOUTHERN RAILWAY ) Appellate C ourt Clerk
COMPANY, )
)
Defendant/Appellant. )
APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
AT MEMPHIS, TENNESSEE
THE HONORABLE JOHN R. McCARROLL, JUDGE
RALPH T. GIBSON
EVERETT B. GIBSON LAW FIRM
Memphis, Tennessee
Attorney for Appellant
HOMER B. BRANAN, III
BRIAN L. KUHN
HAROLD W. FONVILLE, II
FARRIS, MATTHEWS, GILMAN,
BRANAN & HELLEN, P.L.C.
Memphis, Tennessee
Attorneys for Appellee Town of Collierville, Tennessee
JOHN McQUISTON, II
EVANS & PETREE
Memphis, Tennessee
Attorney for Appellee Schilling, Inc.
C. THOMAS CATES
BURCH, PORTER & JOHNSON, PLLC
Memphis, Tennessee
Attorney for Appellees Jane Porter Feild and Joel H. Porter
REVERSED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J.
Defendant Norfolk Southern Railway Company appeals the trial court’s orders of
possession entered in favor of Plaintiff/Appellee Town of Collierville in two eminent domain
cases. In entering its orders of possession, the trial court ruled that, as a matter of law, the
Town of Collierville had the right to condemn easements across Norfolk Southern’s railroad
track for the purpose of constructing two grade crossings and that Norfolk Southern was
not entitled to an evidentiary hearing on the right-to-take issue. For the reasons hereinafter
stated, we reverse the trial court’s orders of possession and remand for further
proceedings.
In January 1997, the Town of Collierville filed two petitions for condemnation1
against Norfolk Southern and other parties in which the Town sought to condemn
temporary and permanent easements across Norfolk Southern’s railroad track within the
Town of Collierville.2 The Town later filed motions for issuance of immediate writs of
possession pursuant to Tennessee Code Annotated section 29-17-803 (1980). 3 In support
of its motions, the Town filed the affidavit of the Town’s city administrator, James Lewellen,
which indicated that the grade crossings were necessary to extend two of the Town’s
streets, Bray Station Road and Shea Road, across Norfolk Southern’s railroad track.
Lewellen’s affidavit further averred that these crossings were necessary for the Town’s
future development and, specifically, for access to a planned hospital, fire station, and
public school.
1
The Town actually filed three such cond em natio n pet itions ; how ever , this a ppe al invo lves o nly two
of the petitions.
2
By statute, the Town of Collierville and other m unicipalities are “authorized and em powered to acquire
by the exer cise of the power o f emin ent dom ain, . . . such righ t-of-way, land , mate rial, easem ents and rights
as may be deemed necessary, suitable or desirable for the construction, reconstruction, maintenance, repair,
drainage or protection of any street, road, highway, freeway or parkway.” T.C.A. § 29-17-801(a)(1) (Supp.
1981).
3
As pertin ent, sec tion 29-17 -803 pro vides tha t:
After the expiration of five (5) days from the date of the giving of
[notice of the filing of a condemnation petition] if the right to take is not
questioned, the condemner shall have the right to take possession of the
property or property rights s ought to b e cond emn ed, and if n ecess ary to
place such condemner in possession thereof, the court shall issue a writ of
possession to the sheriff of the county to put the cond em ner in possession.
T.C.A. § 29-17-803(c) (198 0).
2
Norfolk Southern responded to the motions by filing a written objection in which it
argued, inter alia, that the proposed grade crossings were unnecessary, redundant of other
nearby crossings, and dangerous to the public. Norfolk Southern’s objection further argued
that placing the “redundant and hazardous grade crossings over [its] right of way [would]
materially interfere with [its] use of [the] right of way.” Norfolk Southern requested the trial
court to delay a hearing on the motions until it could complete discovery. In support of its
written objection, Norfolk Southern filed the affidavit and report of a licensed professional
engineer which addressed some of Norfolk Southern’s safety concerns with the Town’s
locations of the proposed grade crossings.
The trial court conducted a hearing on the Town’s motions at which the court
considered the parties’ pleadings and affidavits. At the hearing’s conclusion, the trial court
entered orders granting the writs of possession in which the court ruled that (1) the Town
had the right to condemn the property in question; (2) the takings were for a proper public
use; (3) the takings did not destroy or render extremely difficult the use of the land for
railroad purposes; and (4) the advisability of the takings was not an issue for the court.
The trial court certified its orders granting the writs of possession as final judgments
pursuant to rule 54.02 of the Tennessee Rules of Civil Procedure. The trial court also
entered an order consolidating the cases for purposes of trial and appeal.
As an initial matter, we find it necessary to examine the “avenue” by which this
appeal is being pursued before this court. See, e.g., Ridley v. Ridley, No.
03A01-9708-GS-00350, 1998 WL 8449, at *1 (Tenn. App. Jan. 13, 1998). Having done
so, we conclude that the trial court’s orders are not reviewable under rule 54.02, despite
the trial court’s certification to that effect, because the orders do not dispose of an entire
claim or party as required by that rule.
Rule 54.02 provides that
3
when more than one claim for relief is present in an action,
whether as a claim, counterclaim, cross-claim, or third party
claim, or when multiple parties are involved, the court, whether
at law or in equity, may direct the entry of a final judgment as
to one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason for
delay and upon an express direction for the entry of
judgment. . . .
T.R.C.P. 54.02. In construing this provision, our supreme court has held that “[a]n order
made final pursuant to [rule] 54.02 must be dispositive of an entire claim or party.”
Bayberry Assocs. v. Jones, 783 S.W.2d 553, 558 (Tenn. 1990). In doing so, the court
noted that rule 54.02 certification by trial courts is improper unless the order certified could
properly be viewed as a final judgment as to at least one claim or party in the lawsuit. Id.
at 557 n.2.
As previously indicated, the trial court’s orders determined only the issue of the
Town’s right to immediate possession of the easements over Norfolk Southern’s railroad
tracks. The orders of possession did not dispose of the Town’s condemnation actions
because the orders did not purport to determine all of the issues before the trial court
relating to the condemnation claims, most notably the issue of any damages due Norfolk
Southern. Inasmuch as the trial court’s orders did not dispose of “an entire claim or party,”
we conclude that the orders are not reviewable under rule 54.02. Bayberry Assocs., 783
S.W.2d at 558.
Our conclusion that the subject orders are not reviewable under rule 54.02 is
supported by this court’s decision in Alcoa Development & Housing Authority v. Monday,
1991 WL 12291 (Tenn. App. Feb. 7, 1991). In the Alcoa case, the trial court, pursuant to
rule 54.02, attempted to certify as final an order of possession which determined the
Housing Authority’s right to possession of the subject property but which did not dispose
of all of the issues between the parties. Id., at *1. Judge McMurray, writing for the eastern
section of this court, concluded that the order was not reviewable under rule 54.02. Id. He
explained:
4
This is an appeal from an order of possession in an
eminent domain case. We first note that the order of the trial
court disposes of only a part of the issues joined between the
parties. The trial judge, in his order, attempted to make the
order a final appealable order pursuant to Rule 54.02 of the
Tennessee Rules of Civil Procedure. He specifically stated in
his order that “the court finds and determines that there is no
just reason for delay and directs that this is a final order as to
the issues joined in this order.” We are of the opinion that the
circumstances of this case do not fall within the contemplation
of Rule 54.02 of the Tennessee Rules of Civil Procedure but
would be more properly addressed as an interlocutory appeal
pursuant to Rule 9 of the Tennessee Rules of Appellate
Procedure.
Alcoa, 1991 WL 12291, at *1; see also Crane v. Sullivan, No. 01A01-9207-CH-00287,
1993 WL 15154, at **1-2 (Tenn. App. Jan. 27, 1993) (concluding that trial court
improvidently certified order as final judgment pursuant to rule 54.02 where order granted
injunctive relief but reserved ruling on other matters contained in pleadings, including
determination of boundary line and award of damages).
Although the Alcoa court concluded that the order of possession was not reviewable
pursuant to rule 54.02, the court found the case suitable for rule 9 application and, thus,
elected to review the case as an interlocutory appeal. Alcoa, 1991 WL 12291, at *1;
T.R.A.P. 9. In doing so, the court waived any requirements of rule 9 with which the
appellant had not complied. Alcoa, 1991 WL 12291, at *1; see T.R.A.P. 2 (providing that,
with certain exceptions, this court may, “[f]or good cause, including the interest of
expediting decision upon any matter, . . . suspend the requirements or provisions of any
of these rules in a particular case on motion of a party or on [the court’s] motion and may
order proceedings in accordance with its discretion”). In the interest of judicial economy,
we similarly elect to treat the subject appeal as an interlocutory appeal by permission
pursuant to rule 9. See also Munke v. Munke, 882 S.W.2d 803, 805 (Tenn. App. 1994);
B.L. Hodge Co. v. Roxco, Ltd., No. 03A01-9704-CH-00144, 1997 WL 644960, at *1 n.3
(Tenn. App. Oct. 16, 1997); T.R.A.P. 9.
Having elected to review this appeal under rule 9, we now turn to the merits of the
single issue presented in this case, that of whether Norfolk Southern was entitled to an
evidentiary hearing on the Town’s right to take the property in question. The parties agree
5
that the standard regarding the Town’s right of condemnation is set forth in City of
Memphis v. Southern Railway Co., 67 S.W.2d 552 (Tenn. 1934), wherein our supreme
court stated that:
The right to establish a highway across a railroad is
quite commonly held to be conferred on a municipality by a
general grant of power to lay out, open, and extend streets and
highways and to condemn land for that object, provided such
a taking will not destroy the use of the land for railroad
purposes. An incidental interference with railroad use will not
defeat this right of the city. If, however, the projection or
extension of the highway across the railroad property will
destroy or render very difficult its use by the railroad company,
the taking will not be permitted except upon specific legislative
authority. . . .
....
“Where property has been legally condemned or
acquired by purchase for a public use, and has been or is
about to be appropriated for such use, it cannot be taken for
another public use which will totally destroy or materially impair
or interfere with the former use, unless the intention of the
Legislature that it should be so taken has been manifested in
express terms or by necessary implication.”
City of Memphis, 67 S.W.2d at 553 (emphases added) (quoting Memphis State Line R.R.
Co. v. Forest Hill Cemetery Co., 94 S.W. 69, 71 (Tenn. 1906)).
The foregoing standard permits the Town of Collierville to condemn the easements
across Norfolk Southern’s right-of-way unless such condemnation will destroy, render very
difficult, or materially impair or interfere with Norfolk Southern’s prior use of the right-of-
way. City of Memphis, 67 S.W.2d at 553; accord State of Georgia v. City of Chattanooga,
4 Tenn. App. 674, 680-81 (1927) (“[U]nder the well-settled law of this State, the city has
the power to condemn an easement for street purposes across property already devoted
to a public use, provided said use for street purposes will not materially impair or interfere
with the public use to which the property is already being put.”). Accordingly, we must
examine the objections raised by Norfolk Southern in its response to the Town’s motions
for issuance of immediate writs of possession to determine if Norfolk Southern has raised
any justiciable issues relative to this standard.
6
In opposing the Town’s motions, Norfolk Southern contended that the Town’s
condemnation of the easements for use as grade crossings over Norfolk Southern’s right-
of-way would materially interfere with Norfolk Southern’s use of the right-of-way. In support
of this objection, Norfolk Southern presented the affidavit and report of George L. Reed,
a licensed professional engineer specializing in traffic and transportation engineering.
Reed’s report stated that the distance between the railroad track and Poplar Avenue at
each of the proposed grade crossings was less than fifty feet, and that this distance was
inadequate for proper vehicle storage or for development of a safe railroad crossing.
Specifically, Reed’s report explained that:
. . . . The Norfolk Southern track parallels Poplar Avenue, and
for most of the site distance along the site frontage, is located
immediately adjacent (south) of the roadway. This presents a
very difficult visual recognition problem for motorists traveling
along Poplar who may not be aware of, or may not see the rail
crossings. Even worse, these motorists may not see a train or
may not be able to effectively judge its speed if it is
approaching from behind, particularly if the motorist and the
train are traveling at nearly the same speed. The motorist may
not be aware there is a grade crossing immediately south of
Poplar and may suddenly come upon the crossing, or vehicles
stopped for the crossing. . . .
The short distance between the track and Poplar Avenue
presents another hazard, because there is insufficient distance
at the proposed Shea and Bray Station Roads to properly store
stopped vehicles between the track and Poplar. . . . This is a
particular problem for long vehicles, including large trucks,
transit buses and school buses, who may not be able to clear
the track before being trapped or required to stop at Poplar
Avenue. The importance of this point was underlined by the
1995 Fox River Grove, Illinois school bus crash.
Although case law in this area appears to be somewhat sparse, we conclude that
the objection raised by Norfolk Southern presents a justiciable issue concerning the Town’s
right to take which the trial court should have determined at an evidentiary hearing prior to
issuing the writs of possession. Other jurisdictions have recognized a similar standard for
determining a municipality’s right to condemn an easement over railroad property
previously dedicated to public use. In Florida East Coast Railway Co. v. Broward County,
421 So. 2d 681 (Fla. Dist. Ct. App. 1982), the District Court of Appeal of Florida, in
describing what it called the “traditional prior use doctrine,” explained:
7
Under [the traditional prior use] doctrine, property devoted to
a public use cannot be taken and appropriated to another or
different public use unless the authority to do so has been
expressly given by the legislature or may be necessarily
implied. Thus, the power of condemnation may not be
exercised where the proposed use will destroy an existing
public use in the absence of specific legislative authority. . . .
However, when a taking will not materially impair or interfere
with or is not inconsistent with the existing use, and the
proposed use is not detrimental to the public, then a court
possesses authority to order a taking of the property.
Florida East Coast, 421 So. 2d at 683 (emphasis added).
In Georgia Southern & Florida Railway Co. v. City of Warner Robins, 130 S.E.2d
151 (Ga. Ct. App. 1963), the Court of Appeals of Georgia stated that:
“If the conditions are such that they may be reasonably made
to consist, there is no such encroachment upon the prior public
use as even appreciably to impair, much less extinguish, it;
and therefore, even though some slight inconvenience may
result to the prior occupant, there is no reason why a second
public use, when granted even in general terms, may not be
held to confer upon the public authorities the right in such
manner to exercise it. A different result follows, however,
when the enjoyment of the second use involves the practical
extinguishment of the former, or renders its exercise so
extremely inconvenient and hazardous as practically to destroy
its value. In such a case the right to enjoy the second use
must rest upon express legislative authority, and will not be
implied. The exercise of the second use, under such
circumstances, would amount to a forfeiture of the first.”
Georgia Southern, 130 S.E.2d at 153-54 (emphasis added) (quoting City Council of
Augusta v. Georgia R.R. & Banking Co., 26 S.E. 499, 500 (Ga. 1896)).
We recognize that the standard set forth by the Georgia court is stricter than the
standards applied in Tennessee and Florida. The Georgia court required a showing that
the municipality’s use of the property would either practically extinguish the railroad’s prior
use, or render its exercise so extremely inconvenient and hazardous as practically to
destroy its value. Georgia Southern, 130 S.E.2d at 153. In contrast, the Tennessee and
Florida standards only require a showing that the municipality’s use of the property would
materially impair or interfere with the railroad’s prior use of its right-of-way. City of
Memphis, 67 S.W.2d at 553; Florida East Coast, 521 So. 2d at 683.
8
Nevertheless, we consider the Florida and Georgia courts’ treatments of this subject
to be significant for at least two reasons. First, the Florida and Georgia courts’ tests
indicate that, when courts are examining the deleterious effects of the municipality’s use
of the property upon the railroad’s prior use, the courts may consider the detriment to the
public and the hazards created by the municipality’s later use. Additionally, the Georgia
court indicated that, as a general rule, the railroad has the right to present evidence on this
issue. In Georgia Southern, the court held that
where a condemnor, under the doctrine of implied rather than
express authority, seeks to take the property of another which
previously has been dedicated to a public use, the condemnee
as a matter of law has the right to offer evidence to show that
the taking would practically extinguish the former use or render
its exercise so extremely inconvenient and hazardous as
practically to destroy its value.
Georgia Southern, 130 S.E.2d at 154.
In light of these authorities, we hold that the safety concerns raised in Norfolk
Southern’s objection to the Town’s motions for issuance of immediate writs of possession
were sufficient to entitle Norfolk Southern to an evidentiary hearing on the issue of whether
the Town’s use of the property will materially impair or interfere with Norfolk Southern’s
railroad operations.4 Accordingly, we reverse the trial court’s orders of possession and
remand for the trial court to conduct an evidentiary hearing on this issue.5
In reversing the trial court’s orders, we do not mean to suggest that any proven
safety hazard will result in a denial of the Town’s condemnation actions on remand. By
4
W e recognize that similar sa fety concerns were rejected by the court in Mobile & Ohio Railroad Co. v.
Mayor of Union City, 194 S.W. 572 (Te nn. 1 917 ). In tha t cas e, ho weve r, the p rior us e doc trine d id not apply
because the legislature had enac ted s pec ific legislation conferring upon Union City the authority to condemn
the railroad pro perty soug ht to be ac quired the rein. Id. at 573; see also Southern Ry. Co. v. City of Mem phis ,
148 S.W . 662, 664 (Tenn. 1912) (whe rein legislature had enacted specific legislation conferring upon City of
Mem phis authority to appropriate railroad property for park or parkway purpos es).
5
In remanding for an evidentiary hearing, we reject the argument that Tennessee Code Annotated
section 29-1 7-80 8 pre clud es N orfo lk Southern from litigating any issue except the amount of compensation
to be paid for the taking. Section 29-17-808 provides that “[t]he only issue or question that shall be tried upon
exception shall be the amount of compensation to be paid for the prop erty or prop erty rights taken.” T.C.A.
§ 29-17-808 (1980). We do not construe this statutory provision so as to preclude Norfolk Southern from
litigating the Town’s right to take. Rather, section 29-17-808 app lies to the situation described in section
29-17-805, which entitles the property owner to a jury trial if the owner is not satisfied with the amount
deposited by the condemner with the clerk of the court. T.C.A. § 29-17-805 (1980). We note that the
language of section 29-17-8 03 imp licitly, if not explicitly, entitles Norf olk Sou thern to question the Town’s right
to take. See T.C.A. § 29-17-803(c) (1980) (providing that condemner shall be entitled to writ of possession
“if the right to take is not questioned”).
9
their very nature, at-grade railroad crossings create safety risks for the public and for the
railroad companies which use them. See Florida E. Coast Ry. Co. v. Martin County, 171
So. 2d 873, 881-82 (Fla.), cert. denied, 382 U.S. 834 (1965); Department of Transp. v.
Overton, 433 S.E.2d 471, 474 (N.C. Ct. App. 1993), review dismissed, 444 S.E.2d 448(N.C. 1994). Rather, in order to successfully defend against the Town’s condemnation
actions, Norfolk Southern must prove that the proposed grade crossings will result in
conditions which are so hazardous that they materially impair or interfere with Norfolk
Southern’s prior use of the right-of-way.
The judgments of the trial court are hereby reversed, and this cause is remanded
for further proceedings consistent with this opinion. Costs of this appeal are taxed to
Appellees, for which execution may issue if necessary.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
10