August 16, 2007
Dear City Attorney,
You have asked me to research the issues raised by language inserted into our eminent
domain law in 2006, as it appears such issues have been raised by respondents in the abovereferenced litigation concerning a condemnation by your City. The purpose of the condemnation
is to obtain an easement for electric lines. The Respondents’ Answer to Petition for
Condemnation indicates that they will challenge the necessity of the taking, relying on language
contained in the 2006 amendment of the eminent domain statute.
The specific statutory language at issue follows:
(2) “Public use” shall not include either private use or benefit, or the indirect public
benefits resulting from private economic development and private commercial enterprise,
including increased tax revenue and increased employment opportunity, except as
follows:
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(B) The acquisition of any interest in land necessary to the function of a public or private
utility, a governmental or quasi-governmental utility, a common carrier, or any entity
authorized to exercise the power of eminent domain under title 65;
T.C.A. ' 29-17-102 (emphasis added). It is the clause “necessary to the function of” a public
utility which is the focus of my research.
Well before this language was added to the Tennessee eminent domain law, our state
courts determined that the necessity of a taking is a legislative decision:
The determination by a condemning authority of the necessity for the taking is not a
question for resolution by the judiciary and, absent a clear and palpable abuse of power,
or fraudulent, arbitrary or capricious action, it is conclusive upon the courts. Duck River
Elec. Membership Corp. V. City of Manchester, 529 S.W.2d 202, 204 (Tenn. 1975).
[W]here...a taking is for a public use, the only remaining restriction on the sovereign
power is to pay the fair and reasonable value of the property taken, generally denominated
“just compensation.... “But all other incidents of the taking are political questions, for the
determination of the sovereign, and not judicial questions, for the determination of the
courts. Selecting the property to be taken, as contradistinguished from similar property in
the same locality, determining its suitableness for the use to which it is proposed to put it
[sic], as well as deciding the quantity required, are all political questions, which inhere in
and constitute the chief value of the power to take. This power would be a vain and
empty thing, if the owner could contest the advisability of taking his property rather than
his neighbor’s, or if he could interpose as a defense to the taking that other property could
be found which suit the purposes better, or that he, the owner, was of the opinion and
could prove that the public needed more or less than the quantity proposed to be taken.
The power to take would be of small value, if the thing to be taken, in its quantity,
quality, and locality, could be determined by another and adverse interest. Southern Ry.
Co. V. City of Memphis, 148 S.W. 662 (Tenn. 1912); cited in City of Maryville v.
Edmondson, 931 S.W.2d 932, 934 (Tenn. App. 1996)(emphasis added).
It does not appear that adding the language “necessary to the function of a public utility”
to the statute as a definition of “public use” will now change the nature of eminent domain
proceedings. Tennessee courts have consistently held that the question of the necessity of a
taking is not a judicial question, and further should not be submitted to a jury. First Utility
District of Knox County v. Jarnigan-Bodden, 40 S.W.3d 60 (Tenn. App. 2000), perm. app.
denied (March 5, 2001). Although this aspect of eminent domain law is well-settled and was
understood at the time the statute was amended, the 2006 amendment did not attempt to alter the
nature of the proceedings or to change the way condemnation cases are heard. There was no
amendment of the law providing that jury hearings would be afforded on the public use issue,
and no qualification of the “necessary” clause to indicate that a court finding of such is required
in order to proceed in a condemnation action. Rather, the law requires that takings be for “a
legitimate public use in accordance with the fifth and fourteenth amendments to the United States
Constitution, the Constitution of Tennessee, Art. I, ' 21,” and all the prior court opinions on the
issue of necessity in this state were made under those constitutional provisions. It is therefore
very likely that the amendment in 2006 has no impact on the determination of necessity.
The United States Supreme Court first observed that when a power is expressly given to
the government by the Constitution, “the degree of its necessity is a question of legislative
discretion, not of judicial cognisance.” McCulloch v. Maryland, 17 U.S. 316, 4 L.Ed. 579
(1819). The McCulloch case concerned the power of Congress to incorporate a bank, but the
reasoning is applicable to all government functions of constitutional powers:
Congress is authorized to pass all laws ‘necessary and proper’ to carry into execution the
powers conferred on it. These words, ‘necessary and proper,’ in such an instrument, are
probably to be considered as synonymous. Necessarily, powers must here intend such
powers as are suitable and fitted to the object; such as are best and most useful in relation
to the end proposed. If this be not so, and if congress could use no means but such as
were absolutely indispensable to the existence of granted power, the government would
hardly exist; at least, it would be wholly inadequate to the purposes of its formation. 17
U.S. at 324-5.
Since the amendment of the eminent domain law in 2006, there have been no cases in
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Tennessee examining the “necessity,” or even the “public use” language. There has been no
indication that the courts will now handle such cases differently, by applying a different or higher
burden of proof from the condemning authority. There is no reason to conclude that the issue of
“necessity” has now become one for judicial determination.
In the absence of a recent Tennessee case, post dating the amendment of the statute, there
are numerous cases from other states considering the issue which are helpful.
The Washington state eminent domain statute in 1968 contained the following language:
“Whenever it shall become necessary for the city to take or damage private property
for....any..public purpose...” RCW 35.24.310 (1968). The Washington Supreme Court
interpreted this language as leaving the decision concerning “necessity” to the legislative body:
[Q]uestions concerning whether a particular acquisition is necessary to carry out a
proposed public use are legislative. A declaration of necessity by the proper municipal
authority, such as petitioner in the instant case, in conclusive in the absence of proof of
actual fraud or such arbitrary and capricious conduct as would constitute constructive
fraud. City of Des Moines v. Hemenway, 437 P.2d 171, 176-177 (Wash. 1968) (citations
omitted).
The Michigan Constitution actually requires a determination of “necessity” for a taking:
“Private property shall not be taken by the public nor by any corporation for public use, without
the necessity therefor being first determined and just compensation therefor being first made...”
Michigan Constitution, Art. 13, Section 1. State statutes in 1930 provided that the question of
necessity be submitted to a jury. In the case City of Kalamazoo v. Balkema, 233 N.W. 325
(Mich. 1930), the state Supreme Court declined to overturn a jury verdict that the taking of
property to expand a city park near the business district was necessary. The landowner
challenged the definition of “necessity” used by the trail court judge. The Michigan Supreme
Court relied upon Chief Justice Marshall’s words in the McCulloch v. Maryland case, supra:
Is it true that this is the sense in which the word ‘necessary’ is always used? Does it
always import an absolute physical necessity, so strong, that one thing, to which
another may be termed necessary, cannot exist without that other? We think it
does not. If reference be had to its use, in the common affairs of the world, or in
approved authors, we find that it frequently imports no more than that one thing is
convenient, or useful, or essential to another.
Thus the definition of “necessary” applied in Michigan became those words written by Chief
Justice Marshall.
The Virginia Constitution contains no right to a hearing on the issue of necessity of a
taking, and follows most state constitutions in granting review on the issue of compensation only.
State legislation imposes limitations on condemnations for certain enumerated public purposes,
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and provides that necessity is established where it is “declared by resolution of the governing
body following a public hearing.” Va. Code ' 15.1-237. It was under this law that the question
of “necessity” was raised in the case Hamer v. School Bd. of City of Chesapeake, 393 S.E.2d 623
(Va.1990). The Court rejected the plaintiff’s argument that the taking was not necessary:
We, as well as the trail court, should have been spared this needless exercise. The
question whether a taking is for a public purpose is a judicial question, reviewable by the
courts, but the necessity or expediency of the condemnor’s project, when its public
purpose has been established, is a legislative question....The power of eminent domain is
an essential attribute of sovereignty which, in our system, inheres in the General
Assembly. The only constitutional limitations imposed upon the power of eminent
domain are contained in the just compensation clause, Va. Cont. Art.I, 'II. Thus, there is
no constitutional right to a hearing on the issue of necessity. Hamer, at 625-626
(emphasis added).
New York has similar constitutional provisions, limiting eminent domain only with the
requirements that just compensation be paid, due process followed, and that the taking be for a
public use. In Bronx Chamber of Commerce v. Fullen, 21 N.Y.S.2d 474 (1940), the New York
Supreme Court states:
Eminent domain is one of the sovereign powers inherent in the state as the sovereign to
take private property for public use....The State constitution does not create the power but
recognizes its existence and merely regulates its use by designating limitations within
which it may and beyond which it cannot be used. The power is exerted through the
legislative branch alone, within those constitutional limitations and completely
independent of the other branches, may proceed to determine the necessity and prescribe
the method and extent of the taking...As the legislative branch alone may determine the
necessity and prescribe the method and extent of the taking, it may also delegate the duty
of determining necessity or expediency in the acquisition of private property to a tribunal
of its creation or choice and the opinion arrived at and decision made are political and
judicial. Whether the use for which the property is authorized to be taken is a public use
is a judicial question, but the question of the necessity of the taking for public use is
exclusively a legislative one and the legislature has the right to designate officers, bodies
or tribunals to determine exigency or necessity. The decision of the legislature or of its
instrumentality is conclusive. Bronx Chamber at 480 (emphasis added).
In the case at hand, I note that the Answer to Petition filed by the Respondents claims that
the taking is not “necessary to the function” of the City’s utility, without providing any averments
of fact or grounds for such allegation. A similar answer in an Indiana case was struck as being an
invalid objection, and not a permitted pleading. In the Indiana Court of Appeals case State v.
Collom, 720 N.E.2d 737 (Ind.App. 1999), the respondent filed an answer generally denying the
State’s averments of necessity. The State moved to overrule, or strike the answer and the trial
court refused, and went forward with evidentiary hearings. The Court of Appeals overturned the
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lower court, ruling that the general denial is not permitted under the eminent domain statute, and
that the trail court’s examination of the issue was improper:
It has long been established that the necessity of taking property for public use is purely a
legislative question and not a proper subject for judicial review; where the intended use is
public, this question may be determined by such agency and in such manner as the
legislature may designate. Thus, a court may not inquire into the administrative
determination of the propriety, reasonableness, or necessity for the taking of property by
eminent domain by a proper authority, except for fraud, or where the proceeding is a
subterfuge for taking property for private use. As our supreme court has explained:
The courts have the right to determine the legal authority and right under which the
power of eminent domain is exercised. This does not mean, however, that the courts may
assume the administrative act of determining the necessity or reasonableness of the
decision to appropriate and take the land. To us, this appears to be a matter for
determination of the legislature or the corporate body to whom the legislature has
delegated such a decision. Collom at 740, citing Cemetery Co. v. Warren School Twp.
of Marion County, 139 N.E.2d 538, 545 (Ind. 1957)(emphasis in original).
The reasoning in the Indiana case leads me to wonder if a motion to strike the
Respondents’ Answer to Petition may be warranted. Simple denials are permitted in pleadings in
Tennessee, but not when those denials are also asserted as “affirmative defenses.” Rule 8.03 of
the Tennessee Rules of Civil Procedure requires that affirmative defenses contain facts, and the
Respondents’ Answer contains no facts in support of their position that the taking is not
necessary.
There are numerous other cases from numerous jurisdictions examining the operation of
the term “necessity” as it relates to eminent domain proceedings. In all that I have reviewed, the
courts held that the determination of the necessity of a taking is a legislative matter, which will
not be disturbed absent a finding of fraud or abuse of power.
You have also forwarded the City’s resolution passed in 2003 concerning the first
easement obtained from the Respondents for the installation of sewer, water and gas lines to
serve the industrial park. The resolution contains the statement “the acquisition of utility
easements across the properties of Mr. And Mrs. X ...are necessary for the providing of said
utility services to the Industrial Park.” This follows the statement that the industrial park is
“essential to the further economic development of the City...” It is clear that the City’s
governing body has made the determination that this taking is necessary, for both the industrial
park, and the provision of utility service to the park. Interestingly, the amendment to the eminent
domain statute in 2006 specifically provides that “public use” includes “the acquisition of
property by a county, city, or town for an industrial park...” T.C.A. ' 29-17-102. As the
easement sought in the immediate case is for the purpose of providing utility service to the
industrial park, it is unfathomable that the taking is not necessary. One cannot have industry
without utilities.
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I hope this information is helpful as you move forward in the condemnation case. Please
let me know if you need any further assistance in this matter.
Sincerely,
Melissa A. Ashburn
Legal Consultant
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