                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                            December 5, 2001 Session

 MALLORY VALLEY UTILITY DISTRICT OF WILLIAMSON COUNTY,
 TENNESSEE, v. JEFFREY R. CANTWELL, CAROLYN W. CANTWELL,
             and SUNTRUST BANK, NASHVILLE, N.A.

                Direct Appeal from the Circuit Court for Williamson County
                    No. 11-2K396     Hon. Russ Heldman, Circuit Judge



                   No. M2001-00627-COA-R3-CV - Filed January 15, 2002



The Trial Court dismissed plaintiff’s condemnation action on grounds that the taking was arbitrary
and capricious. On appeal, we vacate and remand for an evidentiary hearing.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Vacated.

HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY , J., joined.

Donald L. Scholes, Nashville, Tennessee, for Appellant, Mallory Valley Utility District of
Williamson County, Tennessee.

Ralph W. Mello, Brentwood, Tennessee, for Appellees, Jeffrey R. Cantwell and Carolyn W.
Cantwell.

Mike Powell, Knoxville, Tennessee, for Appellee, Suntrust Bank, Nashville, N.A.



                                             OPINION


               Plaintiff’s action to condemn an easement over defendants’ property was dismissed
by the Trial Judge, following a hearing. The Petition for Condemnation was denied by the Trial
Judge who stated in the Judgment “plaintiff’s action in seeking the easement at issue is arbitrary and
capricious and an abuse of discretion, there being no ‘necessity’ as is required by and defined in
law.”

               The Trial Court in its Judgment recites:
                       This case came on to be heard on September 18, 2000, on Plaintiff’s petition
                for condemnation, at which time the evidence, as presented through statements of
                counsel, showed that Plaintiff seeks a judgment granting it a permanent easement by
                condemnation of certain real property owned by Defendants, . . .

Plaintiff in its brief flatly asserts that no evidence was heard by the Trial Judge and defendants, while
arguing that it was the responsibility of plaintiff to file a transcript of evidence, do not assert that
either party offered evidence at the hearing. Indeed, the Trial Court’s Judgment demonstrates that
no testimony was heard. With due deference to the Trial Court, statements of counsel may not be
treated as evidence unless the parties mutually agree to a stipulation of facts. See 73 Am.Jur.2d
Stipulations, §17, 2001. It is apparent from the Trial Court’s Judgment that its decision was neither
based upon evidence, nor stipulation of facts, and must be vacated.

                 On appeal, the parties argue over who has had the burden of proof. That burden is
first on the petitioner who instigated the action.

                Not only is the corporation seeking the condemnation required to take the first steps,
                and bring the land-owner before the court, in the prescribed order, but it must, of
                necessity, show that it is entitled to exercise the right of eminent domain, and that the
                particular land is necessary for its corporate use. In all of this the petitioner is
                plaintiff, with the affirmative of its claim and the burden of proof upon it . . .
                Concession by the owner of petitioner’s right to condemn, and to take the particular
                land, and contesting the question of damages only, cannot change the rule; . . .

Alloway v. City of Nashville, 13 S.W. 123, 126 (Tenn. 1890). Upon the petitioner making out a
prima facie case, the burden shifts to defendant to show the petitioner has no right to take. Upon
remand, the Trial Court is directed to conduct a hearing along the lines set forth herein, and then
determine the merits of the case upon the evidence and/or stipulations presented.

                The Judgment is vacated, and the cause is remanded, with the cost of the appeal
assessed one-half to Mallory Valley Utility District of Williamson County, Tennessee, and the other
one-half to Jeffrey R. Cantwell and Carolyn W. Cantwell and Suntrust Bank, Nashville, N.A.



                                                        _________________________
                                                        HERSCHEL PICKENS FRANKS, J.




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