                    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
