                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                       June 2000 Session

                         DAVID MILLS v. LINDA SOLOMON

                     Appeal from the Chancery Court for Cannon County
                       No. 95-54    Robert E. Corlew, III, Chancellor



                    No. M1998-00393-COA-R3-CV - Filed August 16, 2000


These proceedings began when David Mills filed a complaint seeking to condemn an easement
across Linda Solomon’s property. In bifurcated proceedings, the jury first determined the location
of Mills’ easement across Solomon’s property and, later, found that Solomon was entitled to an
award of damages totaling $11,908 for the easement, including $9900 in incidental damages. On
appeal from the trial court’s judgment entered on the jury’s verdict, Mills challenges only the award
of $9900 in incidental damages. We agree with Mills’ contention that the record fails to contain
material evidence to support the award of incidental damages, and we reverse that portion of the trial
court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part;
                            Reversed in Part; and Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD, J., joined.

Frank M. Fly, Murfreesboro, Tennessee, for the appellant, David Mills.

John B. Melton, Jr., Woodbury, Tennessee, and Frank Buck and Lena Ann Buck, Smithville,
Tennessee, for the appellee, Linda Solomon.

                                             OPINION

        Mills initiated these proceedings in June 1995 when he filed a complaint to condemn an
easement or right-of-way over Solomon’s property pursuant to Tennessee Code Annotated section
54-14-102 (1993). Tracking the language of the foregoing statute, Mills’ complaint alleged that he
owned a twenty-acre tract of land adjacent to a 118-acre tract owned by Solomon in Cannon County,
that Mills’ property was cut off or obstructed entirely from a public road or highway by the
intervening lands of Solomon and others, and that Mills had no adequate and convenient outlet from
his land to a public road. According to Mills’ complaint, the parties were friends when they moved
to Cannon County in the early 1970’s. In 1980, Mills bought a twenty-acre tract adjacent to
Solomon’s land. With Solomon’s permission, Mills constructed a dirt road over Solomon’s
property, and he used the road to access his property until the early 1990’s, when Solomon withdrew
her permission for Mills to use the road and threatened to have Mills arrested for trespassing.

        The first phase of the trial proceedings was conducted in June 1997. At the conclusion of
this phase, the jury returned a verdict establishing the location of Mills’ easement on Solomon’s
property. At the second hearing, held in September 1997, the jury decided the issue of damages.
The jury found that Solomon was entitled to damages in the total sum of $11,908. This amount
included $1908 for the easement itself and $100 for the rental value of the easement pending the trial
proceedings. The remainder of the award, $9900, consisted of the “incidental damages to the
balance of the land owned by Ms. Solomon.”

       After the trial court entered a final judgment in accordance with the jury’s verdict, Mills filed
a motion for remittitur and/or new trial. The trial court denied Mills’ post-trial motion, and this
appeal followed.

        Pending this appeal, the trial court ruled that Mills was not entitled to possession of the
easement until he had paid the award of damages to Solomon. Nevertheless, the trial court granted
Mills the temporary use of the easement conditioned upon his posting a bond in the sum of $1000.
Solomon objected to the amount of the bond, contending that, pursuant to this state’s eminent
domain statutes, Mills was required to post a bond for double the amount of damages awarded. See
Tenn. Code Ann. § 29-16-120 (1980).

        On appeal, Mills challenges only the award of incidental damages, contending that the
evidence presented at trial failed to support the award of $9900 for incidental damages to Solomon’s
land.1 In response, Solomon contends that the award of incidental damages should be upheld
because it is within the range of evidence presented at trial. As a preliminary matter, however,
Solomon again challenges the adequacy of Mills’ bond, insisting that Mills’ appeal should be
dismissed due to his failure to post a bond for double the amount of damages as required by this
state’s eminent domain statutes.

        We first address Solomon’s contention that Mills’ appeal should be dismissed due to his
failure to post a sufficient bond. In support of this argument, Solomon relies upon the following
statutory provision:

                 The taking of an appeal does not suspend the operations of the petitioner on
         the land, provided such petitioner will give bond with good security, to be approved
         by the clerk, in double the amount of the assessment of the jury of inquest, payable
         to the defendants, and conditioned to abide by and perform the final judgment in the
         premises.


         1
          Mills filed a bankruptcy petition pending these proceedings, but the bankruptcy court granted relief from the
automatic sta y provisions o f the bankrup tcy code to allow Mills to pursue this ap peal.

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Tenn. Code Ann. § 29-16-120 (1980). Solomon contends that this statutory bond requirement
applies to all condemnation proceedings, including condemnations of private easements pursuant
to title 54, chapter 14.

       We disagree. The statutory bond provision cited by Solomon is found in this state’s eminent
domain statutes codified at title 29, chapter 16. Title 29, chapter 16 grants certain entities the power
to condemn another’s real property for the purpose of constructing internal improvements.
Specifically, chapter 16 provides that

               [a]ny person or corporation authorized by law to construct any railroad,
        turnpike, canal, toll bridge, road, causeway, or other work of internal improvement
        to which the like privilege is conceded, may take the real estate of individuals, not
        exceeding the amount prescribed by law, or by the charter under which the person or
        corporation acts, in the manner and upon the terms herein provided.

Tenn. Code Ann. § 29-16-101 (1980). Moreover, chapter 16 states that its provisions

        shall be deemed, unless expressly stated to the contrary, and without incorporation
        or reference, to be a part of every section, or legislative act, present or future, which
        grants the power of such condemnation.

Tenn. Code Ann. § 29-16-102 (1980). Thus, chapter 16’s provisions apply to every legislative
enactment granting such condemnation powers, whether the enactment consists of a public statute
or a private act. See Ragland v. Davidson County Bd. of Educ., 312 S.W.2d 855, 859 (Tenn. 1958);
Tennessee Mining & Mfg. Co. v. Anderson County, 121 S.W.2d 543, 546 (Tenn. 1938).

        Contrary to Solomon’s argument, we conclude that the cited statutory bond provision does
not apply to the present proceeding. The present proceeding was brought pursuant to title 54,
chapter 14, which permits a landlocked property owner to condemn an easement or right-of-way
across the property of an adjacent landowner. Specifically, title 54, chapter 14 provides that

                [a]ny person owning any lands, ingress or egress to and from which is cut off
        or obstructed entirely from a public road or highway by the intervening lands of
        another, or who has no adequate and convenient outlet from such lands to a public
        road in the state, by reason of the intervening lands of another, is given the right to
        have an easement or right-of-way condemned and set aside for the benefit of such
        lands over and across such intervening lands or property.

Tenn. Code Ann. § 54-14-102 (1993).

         This court has recognized that a proceeding brought pursuant to section 54-14-102 is, in
effect, a condemnation action because the statute “confers the power of eminent domain upon one
private person to take another’s property,” provided the petitioner meets the statutory requirement


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of necessity and provided he uses the easement or right-of-way only for the purpose of ingress and
egress. Vinson v. Nashville, Chattanooga & St. Louis Ry., 321 S.W.2d 841, 843 (Tenn. Ct. App.
1958). We also have recognized, however, that an action to condemn a private easement or right-of-
way under this statute differs significantly from an action to condemn an easement or right-of-way
for a public road under this state’s other condemnation statutes. The easement or right-of-way
condemned under section 54-14-102 “is a private and not a public way.” Id. It belongs to the owner
of the land benefitted thereby, and it continues as long as it is used and maintained by the owner for
the limited purpose of ingress and egress. In contrast, a public road is held in trust for the public and
is maintained for use by the public at large. See id. at 843-44.

        Although the present proceeding may be characterized as a condemnation action, we do not
believe that it is the type of condemnation action to which the provisions of title 29, chapter 16
apply. Title 29, chapter 16 applies to condemnation actions brought by persons or corporations for
the purpose of constructing internal improvements, such as railroads, turnpikes, canals, toll bridges,
roads, causeways, or other improvements. See Tenn. Code Ann. § 29-16-101 (1980). By its
provisions, this chapter also applies to any legislative act “which grants the power of such
condemnation.” Tenn. Code Ann. § 29-16-102 (1980). By referring to “the power of such
condemnation,” rather than simply “the power of condemnation,” the statute limits its application
to the type of condemnation action set forth in the preceding section 29-16-101, i.e. the
condemnation of land for the purpose of constructing internal improvements.

        The present proceeding does not involve the condemnation of land for the construction of
an internal improvement. Rather, as we previously explained, this action involves the condemnation
of land for the limited purpose of ingress from or egress to a public road. Accordingly, the
remaining provisions of title 29, chapter 16, including the cited statutory bond provision, do not
apply to the present proceeding.

        Our conclusion that Mills was not required to comply with the foregoing statutory bond
provision is strengthened by the legislature’s recent amendment of title 54, chapter 14, to include a
similar bond requirement. Rather than requiring a petitioner taking an appeal to post a bond for
double the amount of damages, the amendment requires the petitioner to post a bond for double the
appraised value of the parcel of land or property rights sought to be taken:

                Upon the filing of a petition by the person desiring to secure such easement
        or right-of-way, the court shall appoint an appraiser to conduct an appraisal of the
        parcel of land or rights therein or incident thereto a portion of which is wanted. The
        cost of the appraisal shall be borne by the person seeking to appropriate such land.
        Upon completion, the appraisal shall be filed with the court and within thirty (30)
        days of the filing, the person seeking to appropriate such land shall post a bond for
        two (2) times the amount of the appraisal. The appraisal shall be conducted for the
        sole purpose of determining the amount of the bond and shall not be admissible as
        evidence.



                                                  -4-
Tenn. Code Ann. § 54-14-103(b) (Supp. 1999). This provision, which went into effect June 14,
1999, see 1999 Tenn. Pub. Acts 362, provides some of the same protection as the appeal bond
required by section 29-16-120, but it provides this protection earlier in the proceeding by requiring
the petitioner to post a bond shortly after the filing of the petition rather than upon taking an appeal.
Although not conclusive of the legislature’s intent, we think that this recent amendment supports the
notion that, prior to June 14, 1999, the statutes authorizing the condemnation of private easements
did not include such a statutory bond requirement.

         As for the damages issue raised by Mills, we agree that the jury’s award of incidental
damages in this case is not supported by material evidence. Our review of the judgment entered on
the jury’s verdict is governed by rule 13(d) of the Tennessee Rules of Appellate Procedure, which
provides that “[f]indings of fact by a jury in civil actions shall be set aside only if there is no material
evidence to support the verdict.” Tenn. R. App. P. 13(d). Under this standard of review, we “are
not at liberty to weigh the evidence or to decide where the preponderance lies, but are limited to
determining whether there is material evidence to support the verdict.” Crabtree Masonry Co. v.
C&R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978). In making this determination, we are “required
to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth
of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard
all to the contrary.” Id. If the record contains any material evidence to support the verdict, we must
affirm the trial court’s judgment. See id.; accord Forrester v. Stockstill, 869 S.W.2d 328, 329
(Tenn. 1994).

         As located by the jury, Mills’ easement traversed Solomon’s property in such a way that
eleven acres of Solomon’s property lay on one side of the easement and the remainder of her
property lay on the other side. At the damages phase of the proceedings, Solomon’s proof of
damages focused on the eleven acres of land that lay on the left side of Mills’ easement. Solomon
testified that the fair market value of her property was $1000 per acre. In Solomon’s opinion, the
fair market value of her property had declined by $10,000 or $11,000, the fair market value of the
eleven acres to the left of Mills’ easement. Solomon defended her opinion by explaining that the
easement “cut up” her property, that “it [was] like losing that much of [her] property,” and that, if
her children inherited the land, they would be “getting less property.” Thus, in estimating her
damages, Solomon discounted the value of her property by the entire fair market value of the eleven
acres.

        Solomon’s expert similarly estimated the damages to Solomon’s property by deducting the
entire value of the eleven acres. Gary Nichols, a licensed real estate broker, testified that Solomon’s
property was worth $833 per acre. In Nichols’ opinion, the value of Solomon’s property was
reduced by $9163, the full value of the eleven acres on one side of the easement. Nichols
acknowledged that his damages estimate “was the same as if Mrs. Solomon were deeding [the eleven
acres] over to Mr. Mills.” Nichols defended his estimate by explaining that Solomon would be
unable to sell the eleven acres as a separate tract because of its severe topography and insufficient
frontage on a public road. Nichols believed that Mills’ condemnation of the easement was
comparable to “cutting a portion of [the] land off and cutting it away.” At another point in his


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testimony, however, Nichols contradicted his statement that the eleven acres had no value when he
testified that “[y]ou could sell it [the eleven acres], it would just be at a lessor [sic] value than what
it, you know, would be otherwise.”

        In our view, this testimony misapprehends both the legal effect of Mills’ easement across
Solomon’s property and the law of damages in cases involving the condemnation of such easements.
Contrary to Solomon’s and Nichol’s suggestions, Mills’ easement did not have the effect of severing
Solomon’s property into two tracts of land. By condemning an easement pursuant to section
54-14-102, Mills did not acquire title to the strip of property over which the easement lay. That
property is still owned by Solomon. See Lillard v. Southern Ry. Co., 330 S.W.2d 335, 337 (Tenn.
1959); Colonial Pipeline Co. v. Eatherly, 621 S.W.2d 770, 773 (Tenn. Ct. App. 1981). All that
Mills acquired was the right to use the property for the limited purpose of ingress to and egress from
his landlocked property. See Vinson v. Nashville, Chattanooga & St. Louis Ry., 321 S.W.2d 841,
843 (Tenn. Ct. App. 1958). While Mills’ condemnation of the easement might have diminished the
value of Solomon’s 118-acre tract of land, it did not result in the creation of two separate tracts of
property.

         As a general rule, when an easement is condemned across a defendant’s property, the
measure of damages is the difference in the fair market value of the defendant’s property prior to the
taking and its value after the taking. See State ex rel. Shaw v. Gorman, 596 S.W.2d 796, 797 (Tenn.
1980); Betty v. Metropolitan Gov’t, 835 S.W.2d 1, 7 (Tenn. Ct. App. 1992). This is consistent with
the rule that the “proper measure of damages to land remaining after a partial taking is the decline
in the fair market value of the property by virtue of the taking.” Shelby County v. Kingsway Greens
of Am., Inc., 706 S.W.2d 634, 638 (Tenn. Ct. App. 1985); accord City of Rogersville v. Nelms,
1985 WL 4126, at *2 (Tenn. Ct. App. Dec. 6, 1985) (no perm. app. filed). It is also consistent with
the rule that, in an action for breach of covenant against encumbrances, where the encumbrance is
an easement, the proper measure of damages is the property’s diminution in value as a result of the
easement’s existence, i.e. the difference between the land’s value without the easement and its value
with the easement. Ellison v. F. Murray Parker Builders, Inc., 573 S.W.2d 161, 162-63 (Tenn. Ct.
App. 1978).

        In cases involving the condemnation of an easement or any other partial taking, the
defendant’s damages should be measured in relation to the defendant’s entire tract of property. See
Blevins v. Johnson County, 746 S.W.2d 678, 685 (Tenn. 1988); State ex rel. Pack v. Walker, 423
S.W.2d 473, 473 (Tenn. 1968). That is, the measure of damages should be the difference in value
of the entire property or tract before the creation of the easement and its value after the easement’s
creation. See Faulkner v. City of Nashville, 285 S.W. 39, 43 (Tenn. 1926); see also 29A C.J.S.
Eminent Domain §§ 126, 131, at 325, 340 (1992).

        In the present case, Solomon’s proof of damages improperly focused on the value of the
eleven acres of land on the left side of Mills’ easement as if the eleven acres were severable from
the entire tract of Solomon’s property. Solomon’s testimony that the eleven acres had no value was
based upon her feeling that this portion of the property was “cut off” from the remainder of the tract.


                                                   -6-
Nichols’ testimony that the eleven acres had no value was based on his opinion that, if offered for
sale as a separate tract, the eleven-acre tract would not be marketable, but he later acknowledged that
the eleven acres had some value. None of this testimony addressed the determinative issue of the
easement’s effect on the value of the entire 118-acre tract of property owned by Solomon. Instead,
the testimony focused only on the easement’s effect on the eleven acres to the left of the easement.

        We recognize that Mills’ easement may have affected the value of Solomon’s property and,
particularly, the value of the property in the immediate vicinity of the easement. The only proof of
diminished value, however, was based, not upon the value of the entire tract, but upon the value of
eleven acres of the tract. Moreover, this proof was based entirely upon the hypothetical sale of the
eleven acres as if it constituted a separate tract of property. See State v. Chumbley, 181 S.W.2d 382,
383 (Tenn. Ct. App. 1944) (holding that value of land condemned must be fixed as of time of taking
and may not be based upon speculative future developments); accord State ex rel. Comm’r v. Cox,
1987 WL 17021, at *2 (Tenn. Ct. App. Sept. 15, 1987) (no perm. app. filed). Under these
circumstances, we conclude that the record fails to contain material proof to support the jury’s award
of $9900 in incidental damages.

        Inasmuch as the record contains no material evidence as to the easement’s effect on the value
of Solomon’s entire tract of property, we reverse the award of $9900 in incidental damages, and we
remand this cause for further proceedings consistent with this opinion. In all other respects, the trial
court’s judgment is affirmed. Costs of this appeal are taxed to the appellee, Linda Solomon, and her
surety, for which execution may issue if necessary.



                                                        ___________________________________
                                                        DAVID R. FARMER, JUDGE




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