                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     May 15, 2002 Session

                 CITY OF SEVIERVILLE v. BILL GREEN, ET AL.

                      Appeal from the Circuit Court for Sevier County
                 No. 97-194-II and No. 97-195-II Richard R. Vance, Judge

                                      FILED JULY 30, 2002

                                 No. E2001-02467-COA-R3-CV


This appeal from the Sevier County Circuit Court questions whether the Trial Court erred in
awarding landowners compensation for incidental damages to their property because the City of
Sevierville changed the frontage access to their property from unlimited access to restricted access.
We affirm the judgment of the Trial Court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Cause
                                       Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR.,
and D. MICHAEL SWINEY , JJ., joined.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellant, City of Sevierville

Robert L. Ogle, Jr., Sevierville, Tennessee, for the Appellees, Bill Green, Claudine Green, Dallas
Coffman, and Jean Coffman

                                             OPINION

       In this appeal from the Circuit Court for Sevier County the Appellant, the City of Sevierville
(hereinafter 'the City') contends that the Trial Court erred in its award of incidental damages to the
Appellees, Bill Green, Claudine Green, Dallas Coffman and Jean Coffman (hereinafter 'the
Landowners') for the restriction of access to their property.

       The subject property in this matter is located on U.S. Highway 441 in the City of Sevierville
and consists of two adjoining tracts designated in the record as Tract 5, owned by the Appellees, Bill
Green, Claudine Green, Dallas Coffman and Jean Coffman, and Tract 7, owned by Mr. Green and
Mr. Coffman. In March of 1997 a portion of each of the tracts was condemned upon petitions1 of
the City so that the City could implement a road construction project to widen U.S. Highway 441
from four lanes to six lanes. At the time of condemnation lessees of the Landowners were operating
a fruit stand and country market on Tract 5 and a convenience store and gasoline outlet on Tract 7.
It is undisputed that there was unrestricted access to the front of each tract from Highway 441 at the
time of condemnation.

        In granting the City's petition for condemnation the Trial Court allowed the City to take a
portion of the frontage of Tract 5, a slope easement as to Tract 7 and temporary construction
easements as to both tracts. Additionally, in accordance with the construction plan, sidewalks,
curbing and guttering were installed between Highway 441 and Tracts 5 and 7 with the result that
there was no longer unlimited access to the Landowners' property from Highway 441. Instead,
access to the property from Highway 441 was restricted to two driveways constructed by the City -
one to serve Tract 5 and one to serve Tract 7.

         In July of 2001 a hearing was conducted to determine the amount of compensation which
should be allowed the Landowners in consequence of the road construction project. As stated by the
Trial Court in its judgment of September 7, 2001, the principal issues at this hearing were "the value
of the land taken and incidental damage to the property as a result of highway widening, diminution
of the value of the remaining property and changing the access to the property from being unlimited
along the highway frontage to being restricted by curbing with two limited access openings." Based
upon the evidence presented and the arguments of counsel the Trial Court found "that Tract 5
suffered incidental damages for restricted access in the amount of $40,000.00 and that Tract 7
suffered incidental damage for restricted access in the amount of $30,000.00."

        The City’s sole issue raised in this appeal, which we restate, is whether the Trial Court erred
in granting the Landowners incidental damages by reason of the fact that access to the Landowners'
property was restricted as a result of the City's road construction project.

        Pursuant to T.R.A.P. 13(d), we review a non-jury case such as this one de novo upon the
record of the trial court. We presume that a trial court's findings of fact are correct and, unless
evidence on the record preponderates to the contrary, we must affirm those findings. Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993). There is no presumption of correctness with
respect to a trial court's conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn.
1996).

        Before we address the issue stated above we note the City's assertion that the Trial Court
erred in awarding incidental damages based on the discrepancy in elevation between the Landowners'
property and Highway 441 after completion of construction. Although the record shows that
evidence was presented at trial by both parties with respect to the change in elevation between the


         1
          Although this matter was initiated as two cases upon the filing of a separate petition as to each tract, these
cases were subsequently consolidated by agreement of the parties and are consolidated for purposes of this appeal.

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property and the highway and the causes and impact of that change, we do not find that the Trial
Court's award of incidental damages was based upon that factor. Nowhere in its judgment does the
Trial Court indicate that it considered change in elevation in awarding incidental damages in this
case. It is our determination that the Trial Court's award of incidental damages was based
exclusively upon its finding that, as a result of the City's actions, the Landowners' property was
deprived of unlimited access to Highway 441. Consistent with this determination we note the
specific language in the Court's judgment with reference to the change in access "to the property
from being unlimited along the highway frontage to being restricted by curbing with two limited
access openings". Accordingly, we decline to address the City's argument that the Trial Court erred
in granting damages based upon elevation change.

         We now address the City's assertion that incidental damages should not have been allowed
upon the finding that access to the Landowners' property was unlimited prior to construction and
restricted to two driveways thereafter. Various arguments are presented by the City in support of this
assertion.

        First, the City argues that the normal disturbances to business and traffic caused by a
construction project like the one in this case are not compensable. In support of its argument the
City cites the following language from State v. Cooper, an unreported opinion of this Court filed in
Nashville on November 3, 1989:

         Damages resulting from inconvenience during construction are not recoverable
         in a condemnation action. Cooper, ibid at page 3.

         In accordance with the prevailing rule, it has been held that mere inconvenience
         in carrying on the business by reason of a condemnation cannot be considered.
         Thus, in the absence of statutory authorization to the contrary, the temporary
         obstruction of a highway (or lands other than those upon which the business is
         conducted), resulting in the interruption of such business, does not give rise to a
         claim for compensation. Where, as the result of the improvement of a street, there
         is diversion of traffic causing a loss to a business fronting upon such street it has
         been held, generally, that such loss is not to be considered in fixing the damages
         of the owner of such business. Cooper, ibid at page 4.

        We do not agree that the rule stated in State v. Cooper, ibid. is relevant under the facts
presented in this case. In Cooper the issue before the Court, with respect to which the above cited
language pertains, was whether the trial court erred in failing to allow the landowner to testify as to
the effect of the use of a temporary construction easement upon accessibility to the landowner’s
service station during construction. The issue now before this Court involves permanent restriction
of access as a result of construction, not temporary loss of access during construction. We note that
the Trial Court specifically excludes compensation for losses incurred during construction in its
judgment of September 7, 2001:



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                 Testimony regarding loss of business suffered by the leasehold tenant of
         the property during construction was immaterial. It is settled law that a landowner
         cannot be compensated for inconvenience or loss of business occasioned by a
         highway construction project.

       The City also cites the case of Sadler d/b/a Xanadu Video v. State of Tennessee, an
unreported opinion of this Court filed in Nashville on March 13, 2001. The City argues that,
although the Sadler case involved a claim for temporary inconvenience resulting from road
construction, in denying the claim the Court referenced three cases in which complaining property
owners were denied compensation when access to their property was permanently impaired - City
of Memphis v. Hood, 345 S.W.2d 887 (Tenn.1961); Ambrose v. City of Knoxville, 728 S.W.2d 338
(Tenn. Ct. App. 1986) and Hayes v. City of Maryville, 747 S.W.2d 346 (Tenn. Ct. App. 1987).

         It is our determination that the instant case is significantly different from these three cases
each of which involved the redirection of traffic along the street adjacent to the landowner’s property
from two-way to one-way. In each of these cases the landowner’s complaint arose from the city’s
change of traffic flow along a public road. In the Hood case the Tennessee Supreme Court
recognized that the "change of the flow of traffic, making a street a four-lane highway or diverting
traffic one way or the other " comes from "the exercise of the police power of the governing parties"
and damages resulting therefrom are non-compensable. In the case before us the impairment of
access to the Landowners' property resulted solely from the construction of curbs, sidewalks and
guttering between such property and Highway 441 and we find nothing in the record that compels
us to the conclusion that the purpose or effect of this construction was to redirect the flow of traffic
along the Highway. The Court in Hood additionally recognized the right of access at page 889:

         Of course, the property owners fronting upon a public thoroughfare have a right
         to free and convenient access thereto. This right of ingress and egress attaches
         to the land. It is a property right, as complete as ownership of the land itself.

        We find nothing in the three cases cited by the Court in Sadler that compels us to find that
the City's restriction of access to the Landowners' property in this case is non-compensable.

        The City next argues that "full access" to the Landowners' property is still available as
evidenced by the fact that “conversion vans, large dump trucks, sports utility vehicles, vehicles
pulling trailers and campers, and cars" can still enter the property, use the parking lot, and purchase
gasoline. The City further argues that, in fact, there is now actually greater access to the property
because in the course of its construction project the City added a driveway connecting the property
to Carl Street, a side street from which the property had not previously been accessible. The City
asserts that the Landowners retain free and convenient access to the property, that the Landowners
have established no particular effect on their property as a result of the decrease in access and argues
that simply because some access has been limited, the Landowners should not automatically receive
damages.



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         Even accepting the City's argument that "full access" to the property remains available we
still find that access to the property has been impaired in the sense that frontage access that was
previously unlimited is now restricted to two driveways. The fact that the same type of vehicle can
still enter the property does not belie the fact that there has been a restriction of access with respect
to the size of the area by way of which the property can be entered. We believe that this restriction
would necessarily change the amount of traffic in and out of the property because it is easier for a
driver to enter property with unlimited access than it is to enter property where access is restricted.
We further disagree with the City's argument that the addition of the driveway allowing access to the
property from Carl Street suffices to compensate for the restriction of frontage access along Highway
441and we find no proof in the record that the addition of this driveway offsets the impairment of
access to Highway 441.

       Our review of the trial record reveals testimonial evidence of impairment to the property in
consequence of the limited access imposed by the City. In this regard we note the following
testimony of Betty Krachey, a lessee who operated a gasoline outlet on the property before and after
the construction project:

         Q And what about after they constructed the road, put in the curbing and also the
         driveway, the driving area? Did you have any problem there?

         A Yes.

         Q What was the problem?

         A Well, I had no more camper business after that because campers couldn't get --
         the way they had the driveways set up, you couldn't get into the pumps with like
         a camper or a truck pulling a big trailer.

         Q Did you have a camper business, truck business before that?

         A Lots of it, yes.

         Q What problem did they have getting in and out?

         A The way they had to turn in with their campers, you just couldn't get to the
         pumps at all. They had to back in and out and they could only use the one on the
         far side by the road, they could never use that one anymore because of the way
         they had to turn in. They could only use the one closest to the store if they could
         even get into that spot.

        We also note the testimony of Mr. Coffman to the effect of the limitation of access:




                                                  -5-
         Q Now, after the construction in the condition the property was in, the location
         of your pumps were the same and so on, you know. Could you operate that as a
         filling station?

         A No.

         Q Why?

         A Because you'd have to go on past the pumps and turn around and come back,
         being behind the curb, and our business just went to pot.

         Further, G.H. Conner, a real estate broker and auctioneer, testified that the property suffered
total incidental damages of $179,798.00 and that a portion of these damages were attributable to the
limitation of access to the property.

        We believe that this evidence is sufficient to support a finding that free and convenient access
to the property has been impaired as a result of the City's construction and that such impairment has
had a particular effect on the property. We do not find evidence in the record which preponderates
to the contrary.

         The City next contends that all property owners along the Parkway received sidewalks and
curbing as a result of the City's construction project and that all those property owners who had open
frontage prior to the construction project now also have restricted access problems. The City cites
the case of Betty v. Metropolitan Govt. of Nashville & Davidson County, 835 S.W.2d 1 (Tenn. Ct.
App. 1992) for the rule that, in order to prove damages to their property, the Landowners must show
that the access problems of which they complain "produce a particular and direct effect on the
property involved not shared by the general public". We believe that the above cited testimony of
Ms. Krachey and Mr. Coffman provide sufficient evidence that limitation of access to the property
in this case produced "a particular and direct effect on the property not shared by the general public."
The City's assertions to the contrary are without merit.

        Finally, the City argues that the Landowners redeveloped the property subsequent to the road
construction project and that State regulations would have required that the Landowners implement
the same curb cuts and designated access points as were constructed by the City. The City argues
that the Landowners would have, therefore, lost their unlimited access anyway and should not be
allowed to take advantage of the road project timing to make money at the City's expense. With
respect to this argument we agree with and adopt the following language from the judgment of the
Trial Court:

         There was an issue raised as to whether the defendants planned a future
         development of the property, which would have resulted in restricted access to
         comply with current restrictions even if the highway project and condemnation
         had not taken place. This is irrelevant, as the Court must consider the property as


                                                  -6-
        it existed at the time of taking. Owners of property have choices for future
        development, but condemnation by a taking authority results in an involuntary
        imposition of restricted land use upon the property owner, regardless of the
        owners' plans, options, and choices.

        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause is
remanded for such further proceedings as may be necessary and for collection of the judgment and
costs below. Costs of appeal are adjudged against the City of Sevierville and its surety.



                                            _________________________________________
                                            HOUSTON M. GODDARD, PRESIDING JUDGE




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