                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                      July 13, 2000 Session


  CITY OF MURFREESBORO v. PIERCE HARDY REAL ESTATE, INC.

                     Appeal from the Circuit Court for Rutherford County
                            No. 35319    Robert E. Corlew, Judge



                    No. M2000-00562-COA-R9-CV - Filed October 12, 2001


       This case involves a dispute between the City of Murfreesboro and a landowner over the
value and the acreage of a tract of land taken by the city to be used for a greenway along the Stones
River. The city appeals the trial court’s denial of a motion in limine that the city filed to exclude
testimony of the landowner’s appraiser. The motion stated that the expert’s testimony relied on an
inadmissible method of valuation and should, therefore, be excluded. Additionally, the landowner
appeals the trial court’s ruling that the landowner did not own a .61 acre portion of the of the land
taken because, as it sits at the bottom of a navigable waterway, it is not subject to private ownership.

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

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

Thomas L. Reed, Jr., Jerry E. Farmer, Murfreesboro, Tennessee, for the appellant, City of
Murfreesboro, A Municipal Corporation in Rutherford County, State of Tennessee.

G. Sumner R. Bouldin, Jr., Murfreesboro, Tennessee, for the appellee, Pierce Hardy Real Estate, Inc.

                                              OPINION

        The City of Murfreesboro condemned 2.36 acres of a 10.5 acre commercial tract that was
owned by Pierce Hardy Real Estate, Inc. (“Landowner”) and located along the West Fork of the
Stones River. The city desired to take, and subsequently has taken, the land for the construction of
a greenway along the river. The 2.36 acre tract is comprised of .61 acres located in the riverbed of
the Stones River and 1.75 acres located along the embankment of the river. Landowner’s deed
describes the property as running to the center of the river. The condemned property includes land
at the bottom of the river (between the centerline of the river and the riverbank), the riverbank
(including sheer bluffs), and a strip across the top of the bluffs.
         In the trial court, the city filed two motions which are the subject of this appeal.1 The first
was a motion to have the testimony of Landowner’s appraiser excluded on the basis that the
appraiser used an improper method of valuation. Landowner’s appraiser planned to testify that the
entire tract taken by the city was valued at $70,000.00 per acre and, since the city was taking 2.36
acres, the city owed just compensation of $165,200.00. The city’s motion cited the Tennessee
Supreme Court decision Wray v. Knoxville, L.F. & J.R. Co., 113 Tenn. 544, 82 S.W. 471, 473
(1904), and stated that the planned testimony of the expert violated its precedent and, therefore,
should be excluded. The trial judge denied this motion, and the city appeals that ruling.

        The second motion filed by the city was to have the West Fork of the Stones River
recognized as a navigable waterway. The city contended that, pursuant to Tennessee law, the
riverbed of a navigable waterway is incapable of private ownership. Therefore, Landowner would
not be entitled to compensation for that portion of the condemned land. In support of its contention,
the city asserted that the U.S. Army Corps of Engineers had given public notice that the Corps had
determined that the waterway was navigable. Further, the city argued, such notice was dispositive
on the issue of whether the waterway was navigable and, as the federal government was asserting
jurisdiction over the river, the river was navigable. The trial judge agreed, stating that “as a practical
matter” because the federal government was asserting jurisdiction over the river, neither the State
or a private party could claim a right to the land. Landowner appeals that ruling.

                 I. Standard of Review for the Trial Judge’s Ruling on Expert Testimony

        The first issue before this court is whether the testimony of Landowner’s appraiser should
be admitted. The “trial judge, of course, has very broad discretion in the conduct of a trial, and
probably in no area does he have wider discretion than dealing with the . . . admission of the
testimony of expert witnesses.” Shelby County v. Barden, 527 S.W.2d 124, 131 (Tenn. 1975). In
condemnation cases, a trial court is allowed wide discretion when ruling on matters related to expert
testimony. State Dep’t of Transp. v. Veglio, 786 S.W.2d 944, 947-48 (Tenn. Ct. App. 1989); State
ex rel. Moulton v. Blake, 357 S.W.2d 836, 838 (Tenn. Ct. App. 1961). Further, Tennessee case law
generally holds that the trial judge’s wide discretion extends to the “admissibility of a expert
testimony as to [the] value” of the land taken in condemnation cases because the weight to be given
each expert’s testimony is for the trier of fact. State ex rel. Dep’t of Transp. v. Brevard, 545 S.W.2d
431, 436 (Tenn. Ct. App. 1976). Trial courts have broad discretion over the admission of all
evidence concerning the value of condemned land. City of Johnson City v. Outdoor West, Inc., 947
S.W.2d 855, 858 (Tenn. Ct. App. 1996). Our role, therefore, is to review the trial court’s
determination on the admissibility of the proposed expert’s testimony regarding valuation of the land
taken by the city under an abuse of discretion standard. Veglio, 786 S.W.2d at 948.

        The abuse of discretion standard requires us to consider (1) whether the decision has a
sufficient evidentiary foundation, (2) whether the trial court correctly identified and properly applied


        1
            The city filed a third motion, but the trial judge’s ruling on that m otion was no t appealed by either party in th is
case.

                                                               -2-
the appropriate legal principles, and (3) whether the decision is within the range of acceptable
alternatives. State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn. Ct. App. 2000). While
we will set aside a discretionary decision if it does not rest on an adequate evidentiary foundation,
or if it is contrary to the governing law, we will not substitute our judgment for that of the trial court
merely because we might have chosen another alternative.

            II. Motion in Limine to Exclude Testimony by the Landowner’s Appraiser

         When a public entity takes land by exercise of the power of eminent domain, just
compensation must be paid to the landowners. Tenn. Const. art.1, § 21. Thus, the court’s objective
in an eminent domain proceeding is to determine and award just compensation. Love v. Smith, 566
S.W.2d 876, 878 (Tenn. 1978); State v. Williams, 828 S.W.2d 397, 400 (Tenn. Ct. App. 1992). The
required “just compensation” is the fair market value, in cash, of the land actually taken, at the date
of the appropriation. Alloway v. City of Nashville, 13 S.W. 123, 123 (Tenn. 1890); Tenn. Code Ann.
§ 29-17-810. “Market value” is the “price which would be paid by a willing buyer from a willing
seller at the time the land was taken.” Williams, 828 S.W.2d at 401. It is estimated as if the owner
were willing to sell, but did not have to sell, and the taker desired to purchase, but did not have to
purchase, that particular quantity of land at that place and in that form.” Brevard, 545 S.W.2d at
434.

        As a general rule, in determining the compensation, or the market value of the property taken,
every element which can fairly enter into the question of value may be considered. 29A C.J.S.
Eminent Domain § 119, at 316 (1992); Alloway, 88 Tenn. at 510, 13 S.W. at 124 (in determining
market value, everything that enhances or depreciates value must be considered). In arriving at fair
market value, all attributes of the property, including reasonably available uses, are to be taken into
consideration, without undue emphasis on a single element in relation to general value. Shelby
County v. Stallcup, 594 S.W.2d 392, 394-95 (Tenn. Ct. App. 1979). All of the constituent elements
of the land affect its market value. State Dep’t. of Trans. v. Woods, No. 01A01-9308-CV-00383,
1994 WL 44955, at *2 (Tenn. Ct. App. Feb. 16, 1994) (no Tenn. R. App. P. 11 application filed).
While the jury is limited in awarding just compensation to the range of market values established
by the competent proof, the jury is entitled to consider all relevant factors affecting the value. City
of Johnson City, 947 S.W.2d at 860.

        To meet the objective of determining fair market value, the “trier of fact must hear proof.”
State v. Cox, 840 S.W.2d 357, 363 (Tenn. Ct. App. 1991). The market value is arrived at by
estimating the “specific, identical land taken by placing a value upon it. This can only be done by
a statement of facts, and by opinions and estimates of parties acquainted with the land and upon such
facts, opinions, and estimates of the land must the valuation be based.” Wray, 82 S.W. at 473.
Evidence of value in a just compensation case “must be restricted . . . to the general value of the land,
estimated upon consideration in a single view of all its elements of value . . . .” Brevard, 545
S.W.2d at 434. The courts of this State have “followed a policy of liberality in admitting opinion
evidence respecting the fair cash market value of real estate.” Smith v. Livingston Limestone Co.,
Inc., 547 S.W.2d 942, 943 (Tenn. 1977).


                                                   -3-
         In the usual course of proceedings, the landowner and the taking authority produce witnesses,
often experts, who testify regarding the fair market value of the property. See, e.g. Smith County v.
Eatherly, 820 S.W.2d 366, 368 (Tenn. Ct. App. 1991). When an expert testifies as to the value of
the land taken, “the jury is not required to accept or reject in toto the theory of either party, but may
arrive at its own concept of truth and justice from the evidence.” City of Johnson City, 947 S.W.2d
at 859 (quoting State ex rel. Shaw v. Shofner, 573 S.W.2d 169, 174 (Tenn. Ct. App. 1978)). The jury
is entitled to consider the credibility of an expert’s testimony on the value of land in light of all
relevant evidence. Id. at 859; Chambers v. Bradley County, 53 Tenn. App., 455, 461, 384 S.W.2d
43, 45 (1964) (“The general rule that the weight to be given expert opinion evidence is for the jury
is too familiar to justify extended citation of cases.”).

         An expert witness qualified by “knowledge, skill, experience, training, or education” may
testify to scientific, technical, or other specialized knowledge if it “will substantially assist the trier
of fact to understand the evidence or to determine a fact in issue.” Tenn. R. Evid. 702. A trial court
may disallow expert testimony if the underlying facts or data show a lack of trustworthiness. Tenn.
R. Evid. 703. The facts or data underlying the expert’s opinion must be “of a type reasonably relied
upon by experts in the particular field in forming opinions or inferences.” Id. In addition, the trial
judge has “wide discretion in passing upon the admissibility of expert testimony as to value.”
Brevard, 545 S.W.2d at 436-37. Further, an expert witness is not disqualified to testify merely
because he may have used some criteria in arriving at his opinion which is not altogether the standard
among appraisers. Id.

        Obviously, an appraiser’s estimate of the value of the condemned portion of Landowner’s
property would be helpful to a fact-finder whose responsibility was to set that value. In the case
before us, the city opposes the appraiser’s testimony regarding value because of the methodology he
used to arrive at that value. The attack does not, however, rest on a claim that the methodology is
not one reasonably relied upon in the field of appraisal. Instead, the City of Murfreesboro sought
to exclude the testimony of Landowner’s expert on the basis that his estimate of the value of the land
taken was arrived at by a method determined to be improper in Wray v. Knoxville, LaFallette &
Jellico Railroad Co., 113 Tenn. 544, 82 S.W. 471 (1904). In that case, the Tennessee Supreme
Court determined that the trial court had used (through sustaining objections to testimony and its
instructions to the jury) an incorrect method for valuing the specific land taken.

        By the rule laid down by the learned trial judge the specific land taken is never
        valued. He directs the witnesses to value the whole tract, including the right of way,
        and then to value the remainder of the tract, excluding the right of way, and they are
        never permitted to value the land actually taken, but only to infer, by a process of
        subtracting the value of the remainder from the value of the whole tract, what is the
        value of the part taken. But the witnesses were not permitted to value the land taken,
        and this is what the law says they shall do.

Wray, 113 Tenn. at 554, 82 S.W. at 473.



                                                   -4-
         In the Wray decision the Tennessee Supreme Court held that an inference, or before and after,
method of valuation is inappropriate. Id. A before and after method is one in which the value of the
land is computed as the difference between the value of the entire tract of land before the taking and
the value the land remaining after the taking. Id.2 Thus, this method estimates any decrease in the
value of the land remaining, not the value of the land taken.

          The city equates the appraiser’s methodology herein with the before-and-after valuation of
the untaken portion of a parcel disallowed in Wray. We respectfully disagree with that
characterization. In support for its request the city cites the Wray decision for the proposition that
“[t]he Wray Court held that taking a per acre value for an entire tract, then subtracting the value of
the remainder from the value of the whole to arrive at the value of the part taken is an incorrect
method of valuation” (emphasis added). However, the court in Wray stated that it was improper for
a trial judge to instruct the jury that “the whole tract must be first valued at what it was worth before
the railroad touched it and again after the right of way was carved out, and the difference would
represent the value of the part taken and appropriated.”

         In the present case, Landowner’s appraiser planned to testify that the value of the 2.36 acres
taken by the city was $165,200. That estimate is based upon his opinion that the value of the entire
tract of land owned by Landowner was $735,000.003 and that the total property was 10.5 acres;
therefore, the property was worth $70,000.00 per acre. Since the city was taking 2.36 acres of land
that was worth $70,000.00 per acre, the value of the land taken by the city was $165,200.00. This
method does not constitute consideration of the decrease in value of the remaining portion of
Landowner’s property; rather, it seeks to value the specific piece of land condemned. Accordingly,
this testimony does not violate the holding in Wray.

        The aim of the court in Wray was to prevent testimony that combined an assessment of
damages to the land remaining with an assessment of the value of the land taken. The testimony of
the expert in the present case does not combine these figures.4 Having determined that the proposed
testimony is admissible under the Wray holding, we find no basis for reversing the trial court in its
exercise of its broad discretion to determine the admissibility of testimony of experts. Brevard, 545
S.W.2d at 436-37. The methodology used by the appraiser goes to the weight to be given his opinion
of the value of the land taken, and the trier of fact is the final arbiter as to the credibility and weight



         2
           The reasoning behind exc luding this type of estimation is (1) it calls for the inference of the value of the
property taken because there is no direct testimony about the value of the spec ific piece of pr operty taken and (2) it
combines the computations of value of the specific piece of property taken and damages to the remaining property due
to the taking.

         3
          These numbers are estimations calculated from the numbers p rovided in the briefs of the p arties. They may
not be exa ct and are us ed by this cou rt strictly for explicative purpose s.

         4
         In addition to fair compensation for property actually taken, a landowner may be entitled to “incidental
damages” to the land rem aining in his po ssession after a p artial taking. State v. Parkes, 557 S.W.2d 504 , 507 (Tenn.
1977) . Damage s to the remain ing portion o f Landow ner’s prop erty were not p led in this case.

                                                          -5-
of testimony. 5 Davidson County Bd. of Educ. v. First Am. Nat’l Bank, 301 S.W. 2d 905, 911 (Tenn.
1957). We affirm the trial court’s exercise of its discretion in allowing the testimony of
Landowner’s expert.6

                         III. Motion in Limine Regarding the Navigable Waterway

         The city also filed a motion in limine to preclude Landowner from introducing evidence
regarding the value of .61 acres which is part of the 2.36 acre tract condemned by the city. That .61
acres is part of the riverbed of the West Fork of the Stones River and is under water. The city asserts
that the river is a navigable waterway and, pursuant to Tennessee law, the riverbed of a navigable
waterway cannot be held by a private party. Therefore, the city asserts, Landowner is not entitled
to compensation for land it cannot own or convey.

        As proof that the West Fork of the Stones River is a navigable waterway, the city relies on
a public notice posted by the US Army Corps of Engineers, dated May, 8, 1986, which includes a
“List of Navigable Waters of the United States within the Nashville District.” The list of navigable
waters includes “West Fork, Stones River.” The city argues that this public notice is conclusive
evidence that the West Fork Stones River is navigable.

        In Tennessee, where a waterway is “navigable” in the legal sense, it is deemed to be held by
the state in trust for the citizens. State ex rel. Cates v. West Tenn. Land Co., 127 Tenn. 575, 158
S.W. 746, 752 (Tenn. 1913). As such, neither the waters nor the lands underlying them are capable
of private ownership. Id. at 747. “Under Tennessee law title to the bed of a navigable stream, to the
low-water mark is publicly held and belongs to the State.” Uhlhorn v. Kaltner, 637 S.W.2d 844, 846



         5
           To the extent the city’s real problem is a methodology which values all the ac res on Lan downer’s p roperty
equally, the city is free to cross examine the appraiser regarding those issues and to present expert testimony of its own
to contradict the value estimated by Landowner’s appraiser.

         6
            The city also included in its motion in limine regarding L andown er’s expert’s testimony a request that if the
trial court allowed the expert’s testimony that it, “[i]n the alternative . . . disallow any testimony bas ed on the c ompara ble
sales used in [the expert’s] report.” The city made its objection on the ground that such testimony would not be relevant,
and the trial court characterized it as based on the theor y that the comp arables use d by the app raiser “are no t sufficiently
compa rable to the lan d in question .” The trial court actually granted the city’s motion, but stated that “it appears that
upon direct examination, no party should be entitled to discuss with their exper t witnesses com parable sa les specifically,
because in fact everyone of land is unique, and the fact that anoth er parcel . . . sold for som e dollar valu e is hearsay . .
. ” and would be excluded on grounds of relevance. The court further stated that “[t]he opportunity to explore such
comparable sales rests with the party who cross-examines the expert witne ss should that p arty seek to attack the bas is
for the opinion of the expert stated on direct.” This court has stated that “[a]s to value, the expert witness may expre ss
his opinion and then state the basis on which he arrived at that opinion, but the answers given to the questions on cross-
examination may be loo ked to by the Court . . . in evaluating the opinion expressed by the [expert].” Brevard , 545
S.W.2d at 437. The city has argued the “comparable sales” issue in its brief. However, we decline to address the question
of the admissibility of potential testimony which may or may not be elicited by the city on cross-examination of
Landow ner’s expert. Further, the city’s motion was granted, and the city’s application for interlocutory appeal was
granted by the trial court and by this court to review “the method of . . . valuation” used by the appraiser.

                                                              -6-
(Tenn. 1982). The legal consequences of a determination that a waterway is navigable, in the legal
sense, are well settled.

       The only question for determination is whether Reelfoot Lake is a navigable body of
       water in the technical legal sense of that term. If it is, we think it is beyond dispute
       upon the authorities that neither the waters nor the lands underlying them are capable
       of private ownership. If it is not, and is navigable only in the common or ordinary
       acceptation of the term, then both the waters and the lands underlying them are
       capable of private ownership, and belong to the defendants.

Cates, 127 Tenn. at 580, 158 S.W. at 747.

        To be a “navigable” such that it invokes the prohibition on private ownership, a waterway
must, in its ordinary state, be capable of and suited to navigation by vessels employed in the ordinary
purposes of commerce. Cates, 127 Tenn. at 584-86, 158 S.W. at 749. The determination of whether
a waterway meets the definition, and is, therefore, navigable is one of fact to be determined by the
jury. Southern Ry. Co. v. Ferguson, 105 Tenn. 552, 562-63, 59 S.W. 343, 346 (Tenn. 1900).

      The issue of whether the Stones River is a navigable waterway was not determined herein,
however, on the basis of a factual record. Instead, the trial court found:

       The rule in Tennessee has always been that the question of navigability of a stream
       is one of fact which must be determined by a jury. Where the federal government,
       however, has previously determined a stream to be navigable, it appears that from a
       practical standpoint, one who seeks to assert his possession of the land lying under
       the navigable stream would be prevented from doing so by virtue of federal
       enactments controlling those streams. Thus, where the federal government is
       exercising jurisdiction over the portion of the Stones River in question, neither the
       State nor the City, and certainly not a private landowner has any authority to exercise
       domain over that soil covered by the navigable waterway, and thus from a practical
       standpoint, it appears that the landowner in this cause should be prevented from
       introducing proof concerning that land below the low water mark of the river.

         Thus, the issue before us is whether a determination by the federal government, or more
accurately its agent the Corps of Engineers, that a waterway is navigable for federal purposes
preempts state authority to determine whether that waterway is navigable in the legal sense with state
law consequences to ownership interests. Because this issue presents a question of law, we review
the trial court’s decision de novo. Tenn. R. App. P. 13(d).

        We begin by examining the Corps of Engineers’ own statement of the authority and effect
of the Public Notice which is the basis for the city’s motion and the trial court’s decision. That
notice provided, in pertinent part:



                                                 -7-
       The Corps of Engineers, under delegated authority from the Secretary of the Army,
       is responsible for the protection and preservation of all waters of the United States
       including navigable waters of the United States. . . . The term “navigable waters of
       the United States” is defined as those waters which are presently used, or have been
       used in the past, or may be susceptible for use to transport interstate or foreign
       commerce.

        The definition used by the Corps is that contained in 33 C.F.R. § 329.4 (2001), part of the
Rivers and Harbors Act of 1899. The authority of the Corps of Engineers over navigable waters of
the United States is grounded in that Act, 33 U.S.C. §§ 401 et seq. The Act was originally passed
to protect interstate commerce in navigable waters, and it is the basic legislation for controlling work
and activities in navigable waters of the United States. Under the Act, the Chief of Engineers and
the Secretary of the Army must approve all plans and specifications for the placement of structures
and other works in the waterways which fit the legislative definition of “navigable waters of the
United States.” 33 U.S.C. § 401 (2001); 33 C.F.R. § 329.4 (2001) (stating the definition of
navigable waters). Obstruction or alteration of such waters is prohibited without a permit from the
Corps of Engineers. 33 U.S.C. § 401 (2001).

        Federal law gives the Corps of Engineers the power to declare waterways navigable for the
purpose of furthering its mission, and this declaration is “binding in regard to the activities of the
Corps of Engineers.” 33 C.F.R.§ 329.9 (2001). However, “precise definitions of ‘navigable waters
of the Untied States’ or ‘navigability’ are ultimately dependent on judicial interpretation and cannot
be made conclusively by administrative agencies.” 33 C.F.R. § 329.3 (2001). See Miami Valley
Conservancy Dist. v. Alexander, 692 F.2d 447, 451 (6th Cir. 1982) (holding that the Corps of
Engineers “failed to prove that [portions of the Miami] River and its tributaries are navigable” );
United States v. Harrell, 926 F.2d 1036, 1039 (11th Cir. 1991) (holding that the Corps of Engineers
incorrectly determined that Lewis Creek was a navigable waterway). The regulations governing the
Corps of Engineers make the same point clearly:

        Although conclusive determinations of navigability can be made only by federal
        Courts, those made by federal agencies are nevertheless accorded substantial weight
        by the courts.

33 C.F.R. § 329.14 (emphasis added).

        Because a determination by the Corps of Engineers that a particular waterway is a “navigable
water of the United States” is not binding on a federal court called upon to make that legal decision,
such agency determination cannot be binding on Tennessee courts on the question of whether a
waterway is navigable in the legal sense, under state law, so as to affect ownership rights. For that
reason, we disagree with the trial court’s conclusion that the agency’s public notice precludes judicial
determination of navigability. While such a determination by the Corps may be accorded substantial
weight, Landowner is entitled to introduce contrary proof and to question the Corps determination
and the procedures used to reach it. Miami Valley Conservancy Dist., 692 F.2d at 449-50; Harrell,
926 F. 2d at 1043-44 (the letter from the Corps of Engineers “fall far short of a determination of

                                                  -8-
navigability required by 33 C.F.R. § 329.14”and was not entitled to substantial weight, citing the
procedures required by 33 C.F.R. § 329.14(b)).

        The record before us does not include any reference to a federal court determination that the
West Fork of the Stones River is a navigable water of the United States. We are not convinced,
however, that a determination of navigability for federal regulatory purposes equates to a finding of
navigability to state law purposes. Through the commerce clause of the United States Constitution,
Congress has authority to legislate with respect to navigable waters to the extent commerce is
concerned. United States v. Chicago, M., St. P. & P.R. Co., 312 U.S. 592, 595, 61 S. Ct. 772, 775
(1941); see also State v. Muncie Pulp Co., 104 S.W. 437, 449 (Tenn. 1907). The federal
government has paramount or dominant control over navigable waters used in interstate commerce
for purposes of and to the extent necessary to protect interstate commerce. U.S. v. Rands, 389 U.S.
121, 123, 88 S. Ct. 265, 226 (1967); Day v. Armstrong, 362 P.2d 137, 143 (Wyo. 1961). That
control, however, involves use of the waterway, not ownership of the soil beneath it. “This power
to regulate navigation confers upon the United States a ‘dominant servitude.’” Rands, 389 U.S. at
123, 88 S. Ct. at 267. The Rivers and Harbors Act has no effect on or application to questions of
ownership of the land under the waterway.

                  The ownership of the bed and banks of navigable waters within a
                  state ordinarily is governed by state law, subject to the paramount
                  power of the United States to ensure that such waters remain free for
                  interstate and foreign commerce. The ownership of such lands, as
                  between the state and riparian owners, is determined according to the
                  local law of the state in which they are situated.

65 C.J.S. Navigable Waters § 106, at 183 (2000). Navigable waters of the United States are public,7
and their use cannot be interfered with by the state or the riparian owners. The federal government’s
paramount control over such waters is defined by the commerce clause. Chicago, M., St. P. & P.R.
Co., 312 U.S. at 595-96, 61 S. Ct. at 775. However, other than on lands owned by the United States,
title of navigable waters, and the soil beneath them, lies in the states. Donnelly v. United States, 228


         7
          In Muncie Pulp Co., 119 Tenn. at 94-95, 104 S.W. at 449, our Supreme Court described the consequence of
the Mississippi River having be en declared a navigab le water of the United States by Co ngress as follows:

     The comme rce clause o f the Constitution of the United States, all other things aside, affords ample protection
     to the right of every citizen to the free navigation of the river, whether the current be in one state or the other,
     without fear or hindrance or b urdens imposed by such states.

In addition , in Cates, 158 S.W. at 749, our Supreme Court stated:

     The chief importanc e of determ ining whether R eelfoot Lak e is navigable in the technical legal sense does not
     concern its use as a public highway for comm erce, but is in reg ard to the res pective rights of the public and
     private person in the use and ownership of its waters and the lan ds subme rged by them . It is primarily a
     question of dominion and ownership, rather than one of commerce and travel. The r ight of the pub lic to use
     its waters as a highw ay for comm erce is prec isely the same . . .   .

                                                             -9-
U.S. 243, 260, 33 S. Ct. 449, 454 (1913). Consequently, a state may decide the ownership of
submerged lands, irrespective of any federal determination of the navigable or nonnavigable
character of the waters above them. Day, 362 P.2d at 141.

                   Whether, under local law, the title to the bed of the stream is retained
                   by the State or the title of the riparian owner extends to the thread of
                   the stream, or, as in this case, to low water mark, the rights of the title
                   holder are subordinate to the dominant power of the federal
                   government in respect of navigation.

Chicago, M., St. P. & P.R. Co., 312 US at 596, 61 S. Ct. at 775 (emphasis added). In making a
determination of ownership, the state may apply its rules regarding ownership of submerged lands.
Donnelly, 228 U.S. at 260, 33 S. Ct. at 454. In Tennessee, that determination is fact based.

       Therefore, we conclude that the question whether the West Fork of the Stones River is a
navigable water of the United States does not necessarily determine the ownership, as a matter of
law, of the riverbed.8 Nonetheless, we recognize the inherent rationality of the trial court’s
observations regarding the relationship between navigability for federal law purposes and
navigability for state law purposes. We interpret the trial court’s statements as a recognition that a
waterway which meets the definition of “navigable waters of the United States” will also be
navigable under Tennessee’s definition. The definition of “navigable waterway of the United States”
has been considered often in federal courts, and can be summarized as follows:

         The test of navigability has been stated and restated by the federal courts for the last
         one hundred years. Navigability has been defined in countless ways but its essential
         elements have remained constant. The District Court here properly identified these
         elements: A navigable waterway of the United States must (1) be or have been (2)
         used or susceptible of use (3) in the customary modes of trade and travel on water (4)
         as a highway for interstate commerce.

Miami Valley Conservancy Dist., 692 F.2d at 450.


         8
           The city argues that the state legislature’s adoption of Tennessee Code Annotated § 69-1-11 7 constitutes state
recognition of the navigability of waterways which are subject to the Rivers and Harbors Act. We respectfully disagree.
That statute is part of a chapter on watercourses which begins with the statement th at all navigable waters are p ublic
highways. That provision has been determined to be merely a statement of the common law, and, even without the
statute, commo n law forbid s the obstruc tion of naviga ble streams. Southern Ry. Co., 105 Tenn. 552, 562, 59 S.W. 343,
345 (1900). The remainder of the chapter deals primarily with keeping such waterways open for navigation. To that
end, Tennessee Code Annotated § 69-1-117 prohibits any project which may impair the navigability of any waterway
in the state without a permit issued by the state department of environment and conservation. Tenn. Code Ann. § 69-1-
117(a). The portion of that statute upon w hich the city plac es significance sim ply states that any wa terway subje ct to
the Rivers and Harbors Act is exempt from the permit requirements. We interpret that provision merely as recognizing
the Corps o f Engineers p ermitting autho rity for those wate rways cove red by that A ct. To the extent that the statute can
be read as de ferring authority to the federal government, it relates only to permitting authority. We find no legislative
intent to grant au thority to determ ine ownersh ip rights unde r state law to an a gency of the fed eral govern ment.

                                                           -10-
        Thus, there is logic to the assumption that a waterway which is used or usable for travel in
interstate commerce would also be navigable for purposes of commerce within the state. We do not
disagree with the trial court’s assessment of the practicality of a factual determination that the West
Fork of the Stones River is a navigable waterway of the United States. However, there is no proof
in the record before us regarding the navigability of the river at all, except for the Public Notice
issued by the Corps of Engineers.

       Accordingly, we reverse the trial court’s order finding that the West Fork of the Stones River
is navigable and, thus, its riverbed is not subject to private ownership. The determination of
navigability is still an issue for the trier of fact based upon evidence relevant to that determination.

       However, we agree with the city that if the West Fork of the Stones River is determined to
be navigable, Landowner is not entitled to compensation for that portion of the condemned land
beyond the low-water mark, because there can be no private ownership rights in the riverbed.

         In this state it has long been established that grants of land lying upon navigable
         streams extend to the ordinary low water mark only, and that the title to the bed of
         such streams remains in the state. . . . If a water course be navigable in the legal
         sense, the soil covered by the water, as well as the use of the stream, not only belongs
         to the public but is not subject to entry or grant as other land.

Cunningham, 28 Tenn. App. at 651, 192 S.W.2d at 341 (citations omitted). Thus, any deed to
Landowner which purported to include land under the river, if that river is determined to be
navigable, must be read as conveying only that property extending to the low water mark.

        Landowner has argued that, even if a portion of the condemned land lies under a navigable
stream, the city cannot avoid paying for that portion because the city has already condemned the
property and cannot “uncondemn” that portion. Landowner is mistaken its interpretation of the
consequence of a determination that the river is navigable. If that is the case, the disputed portion
of land under the riverbed belongs to the State, to be held in trust for the public. Such publicly held
property is not subject to condemnation by a municipality. Therefore, if the Stones River is
navigable, any attempt by the city to condemn the land belonging to the state was a nullity. The city
is not “uncondeming” the property; rather, the property was never actually condemned.

        We remand the issue of whether the river is navigable, in the legal sense, for evidence on that
issue and, consequently, a determination, if it becomes necessary, regarding whether a portion, and
what portion, of Landowner’s property condemned by the city is incapable of private ownership
because the river is a navigable waterway.9




         9
           W e do not hold tha t a reduction of the amount of land actually taken would result automatically in a
concomitant reduction in the value of the land taken. That issue remains to be decided by the jury who is to determine
the just comp ensation du e Lando wner in light of all rele vant circums tances.

                                                        -11-
        In summary, we affirm the trial court’s ruling on the admissibility of the testimony of
Landowner’s appraiser regarding the value of the condemned property. We reverse the trial court’s
holding that Landowner is precluded from claiming ownership of land under the river and remand
for a hearing on that issue. Costs are taxed to the City of Murfreesboro.



                                            __________________________________________
                                            PATRICIA J. COTTRELL, JUDGE




                                              -12-
