                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     April 11, 2000 Session

      GALLATIN HOUSING AUTHORITY v. TOWN OF CARTHAGE,
                      TENNESSEE, ET AL.

                        Appeal from the Circuit Court for Smith County
                           No. 4073    John D. Wooten, Jr., Judge



                    No. M1999-02041-COA-R3-CV - Filed February 9, 2001


This appeal arises from a suit seeking damages under a theory of inverse condemnation by the
Gallatin Housing Authority (“Plaintiff”) against the Town of Carthage, Smith County, Tennessee
(“Defendant”). The Plaintiff has appealed as to the Town of Carthage and Smith County although
the issues on appeal are directed to the Town of Carthage only. The Town removed some curbing
and grass from a small area located between a turnaround and the county jail and then paved the area.
At trial, the court found that the Plaintiff failed to prove by a preponderance of the evidence that it
owned the strip of land which it claimed was wrongfully expropriated by the Town and that even if
the Plaintiff proved ownership, the Town properly took the land pursuant to a dedication to the Town
on June 8, 1966. On appeal, the Plaintiff presents three issues: (1) whether the trial court erred in
its factual finding that the Plaintiff failed to prove ownership of the land, (2) whether the trial judge
erred as a matter of law in concluding that the dedication allowed the Town to expropriate the land,
and (3) whether the trial court erred in failing to consider the totality of the circumstances
surrounding the dedication where questions were raised as to the intentions of the grantor. For the
reasons hereafter stated, we affirm the trial court and find this appeal to be frivolous.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
WILLIAM C. KOCH , JR., J., joined.

Kurt O. E. Tschaepe, Gallatin, Tennessee, for the Appellant, Gallatin Housing Authority.

Jacky O. Bellar, Carthage, Tennessee, for the Appellees, Town of Carthage and Smith County,
Tennessee.

                                              OPINION

        On June 8, 1966, the Gallatin Housing Authority executed a document entitled Dedication
of Streets, Tennessee Projects Nos. 29-7A, and 29-7B, by the Gallatin-Housing Authority, to the City
of Carthage, Tennessee. The property at issue in this case is located at the end of McClarin Court
(now properly called McClarin Lane) bordering the county jail fence on the edge of the land included
in the Dedication. The Dedication contains broad language stating in part: “WHEREAS, the Gallatin
Housing Authority hereby dedicates all public ways and facilities, including, but not limited to,
streets, alleys, adjacent sidewalks, parking bays, water and fire mains, hydrants, storm drains, and
sewer systems underlying the streets to the City of Carthage for use as street and/or right-of-way
purposes.”

        At the end of McClarin Lane is a cul-de-sac or turnaound. The particular area at issue in this
case is the small portion of land between the turnaround and the county jail fence. Prior to the
paving of the small portion of land at issue, at the point where McClarin Lane ended, there was some
curbing, a section of grass, and the Smith County Jail chain linked fence and gate with vegetation
growing on it. On August 3, 1996, the Town removed approximately twenty feet of curbing at the
turnaround, excavated approximately ten feet between the curbing and the county jail fence, and put
down gravel. Some vegetation was also removed from the jail fence. In November, the Town paved
the section of land it had graveled establishing approximately a fourteen foot wide paved connection
between the jail fence and the McClarin turnaround. The chain linked fence and gate remained. The
area at issue was paved for safety purposes in case of emergency.

         The Plaintiff filed a complaint against the Town of Carthage, David Bowman, individually
and in his capacity as Mayor, Johnny Bane, individually and in his capacity as Sheriff, and Smith
County for inverse condemnation and, in the alternative, for trespass by Defendants Smith County
and the Town of Carthage. Defendants Bowman and Bane were voluntarily dismissed. The issue
at trial against Smith County was trespass only and the court directed a verdict in favor of Smith
County.

       The court found that the Plaintiff failed to prove by a preponderance of the evidence that it
owned the small portion of land at issue, a necessary element to establishing that the Defendant
Town of Carthage inversely condemned the land. Further, the court found that even if the Plaintiff
had proved ownership, the Town of Carthage acted properly in utilizing the land for right-of-way
purposes. The Defendant asserts that we should declare the Plaintiff’s appeal frivolous and award
Defendant damages pursuant to T. C. A. Section 27-1-222.

        Our review is governed by the provision of Tenn. R. App. P. 13(d) that “review of findings
of fact by the trial court in civil actions shall be de novo upon the record of the trial court,
accompanied by a presumption of the correctness of the finding, unless the preponderance of the
evidence is otherwise.”

        In this case, the Defendant did not commence condemnation proceedings, rather, the Plaintiff
filed an action for inverse condemnation. “[I]nverse condemnation is a shorthand description of the
manner in which a landowner recovers just compensation for a taking of property when
condemnation proceedings have not been instituted.” Jackson v. Metropolitan Knoxville Airport
Authority, 922 S.W.2d 860, 861-62 (Tenn. 1996) (Citing Johnson v. City of Greeneville, 435 S.W.2d


                                                 -2-
476, 478 (Tenn. 1968).” Inverse condemnation is a cause of action against a governmental defendant
to recover the value of property which has been taken in fact by the governmental defendant, even
though no formal exercise of the power of eminent domain has been attempted by the taking
agency.” 29A C.J.S. Eminent Domain § 381 (1992).

        T.C.A. Section 29-16-123 governs such actions and provides:

        If, however, such person or company has actually taken possession of such land,
        occupying it for the purposes of internal improvement, the owner of such land may
        petition for a jury of inquest, in which case the same proceedings may be had, as near
        as may be, as hereinbefore provided; or he may sue for damages in the ordinary way,
        in which case the jury shall lay off the land by metes and bounds and assess the
        damages, as upon the trial of an appeal from the return of a jury of inquest.

       We first address the issue of whether the Gallatin Housing Authority proved the Town
expropriated the land at issue. “[T]o establish a prima facie cause of action for inverse
condemnation, a plaintiff must allege a direct and substantial interference with the beneficial use and
enjoyment of the property at issue. The interference must be repeated and not just occasional.
Moreover, the interference must peculiarly affect the property at issue and result in a loss of market
value.” Jackson, 922 S.W.2d at 865 (Footnote omitted).

        “In any action brought under T.C.A. Section 23-1423 it is, of course, incumbent upon the
plaintiff to show that he is the owner of the land which has been taken for the purposes of internal
improvement if the ownership is denied by the defendant.” Cox v. State, 399 S.W.2d 776, 780
(Tenn. 1965). Therefore, the Plaintiff must prove ownership prior to addressing the other necessary
elements since ownership is at issue in this case. If the Plaintiff does not own the land at issue, a
cause of action for inverse condemnation cannot be maintained.

        The Plaintiff alleged ownership of the small portion of land at issue in the complaint. The
Defendant admitted that the Plaintiff owned the bordering tract of land, Tennessee Project No. 29-
7B, but with regards to the small portion of land at issue in this case, the Defendant stated: “To the
extent the allegations . . . claim that the tract of land at issue in this Complaint is owned by the
Gallatin Housing Authority, these Defendants are without knowledge or information sufficient to
form a belief as to the truth of that allegation.” Tenn. R. Civ. P. 8.02 provides: “If the party is
without knowledge or information sufficient to form a belief as to the truth of an averment, he or she
shall so state and this will have the effect of a denial.”

         The trial court found that “the Plaintiff failed to prove by a preponderance of the evidence
that it owned the strip of land at issue in this case, a necessary element to establishing that the
Defendant inversely condemned the land.” The Plaintiff maintains in this appeal that there was
evidence at trial sufficient to preponderate against the trial court’s finding that the plaintiff failed to
establish ownership. We disagree. At trial, the Plaintiff introduced blueprints of the property. The
blueprints were not sufficient to establish a property line or boundary. The Plaintiff also presented


                                                   -3-
lay testimony regarding ownership, none of which was persuasive to the trial court. In fact, a witness
at the trial, now the attorney representing the Plaintiff on appeal, testified specifically that he did not
know where the property line was located.

        The appeal of this case is somewhat of a mystery because the Plaintiff was unable to prove
the essential element of ownership. No person with knowledge of the boundaries testified for the
Plaintiff, and apparently, no experts were retained to determine the property line. Therefore, there
can be no finding that inverse condemnation had occurred or what, if any, land was taken.

        Since the ownership issue is dispositive of this case, the other issues presented by the
Plaintiff are moot. Nevertheless, we are of the opinion that even if the Plaintiff were able to prove
ownership of the property, the broad language of the Dedication covered the use to which the land
was put. The gate was present before the paving of the land. The purpose of the gate in the county
jail fence was for emergency use as was the paving of the small portion of land at issue

       From the evidence in the record, we find that there was no proof that the Plaintiff owned the
portion of the land at issue. The trial court is therefore affirmed. The Defendant has moved this
Court to find the appeal of the Plaintiff to be frivolous and to assess damages therefor. This appeal
had no reasonable chance of success and is frivolous. Bursack v. Wilson, 982 S.W.2d 341 (Tenn.
Ct. App. 1998); Wilson v. Ricciard, 778 S.W.2d 450 (Tenn. Ct. App. 1989). The costs of this appeal
should be taxed to the Plaintiff. This case is remanded to the trial court for assessment of damages
incident to this frivolous appeal and attorney’s fees.




                                                         ___________________________________
                                                         WILLIAM B. CAIN, JUDGE




                                                   -4-
