More from our end-of-year clearing of the opinion hopper.
Winston Churchill reportedly said, “Never give in–never, never, never, never, in nothing great or small, large or petty, never give in except to convictions of honor and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy.”
Well, the case of City of Memphis v. Tandy J. Gilliland Family LLC, No. W2014-02472-COA-R3-CV (Dec. 16, 2015) might prove the point.
The opinion was the second time the Tennessee Court of Appeals considered issues regarding the taking of the Gilliland Family’s land by the Memphis Light, Gas, and Water Division (nice use of the Oxford comma there, MLGW) for utility poles. The first time up, the question involved public use. The court concluded the taking was for public use, even though MLGW allowed the poles to be shared by private telecommunications and cable providers. In the course of resolving this issue, the court concluded that a federal law, the Pole Attachment Act, 47 U.S.C. § 224, mandated that “utilities” allow “co-location.” The court remanded for valuation.
The trial court dutifully applied the court of appeals’ conclusion and rebuffed the property owner’s attempts to keep arguing the point that the Pole Attachment Act didn’t require sharing, and thus co-location rights could not be part of the taking. Law of the case and all that. Undaunted, the owners appealed again, arguing that the first court of appeals’ decision was wrong insofar as it concluded that co-location rights could be taken by MLGW, because the definition of “utility” in the Act excludes entities owned by state and local governments, and MLGW is a subdivision of the City of Memphis. The city protested: it’s too late to reargue this because this point of law was settled the first time around.
Mea culpa, held the court, the owner is right: we goofed. But the court didn’t overrule its prior ruling that the taking was for public use, only the issue of whether MLGW was required by the Pole Attachment Act to allow co-location. The court allowed the condemnation to go forward, but vacated the co-location rights granted.