Readers know that some jurisdictions have statutes which permit private condemnations -- actions in which the owner of a landlocked parcel can exercise eminent domain to take the property of a neighbor for access. They are somewhat like common law easements by necessity, and we've seen then in Pennsylvania (private takings still must serve a public purpose) and Colorado (condemning owner must have concrete development plans), for example.
In Vise v. Pearcy Tennessee River Resort Inc., No. W2014-00649-COA-R3-CV (July 15, 2015), the Tennessee Court of Appeals reviewed that state's private condemnation statutes and concluded they only allow use of the private condemnation mechanism to create access to a landlocked parcel, and do not allow an owner who already enjoys limited access to condemn a neighbor's property to create "better" access.
Pearcy's parcel wasn't completely landlocked, and dirt roads over a neighboring TVA-owned parcel allowed limited access. Another neighbor, Vise, developed their parcel into a private resort, and with TVA's permission, paved a road which was partially on TVA's land to allow access to its newly-developed parcel. Pearcy began using the paved road to access its parcel also, and "[a]s a result of the exclusive use of the blacktop road, the dirt roads originally used by the Appellants fell into disrepair and became impassable." Slip op. at 2.
Pearcy asked TVA for an easement so it could also develop its parcel into an RV park. TVA's permission was contingent on Pearcy also gaining rights to use a portion of Vise's property. When Vise would not agree, Pearcy filed a private condemnation action under Tennessee law (Tenn. Code Ann. §§ 54-14-101, §§ 54-14-102) to condemn an easement.
The trial court rejected the claim and the Court of Appeals affirmed. Pearcy's parcel already enjoyed access to its parcel over the dirt roads, and was not landlocked. Yes, the access was bad, and it would not permit the type of access Pearcy needed to develop its property. But it was sufficient to allow access to Pearcy's parcel for "farming purposes" and that was enough. Strictly construing the two statutes, the court concluded that existing access was "adequate and convenient," and that "it would be a nonsensical result to allow a petitioner to make better use of their land at the expense of another‘s property rights[.]" Slip op. at 7. Section 102 only applies when a parcel is totally landlocked, and section 101 only allows private condemnations when access is refused, which it had not been:
Because the statutory requirement has not been met, and because a private condemnation may not be used to make better use of a property when access to the property is already established, we conclude that the trial court did not err in determining that the Appellants are not entitled to their condemnation action under Section 101.
Slip op. at 7-8.
A reminder that these statutes should be narrowly viewed and have a very limited scope.
Vise v. Pearcy Tennessee River Resort Inc., No. W2014-00640-COA-R3-CV (Tenn. App. July 15, 2015)
