# FILED
October 8, 199 7 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) JAME S C. HI SE, JR . and wi fe , ) Shelby County Circuit Court BRENDA L. HISE , ) No. 74283 T.D. ) Plaintiff

s/Appella nts. )

) VS. ) C.A. No. 02A01-9701-CV-00023 ) STATE OF TEN

NESSEE , ) DEPART MENT O F ) TRANSPO RTATION, BR UCE ) SALTSMAN, C OMMISSIONE R , ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable Kay S. Robilio, Judge

John D. Horn e , THE WINCHESTER LAW FI RM, Memphis, Tennessee Attorney for Plain tiffs/App ellants.
John Knox Wa

lkup , Attorney Gene

ral & Reporter Michael E. Moore , Solicitor General Larry M.Teague , Senior Counsel Attorney for Def endants/ Appellee s.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concur s) INMAN, Sr. J. : (Concur s)1 29-16-123. Action initiated by owner. -- (a) If, howe ver, such person or company has actually take

n possession of such land, occupy ing it for the purposes of internal improvement, the owner of such land may

petition for a jury of inque st, in which case the same proceedings may be ha d, as ne ar as ma y be , a s h er ei nb efor e p ro vi de d; or he ma y su e for da ma ge s i n t he or di na ry w ay, in which case the jury

shall lay off the land by

metes and bounds and assess the damages, as upon the trial of an app eal fro m the retu rn of a ju ry of inques t. Ja mes C . Hise, Jr. and wife, Brenda L . Hise sued the State of Tennessee, the Department

of Transportation and its commissioner for damages in an inverse condemnation action. The compl aint a lleges that, after c onveying a portion of their property to the state, they lear

ned that the project

adverse ly im pacted t heir com mercial propert y. T he defe ndants fi led a motio n to dismiss on the basis of sovereign immunity . The motion was granted and the plaintiffs appea led.
Appellan ts contend t

hat they are aut horized to

bring th is action a

gainst t he State pursuant to T.C.A. § 29-16-123(a). 1 As noted below, this section of the em i nent domain statutes permits suit

by the landowner, commonly r eferred to as inverse condemnation. They further rely

on Art. I, § 2 1 of the Co nstitution o f Tenne ssee whic h provide s, in part , that no one ’s prope rty shall be taken without just compensation.

App ellants acknowl edge A rt. I , § 17, whic

h provide s in part th at “suit s m ay b e brough t again st the State

in such ma

nner and in such co

urts as the Legislature

may by law direct.” They contend t hat the le gislatu

re has a uthorized a suit such a s thei rs agai nst t he sta te by the p assage of § 29-16 -102(a) of the em inent doma

in statute , which pr

ovides:

This chapter

shall be d eemed, u nless expr essly stated to th e c on tr ar y, and without inc orporat

ion or referenc e, to be a

part of every

section, or legislative act, present or future, which g rants the power of such condemnation.
They further rely

on T.C.A. § 29-20-105 of the Governmental Tort L iability Act

which provides that “[t]his chapter

shall not a

pply to any action in eminent domain

initiated by a landowner

under §§ 29- 16-123 and 29-16-124 nor beconstrued to impliedly repeal those statutes.”However, this Act does notapply to the stat

e government, its agencies and departments. Lucius v. Ci ty of Memphis , 925 S.W.2d 522, 525 (Tenn. 1996).2 54-5-111. Rights-of-way for state highways -- Liability for cost. -- (a) The state of

Tennessee is liable for and shall be held to pay , through its department of transportation and as other highway

expenses are paid, for all rights-of-wa y and damag es and costs incident to the acquisition and use of same, whether by condemnation suits or otherwise as provided by existing laws, necessary

to the construction of any hig hway, or pa

rts thereof, designated and adopted by the department as and for a state or state and f ederal aid highway

in the state’s system of highwa ys. (b) No county a

ffected by such highway s will be liable therefor, nor shall any county pay or enter into an ag

reemen t to pay any part of s uch costs
. T.C.A. § 20 -13-102( a) provi des as fo llows:

Actions against state prohibited. -- (a) N o court in the state shall have any power, j urisdicti on, or au thority to enter tain any suit aga inst the state, or against any

office r of the s tateacting by

authority of the state, with a view to reach the state, its treasury , funds , or pr op er ty, and all such suits shall be dismissed as to the state or such officers, on motion, plea, or demurrer of the law office r of the state, o r counsel employed for the

state.

It has long been the

law in thisstate that the state cannot be subject to litigation by individua ls unless the words of the act are so plain, clear a nd unmistakable as to leave no doubtof the legislative intent that it should be done. Quinton v. B oard of Cla ims , 54 S.W.2d 953 (Tenn. 1932). The State

is immune f

rom suit in a

state court unles s the legislature specific ally

providesto the contrary . Shell v. State , 893 S.W.2d 416, 420 (Tenn. 1995). In Phillips v. Marion County , 59 S.W.2d 507 (Tenn. 1933), suit was brought against the county to recover damages for la nd taken for the construc tio n of a state highway . Counterpart summons was issued against the State of Tennessee, Department of Highway s and Public Works. In holding that the demur

rer filed on beha

lf of the state should have been sustained, the court said:

Public Acts 1931, chapter 57, (now T.C.A. § 54-5-111) 2 in so far as it was made to ap

ply to rights of way

taken or condemned prior to its e nactment, was designed and intended to relieve the several counties of burde

ns th eret ofore cast upon them by law, as we have heretoforeheld, but

it contains no provision authorizing enforcement of the assumed liability by

suit against the state or its officers. The statute and rule cited ab ove clea

rly forbid the courts from assuming jurisdiction of such a suit, in the a bsen ce of statu tory auth ority . We think theref ore that we must hol d that the

enforc eme nt of the act of 1931 was left by the L

egislature to the discretion of the commissioner of highwa ys a nd public w orks. His c omplianc e with the terms of

the act may be enfor ced by mandamus , when the

right of the claimant is clear and the facts are

undisputed or not subject to dispute, so that an exercise of discretion is not involved. Peerless Construction Co. v. Bass , 158 Tenn. 518, 14 S.W.(2d) 732.Phillips , 59 S.W.2d at 509.

The question before the court in Brooksbank v. Leech , 332 S.W .2d 210 (Tenn. 1959),
was whether

a landow ner may

maintain a

suit against the state highway

commissioner for the taking of land for the construction of a limited access highway . The court noted that by the enactment

of § 54-511 (now T.C.A. § 54-5-111) the state assumed the b urden for the damage sustained by one whose property is taken f

or state highway

purposes. The court cited Phillips v. Marion County for the proposition that, under this statute, the county was liable to the la ndowner and not

the state, that is, the state was not directly liable to the landowne r but the landowner’s right of action wa s again st the county in which the land lay . In noting that each of the code sectio ns dealing with eminent domain must be read in parimateria , the cour t held tha t there w as no direct permis sive rig ht for suit s against the state.

In McLain v. State of Tennessee and Sullivan County , 442 S.W.2d 637, 640 (Tenn. App. 1968), this Court said:

To enable the property

owner t o rec over damages for land taken by the

state for highwa y pu rposes ou r Supreme

Court has held, since the sta

te can not be

sued, the re exists a

right of action a gainst the county in a reve

rse condemnation proceed ing. Otherwise there would be a ri ght witho ut a reme dy a

nd a taking withou

t just compensation in violation of the constitution. Phillips v. Marion County , 166 Tenn. 83, 59 S.W.2d 50 7; Baker v. Ro se , 165 Tenn. 543, 56 S.W.2d 732 ; Brooksbank v. Leech , 206 Tenn. 176, 182, 332 S.W.2d 210.

In another inverse condemnation action, Jones v. Cocke County , 420 S.W.2d 587, 590 (Tenn. A

pp. 1967) , this Court

noted tha t the state is not amenabl e to a suit by a landowne

r in an actio n such as t

his.
Appellan ts further rely

upon language in Cox v. State , 399 S.W.2d 776 (Tenn. 1965) which states that, if in fact the game and fish commission took land by condemnation or by

purchas e from one whose

title was bad, then the sole remedy of the owner of the property is an action at law for just compensation pursuant to T.C.A. § 23-1423 (now 29-16-123). However, the holding in that
case was a sustaining of the state’s demurrer on the basis that jurisdiction to try condemnation andrevers e condemnation suits is conferred upon thecircuit courts, and not upon chancery court where the case was instituted.

Suit may not be bro

ught ag ainst a g overnme

ntal entit y e xcept to the extent that the governmentalentity has consented to be sued. The doctrine of

sovereign immunity ha s been a part of the law of this state for more than a century
. Lucius v. Ci ty of Memphis , 925 S.W.2d 522, 525 (Tenn. 1996). I

t is p resume d that stat

utes are not repe aled by

implicatio n. The le gislatu re is presumed to have knowledge of the state of the law onthe subje ct under consider ation at th e time it enacts legislation. Jenkins v. Loudon County , 736 S.W.2d 603, 608 (Tenn. 1 987); Equitable Life Assurance Co. v. Odle , 547 S.W.2d 939, 941 (Tenn. 1977). Reading the sect ions of the eminent domain statutes in pari materia , and reviewing the holdings heretof ore set forth, we conclude that the legislature has not specifically alloweda landowner

in an inve rse cond emnation action to file suit agains tthe State of

Tennessee. It re sults that the judgment of the trial court is affirmed. Costs of this caus e are ta

xed to the a

ppellant
.

____________________________________ FAR MER , J.

______________________________ HIG HERS, J. (Conc

urs)

______________________________ INMA N, Sr. J. (Con

curs)