# FILED Nov. 1, 199 5 Cecil Crowson, Jr . Appellate Court Clerk STATE OF TENNESSEE, Upon ) Relation o f LL

OYD R. AD AMS, ) MURPHY W. RALSTON, and ) W.C. TALLANT, ) ) Plaintiff s/Appella nts, )

) Rutherford Chancery ) No. 92CV-820 VS. ) ) Appeal No. ) 01-A-01-9404-CH-00195 CITY OF MURFREESBORO, ) TENNESSEE, ) ) Defendant/Appellee. )

IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE APPEAL FROM THE CHANCERY COURT OF RUTHERFORD COUN TY AT MURFREESBORO, TENNESSEE HONORABLE ROB ERT E. CORLEW, II I, CHANCEL

LOR
PHIL LI P L. DAVI

DSON 2400 Crestmoor Road Suite 107 Nashville, Tennessee 37215 ATTORNEY FOR PLAI

NTIFFS/APPEL

LANTS
THOMAS L . REED, JR. City Attorney 111 West Vine Street P.O. Box 5055 Murfreesboro, Tennessee 37133-5055 ATTORNEY FOR DEFENDANT/APPEL LEE
AFFIRMED AND

REMANDED HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR: BEN H. CANTRELL , JUDGE HERSCHEL P. FRANKS, JUDGE-2-

STATE OF TENNESSEE, Upon ) Relation o f LL

OYD R. AD AMS, ) MURPHY W. RALSTON, and ) W.C. TALLANT, ) ) Plaintiff s/Appella nts, )

) Rutherford Chancery ) No. 92CV-820 VS. ) ) Appeal No. ) 01-A-01-9404-CH-00195 CITY OF MURFREESBORO, ) TENNESSEE, ) ) Defendant/Appellee. )
O P I N I O N This is a suit to invalidate an annexation ordinance of the City of Murfreesboro. The plaintiff appealed from the dismissal of his suit, although neither party questioned the adequacy of the description of the land to be annexed. On October 26, 1994, this Court filed an opinion pointing out the infirmities of the ordinance and remanded to allow such infirmities to be remedied.
On August 28, 1995, a supplemental record was received indicating the remedial measures taken to which neither party takes exception. Such measures are therefore accepted as adequ ate, and

attention will be dir

ected to the original issue

which wa s: Is the annexatio n ordinance rea sonable, taking into consideration the health, safety and welfare of the area

to be annexed and the city. SeeVolmer v. City of Memphis, Tenn. 1990, 792 S.W.2d 446. The applicable statute is T.C.A. Section 6-51-103, which reads in pertinent par t as follows: Quo warranto to contest annexation ordinance -- Appellate

review. -- (a)(1)(A) Any aggrieved owner

of property w

hich borders or lies within territory which is the subject of an annexation ordinance prior to the operative date thereof , may file a sui t in the na ture of a quo warr anto proc eeding

in accord ance wi

th this par t, §6-51- 301 and tit

le 29, cha pter 35 to contest the validity thereof on the ground that it reasonably may-3- not be deemed necessary

for the welfare of the residents and property owne

rs of the affected territory and the municipality as a whole and so constitutes an exercise of power not confer red by law. . . * * * (c) . . . Suit or suits, shall be tried on an issue to be made up there, and the question shall be whether the proposed annexation be or be not unreasonable in consideration of the health, safety

and welfare of the citizens and property owners of the territory

sought to be annexed and the citizens and property owne

rs of the municipality . . . In the annexation of territory , someone must fix the boundaries, and this power, when exercised, is legislative and will not be disturbed by the courts unless the action was arbitrary and unreasonable. State, ex rel Wood v. City of Memphis, Tenn. 1974, 510 S.W.2d 889.
The whole theory

of annexation is that it is a device by which a municipal corporation may plan for its orde

rly gr owth and development. State, ex rel Collier v. City of Pigeon Forge, Tenn. 1980, 599 S.W.2d 545.
If two municipalities seek to annex the same territory , the larger municipality has precedence. T.C.A. §6-51-110(b).
It ap pears th at the ar

ea in que stion adjo ins the cit y lim its of Murf

reesbor o and fro nts on a U.S. highway

at an interchange with an interstate hig hway under

construction.
It also appears that an a

ttempt is being made to incorporate the same area into a satellite city smaller than the City of Murfreesboro.

The Tria l Judge fi led a len gthy

memoran dum reciting the evidenc e and his f

indings.-4- The appe llant pre sents the

following

argume nts: I. The evi dence a t tri al prep onder ated aga inst the tr ial co urt's finding that the a nnexed ar ea need ed munici pal services. II . The fact that the city

has the present ability to provide service s does not p

rove tha t the ordin ance is r

easonab le especially if the

re is no proof that the services would ever be utilized. II I. The evidence

at trial clearly

preponderated against any finding that the annexation ordinance was reasonable for the health, safety , and welfare of the citizens of the area to be an ne xe d a nd th e c it y. IV. The evidence

at trial preponderated against any finding that the City o f Murfre

esboro ha d any legitima te need t o control the area to be annexed. Each of these contentions has been examined in the light of the above authorities, the record and the findings of the Trial Court which are supported by a preponderance of the evidenc e.
The judgment of the Trial Court dismissing this suit is affirmed. Costs of this appeal are taxed against the appellant. The cause is remanded to the Trial Court for any necessary further procee dings.

Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR:

_____________________________________ BEN H. CANTRELL , JUDGE

_____________________________________ HERSCHEL P. FRANKS, JUDGE