# FILED
March 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON THE TOWN OF COLLIERVILLE, ) TENNESSEE, SCHILLING, INC., ) JANE PORTER FEILD, and ) JOEL H. PORTER, ) ) Plaintiffs/Appellees, ) Shelby Circu it Nos. 84436 & 85824 ) VS. ) Appeal No . 02A01-9706-CV- 00134 ) NOR FOL K SO UTH ERN RAIL WAY ) COMPANY, ) ) Defendant/Appellant. ) APPEAL FROM

THE CIRCUI T COURT OF SH ELBY COUN TY AT MEMPHIS, TENNESSEE THE HONORABLE JOHN R. M cCARROLL, JUDGE
RALPH T. GIBSON EVERETT B. GIBSON LAW FIRM Memphis, Tennessee Attorney for Appellant HOMER B. BRANAN, III BRIAN L. KUHN HAROLD W. FO NVILLE, II FARRIS, MATTHEWS, GILMA N, BRANA N & HELLEN , P.L.C. Memphis, Tennessee Attorneys for Appellee Tow n of Collierville, Tennes see JOHN McQUISTON, II EVANS & PETREE Memphis, Tennessee Attorney for Appellee Schilling, Inc. C. THOMAS C

ATES BURCH, PORTER & JOHNSON, PLLC Memphis, Tennessee Attorney for Appellees Jane Porter Feild and Joel H. Porter

REVERSED AND

REMANDED

ALAN E. HIGHERS, J. CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J.1 The Town actually filedthree such cond em natio n pet itions ; how ever , this a ppe al invo lves o nly two of the peti

tions.
2 By statute,the Town of Coll iervi lle and other mu nicipaliti es are “authorized and em powered to acquire by the exer cise of the power o f emin ent dom ain, . . . such righ t-of-way, land , mate rial, easem ents and rights as may be deemed necessary, suitable or desirabl e for the const ruction, reconstruct ion, maintenance, repair, drainage or protection of any stre et, road, highway, freeway or parkway.” T.C.A. § 29-17-8 01(a)(1) ( Supp. 1981).
3 As pertin ent, sec tion 29-17 -803 pro vides tha t: After the expir

ation o f five ( 5) days from the dat e of the gi ving of [notice of the fi ling of

a condemna tion p etiti on] if the right to take is not questioned, t he condemner shall have the righ t to take possession of the property or pro perty rights s ought to b e cond emn ed, and if n ecess ary to place such condemner in possession thereof, t he court shal l issue a writ of possession to the sheri ff of the cou nty to

put the cond em ner in possession. T.C.A. § 29-17-803(c) (198 0). 2 Defendant Norfolk Southern Railw ay Company ap peals the trial court’s orde rs of possession entered in favor of Plaintiff/Appellee T own of Collierville in two eminent domain
cases. In entering its order s of possession, the trial court ruled that, as a matter of law, the Town of Collierville had the right to condemn easements across Norfolk Southern’s railroad track for the purpose of constructing two g rade crossings and that N orfolk Southern was not entitled to an evidentiar y hearing on the

right-to-take issu e. For the reasons hereinafter stated, we reverse the tr ial cour t’s order s of possession and remand for further proceedings.

In January 1997, the Town of Collierville fil ed two petitions for condemnation 1 against Norfolk Southern and other parties in

which the Town sought to condemn temporary and permanent easements across Norfolk Southern’s rail road track within the Town of Collierville. 2 The Town later filed motion s for issuance of immediate writs of possession pursuant to Tennessee Code Annotated section 29-17-803 (1980). 3 In support of its motions, the Town filed the affidavit of the Town’s cit yadministrator, James Lew ellen, which indica ted that the grade crossings were necessary to extend two of the Town’s st reets, Bray Station Road and Shea R oad, across Norfolk Southern’ s railroad track

. Lewellen’s affidavit further averred that these crossings were necessa ry for the Town’s futu re de velopment and, specifically, for access to a planned hospital , fire station, and public school.3

Norfolk Southern responded to the motions by filing a written objection in which it argued, inter alia , that the proposed grade crossings were unnecessary, redundant of other nearby crossings, and danger

ous to the public. Norfolk Southern’s objecti on further argued that placing the “redundant and ha zardousgrade crossings over [its] right of way [would] materially interfere with [its] use of [the] right of way.” Norfolk Southern requested the trial court to delay a hearing on th e motions until it could compl ete discovery. In s upport of its written objection, Norfolk Southern fil ed the affidavit and report of a licensed professional engine er which addr essed som e of Norf olk South ern’s saf ety conce rns with the Town ’ s locations of the proposed grade crossings.

The trial court condu cted a hearing on the Town’s motions at which the court considered the parties’ pleadings and affidavits. At the hearing’s conclusion, the trial court entered orders granting the writs of posse ssion in wh ich the co urt ruled that (1) th e Town had the right to condemn the proper ty in question; (2) the takings were for a proper public use; (3) the takings did not destroy or render extremely difficult the u se of the land for railroad purposes; and (4) the advisability of the takings was not an issue for the court. The trial court certified i ts orders granting the writs of possession a s final judgments pursuantto rule 54.02 of the Tennessee Rules of Civil Procedure. The trial court also entered an order consolidati ng the cases for purposes of tri al and appeal.

As an initial matter, we find it necessary to ex amine t he “avenue” by which this appeal is being pursued before this court. See, e .g. , Ridley v. Ridl ey , No. 03A01-9708-GS-00350, 1998 WL 8449, at *1 (Tenn. App. Jan. 13, 1998). Having done so, we conclude that

the trial court’s orders are not reviewable under rule 54.02, despite the trial court’s cer

tification to thateffect, because the orders do not dispose o f an entire claim or party as req uired by that rule.

Rule 54.02 provides that4 when more than one claim for reli ef is pre sent in an action, whether as a claim, counterclaim, cross-claim, or thir d par ty claim, or when multiple parties are inv olved, the court, whether at law or in equity, may direc

t the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for t he entry of judgment. . . . T.R.C.P. 54.02. In construing this provision, our supre me court has held that “[a]n or der made fin al p ursuant to [rule] 54.02 must be di spositive of an entire cl aim or party.” BayberryAssocs. v. Jones , 783 S.W.2d 553, 558 (Te nn. 1990). In doing so, the court noted that rule 54.02 certification by trial courts is improper unless the order certified could properlybe viewed as a final j udgment as to at least one clai m or party in the law suit. Id

. at 557 n.2.

As previo usly indicated, the tri al court’s orders deter mined only the issue of the Town’s right to immediate possession of the easements over Norfo lk Southern’s railroad tracks. The orders of possess ion di d not dispose of the Town’s condemnati on actions because the orders did not purport to determine all of the issues before the trial court relating to the condemnation claims, most notably the i ssue of any damages due Norfolk Southern. Inasmuch as the trial court ’s orders did not dispose of “an entire claim or party,”
we conclude that the orders are not reviewable under rule 54.02. BayberryAssocs. , 783 S.W.2d at 558.

Ou rconclusio n that the subject orders are not reviewable under rule 54.02 is supported by this court’s decision in Alcoa Development & Housi ng Authority v. Monday , 1991 WL 12291 (Tenn. App. Feb. 7, 1991). In the Alcoa case, the trial court, pu rsuant to rule 54.02, attempted to certify as fina l an order of possession w hi ch determine d the Housing Authority’s rig ht to possession of the subject pr operty but which did not dispose of all of the issues between the parti es. Id ., at *1. Judge McMurray, writing for the eastern section of this court, concluded that the order was not reviewable under rule 54.02. Id

. He explained:5 This is an appeal from an o rder of possession in an em in en t d om ai n cas e. We first note that the order of the trial court disposes of only a part of the i ssues joined between the partie s. The trial judge, in his order, attempted to make the order a final appealable order pursuant to R ule 54.02 of the Tennessee Rules ofCivil Procedure. He specifically stated in his order that “the court finds and determines that there is no just reason for

delay and directs that this is a final order as to the issues joined in this or der.” We are of the opinion that the circumstances

of this case do not fall within the contemplation of Rule 54.02 of the Tennessee Rul es of Civil Procedure but would be more properly addressed as an interlocutory appeal pursuantto Rule 9 of the Tenness ee Rules of Appellate Procedure. Alcoa , 1991 WL 12291, at *1; see also Crane v. Sullivan , No. 01A01-9207-CH-00287, 1993 WL 1 515 4, at **1-2 (Tenn. App. Jan. 27, 1993) (concluding that trial court improvidently certified order as final jud gment pursuant to rule 54.02 where order granted injuncti ve r elief but reserved ruling on other matters contained in plea dings, including determination of boundary line and award of dama ges).
Although the Alcoacourt concluded that the order of possession was not reviewable pursuantto rule 54.02, the court found the case suitable for rule 9 application and, thus, elected to review the case as an interlocutory appeal

. Alcoa , 1 99 1 WL 1 2291, at *1; T.R.A.P. 9. In doin g so, the co urt waived a ny r eq uirements of rule 9 with w hich the appellanthad not complied. Alcoa , 1991 WL 12291, at *1; see T.R.A.P. 2 (providing that, with certain exceptions , this c ourt may, “[f]or good caus e, including the interes t of expediting decision upon any matter, .. . suspend the requirements or provisions of any of these rules in a particul ar case on motion of a party or on [the court’s] motion and may order proceedings in accordanc e with its discretion”). In the i nterest ofjudicial e conomy, we similarly elect t

o treat th e subje ct appeal as an interlocutor y appeal by permissi on pursuantto rule 9. See also Munke v. Munke , 882 S.W.2d 803, 805 (Te nn. App. 1994); B.L. Hodge Co. v. Rox co, Ltd. , No. 03A01-97 04-CH-00144, 1997 WL 644960, at *1 n.3 (Tenn. App. Oct. 16, 1997); T.R.A.P.9.
Having elected to review this appeal under rule 9, we now

turn to the merits of the single issue pre sent ed in this case, that of wheth er Norfolk Southern was entitled to an evidentiaryhearing on the Town’s r ight to take the

property in questio n. The parties agree6

that the standard regarding the T own’s right

of condemnation is set forth in City of Mem phis v. Southern Railw ay Co. , 67 S.W.2d 552 (Tenn.1934), whe rein our su preme court stated that: The right to establish a hi ghway across a railroad is

quite commonly held to be conferr ed on a mu nicipali ty by a general grant of power to lay out, open, and extend streets and highway s and to conde mn land for that object, provided such a taking will n ot destro y t he use of the land for railroad purposes. An incidental interference with railroad use will not defeat this right of the city . If, however, the project ion or extension of the hi ghway across the railro ad prope rty will destroy or render very

difficult its use by

the railroad company , the taking will not b

e permitted except up on specif ic legislat ive authority. . . .

. . . . “Where property has been legal ly conde mne d or acquired by purchase for a public use, and has been or is about to be appropriated for su ch use, it cannot be taken for another public use which will totally destroy or materially impair or interfere with the form er use , unless the intention of the Legislature that it should be so taken has been manifested in express terms or by

necessary implicati on.” City of Memphis , 67 S.W.2d at 553 (emphases add ed) (quoting Memphis State Line R.R. Co. v. Forest Hill

Cemetery Co. , 94 S.W. 69, 71 (Tenn . 1906)).

The foregoing standard permits the Town of Colliervi lle to condemn the easements
across NorfolkSouthern’s right-of-w ayunless such condemnation will destroy, render very difficult, or mater

ially impair or inte rfere with Nor

folk Southern’s prior u se of the right-ofway. City of Memphis , 67 S.W.2d at 553; accord State of Geo rgia v. City of Chattan ooga , 4 T enn. A pp. 674, 680-81 (1927) (“[U] nder the well-settled law of this State, the city has the power to condemn an easement for street purposes across property already devoted to a public use, provided said use for street purposes will not materially impair or interfere with the public use to which the prop erty is already being put.”). Accordingly, we must examine the objections raised by Norfolk Southern in its response to the Town’s motions forissuance of

immediate writs of possess ion to determine if Norfolk Southern h as raised any justiciable iss ues relative to this s tandard.7

In opposing the Town’s motions , Nor f olk Southern contended that the Town’s condemnation of the easements for use as grade crossings over Norfolk Southern’s rightof-way would materially interfere w ith Norfolk Southern’s use of the right-of-way. In support of this objection, Norfolk Southern presented th e affidavit and report of G eorge L. Reed,
a licensed pr

o fessional en gineer specializing in traffic and t ransportation engineering. Reed’s report stated that the dista nc e between the railroad tr ack and Poplar Avenue at each of the proposed grade crossings w as less than fifty feet, andthat this distance was inadequate fo r proper v ehicle storage or f or development of a safe railro ad crossing. Specifically, Reed’s r

eport explained that:

. . . . The Norfolk Southern track parallels Poplar Avenue, and formost of the site distance along the site frontage, is loca ted immediately adjacent (south) of the roadway. This pr

esents a very difficult visual recog nition problem for motorists t raveling along Poplar who may

not be aware of, or may not see the rail crossings. Even worse, these motorists may not see a train or maynot be able to effectively ju dge its sp eed if it is approachin g fro m behind, particularly if the motorist and the train are traveling at nearly the same speed. The motorist may not be aware th ere is a gr ade crossin g imm ediat ely south of Poplar and may suddenly come upon the crossin g, or vehicles stopped for the crossing. .

. . Th e short distance between the track and Poplar Aven u e presents another hazard, beca use there is insufficient distance at the proposed Shea and Bray Station Roads toproperly store stopped vehicles between the track and Poplar. . . . This is a p ar ticular

problem for long vehicles, including large trucks, transit buses and school buses, who may not be able to clear the track before being trapped or r equired to stop at Poplar Avenue. T he importance of this point wa s underlined by the 1995 Fox River Gr

ove, Illinois school

bus crash.
Although case law in t his area a ppears to be somewh at sparse , we conclude that the objection raised by Norfolk Southern presents a justiciable issue concerning the To wn’s right to take whi ch the tri al court sh ould have determined at an evidentiar y hearing prior to issuing the writs

of possession. Other jurisdictions have recognized a similar standard for determining a municipality’s ri ght to cond emn an easement over railroad property previouslydedicated to public use. In Florida East Coast Rail way Co. v. Broward C

ounty , 421 So. 2d 681 (Fla. Dist. Ct. App. 1982), the Dis trict Co urt of Appeal of Florida, in describing what it

called the “traditional

prior use doctrine,” ex plained:8 Under [the traditional prior use] doctrine, property dev oted to a publ ic use cannot be taken and appropr iated to another or differen t public use unless the author ity to do so has bee n e xpressly

given by the legislature or may be necessari l y implied. Thu s , the power of condemnation may n ot be exercised where t he p roposed use will destr oy an existing public us e in the absence of specific legisl ative authority. . .

. However, when a taking will not ma terially impair or interfere with or is not inconsistent w ith the e xisting use, and the proposed use is not detrimental to th e public , then a court possesse s authori ty to order a taking of the prope rty. Florida East Coast , 421 So. 2d at 683 (emphasis added).

In Georgia So uthern & Florida Railway Co. v. City of Warner Robins , 130 S.E.2d 151 (Ga. Ct. App. 1963), the Co urt of Appeals of Georgia stated that:

“If the conditions

are such that they may be rea sonably made to consist, there is no suc h encroachment upon theprior public use as even appreciably to impair, much les s ext inguish, it; an d therefore, even though some sl ight inconvenience may result to the prior occupant, there is no reason why a s

econd public use, when granted ev en in general terms, may not be held to confer upon thepu blic authorities the right in such manner to exercise it. A different result follows, however, when the enjoyment of the second use in volv es the practical extinguishment

of th e f ormer, or renders its exercise so extremelyi nconve nient and hazardous as practically to destroy its value . In such a case the rig ht to enjoy the second u s e must rest upon express legislative authori ty, and will not be implied. The exerci se of the second use, under such circumstances, would amount to a forfeiture of the first.” Ge orgia Southern , 130 S.E.2d at 153-54 (empha sis added) (quotin g City Cou ncil o f Augusta v. Georgia R .R. & Banking Co. , 26 S.E. 499, 500 (Ga. 1896)).

We recognize that the standard set forth by the Georgia court is s tricter than the standards applied in Tennessee and Florida. The Georgia court required a showing that the municipality’s use of the property would eithe r practically extinguish the railroad’ s prior use, or rende r its e xercise so extremel y inconvenient and haz ardous as practically

to destroy its value. Georgia Southern , 130 S.E.2d at 153. In contrast, the Tennessee and Floridastandards only requi re a showing that the municipality’s us

e of the property

would materially impair or i nterfer e wi th the r ailroad’s prior use of it s right-of-way. City of Memphis , 67 S.W.2d at 553; Florida East Coast , 521 So. 2d at 683.4 W e recognize that similar sa fety concerns were rej ected by t he court i n Mobile & Ohio Railroad Co. v.

Mayor of Union City , 194 S.W. 572 (Te nn. 1 917 ). In tha t cas e, ho weve r, the p rior us e doc trine d id not apply because the legi slature hadenac ted s pec ific legisl ation confe rring upon Uni on City the authori ty to condemn the railroad pro perty soug ht to be ac quired the rein. Id . at 573; see also Southern Ry. Co. v. Cit y ofMem phis , 148 S.W . 662, 664 (Tenn. 1912) (whe rein legislature had enacted speci fic leg islat ion conferring upon City of Mem phis authority to appropriate rail road property for park or parkway purpos es).

5 In remanding for an evi dentiary hearing, we reject t he argument that Ten n essee Code Annotated section 29-1 7-80 8 pre clud es N orfo lk Southern from li tigati ng any issue exce pt the amount of compensati on to be paid for the taking.Section 29-17-808 provi des that “[ t]he only i ssue or questi on that shal l be tri ed upon exception shall be the amount of compensation to b e paid for the prop erty or prop erty right s taken.”

T.C.A. § 29- 17-808 (1980). We do not construe this statutory provisi on so as to precl ude Norfolk Souther n from lit igati ng the Town’s ri ght to take. Rather, se ction 29-17 -80 8 app li es to the si tuatio n described i n section 29-17-805, which entitles t he property owner to a jury tri al if the owner is not sati sfied with the amount deposited by the condemner wi th the cl erk of the court . T.C.A. § 29- 17-805 (1980). We note that the language of section 29-17-8 03 imp licitly, if not explicitly, entitles Norf olk Sou thern to question the Town’s ri ght to take. See T.C.A. § 29-17- 803(c) (1980) ( providi ng that condemner shal l be entitled to writ of possession “if the right to t

ake is not questioned”). 9 Nevertheless, we consider the Florida and Georgia courts’ treatments of this subject to be sign ifica nt for at least two reasons . First, the Florida and Georgia courts’ test s indicate that, when courts are examining the deleterious effects of the mu nicipality’s use of the property upon the railroad’s prior use, the courts

may consider the detriment to the public and the hazards created by the municipality’s l ater use. Additionally, the Georgia court indicated that, as a general rule, the railroad has the rig ht to present evidence on this issue. In Georgia Southern , the court held that

where a condemnor, under the doctrine of implied rather than express authority, seeks to take the property of another which previouslyhas been dedicated to a public us e, the condemnee as a matter of law has the rig ht to offer evidence to show that the taking would practically extinguish the former us e or render its exer cise s o extremely inconv enient and hazardous as practically to destr

oy its value. Georgia Southern , 130 S.E.2d at 154.

In light of these authorities , we hold that the safety c oncerns raised in Norfol k Southern’s objection to the Town’s motions for issuance of immediate writ s of possession
were sufficient to entitle Norfolk Southern to an evidentiary hearing on the issue of whether the Town’s use of the p ro perty will materially impair or interfere with Norfolk Southern’s railroad operations. 4 Accordingly, we re v erse the trial court’s orders of possession and remand for the trial court to c onduct an evidentiary h earing on this issue. 5

In reversing the tri al court’s orders, w e do not mean to sugg est that any proven safety hazard will res ult in a de nia l of the Town’s condemnation acti ons on remand. By10

theirvery nature, at-g rade railroad crossings create safety risks for the public and for the railroad companies which use them. See Florida E. Coast Ry. Co. v. Martin County , 171 So. 2d 873, 881-82 (Fla.), cert. den ied , 382 U.S. 834 (1965); Departm ent of T ransp. v. Overton , 433 S.E.2d 471, 474 (N.C. Ct. App. 1993), review dismissed , 444 S

. E.2d 448 (N.C. 1994). Rather, in order to successfully defend agains t the Town’s condemnation actions, Norfolk Southern must prove that the proposed grade cr oss ings will result in conditionswhich are so hazardous that they materially impair o r inter fere with Norfolk Souther n’s prior u se of the right-of -way.

The judgmentsof the trial court are hereby reversed, andthis cause is remanded forfurther proceedings consi stent with this opinio n. Costs of this appe al are taxed to Appelle es, for wh ich execut ion may iss ue if nec essary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.