### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June, 2000 Session

FIRST UTILITY DISTRICT OF KNOX COUNTY, TENNESSEE v.

ELEANOR JO JARNIGAN-BOD DEN
Appeal from the Circuit Court for Knox County No. 2-26-99 Harold Wimberly, Jr., Judge

FILE JULY 19, 2000

No. E1999-01674-COA-R3-CV

The property owner objected to service of process and asserted due pro

cess violations relating to a utility district easement condemnation. Service of process by publication was proper notice to the non-resident

Cayman Islands resident, there was no showing that the con dem nation for public purpose was not necessary, and there wasno right for the pr operty owner to demand a jury of view to determine the proper easement for a water line. Judgment of the Trial Court is affirmed and the case remanded for determination of the compensation due the property owner for the taking.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; and Case Remanded

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J. and H ERSCHEL P. F RANKS , J. joined.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellant, Eleanor Jo Jarnigan-Bodden.

John A. Lucas, Knoxville, Tennessee, and Nash E. Long, III, Charlotte, North Carolina, for the appellee, First Utility District of Knox County, Tennessee.

OPINION Background

In this highly-conten

tious utility easeme

nt condemnation pr

oceeding, even t

he basic facts of the case are in dispute and argued o n appeal by the par ties. For the sake o

f clarity, only1 Plaintiff avers that the public ation order result ed from an Affidavi

t of the Nece ssity of

Service Upon Defendant

by Publicat

ion fil ed with the

Trial Court

July 12, 1999,

but no such filing appears i n the record of the Trial Court. 

### -2- those facts and proce

dural actions re

levant to the issue

s on appeal are p

resented here.

First Utility District of Knox County, Tenne

ssee (“Plaintiff

”) is a public

municipal corpor

ation that operat

es a water supply and waste w

ater treatment s

y stem in Knox Cou nty. As part of an expansion of the utility system , P laintiff’s board identified routes

for water lines a

nd related faci

lities, along with temp orary construction easements and permanent easements necessary to effectuate this ser vic e expansion p l an. The expansio n plan, and relate

d easements, was

approved by the r

equisite regulatory authorities. One parcel with frontage on Keller Bend Road in Knox County affected by the expansion plan is owned by Eleanor Jo Jarnigan-Bodden (“Defendant”), a

resident and citizen of the Cayman Islands. App arently, Defen dant, as was her r

ight, rejected Pla

intiff’s efforts

to negotiate acquisition of a ten-foot easement along the edge of Defendant’s Keller Bend Road p arcel, leading to Plaintiff’s Complaint for Condemnation filed January 14, 1999.

The Complaint detai ls the specific need for the easement sought, describing the property in detail andattaching drawings from an engineering survey performed as part of the utility expansion plan. Plaintiff ascribed a value of $951.60 to the right of easement sought, based upon the tax valu ation o f the parcel. On January 18, 1999, process was served at the property at issue upon Joe Jarnigan, an uncle of Defendant who rents the property and apparently resides thereon. On February 18, 1999, Defendant filed a document styled, “Special Appearance and Objection to Right to Take Based on Lack of Pro per Service and Notice as Well as Lack of Necessity” (hereinafter , “Objection”). In the Objection, Defendant denied jurisdiction of the Trial Court based upon failure to execute service

on Defendant. Defendant admitted receiving a copy of the Complaint, but averred that she did not receive notice of the hearing date adequate to arrange an appearance, and

asked the Tria l Court to forestall condemnation until a hearing date Defendant could “. . . be a vailable t o participate

in her own defense . . ..” In addition to this objection to jurisdiction, Defendant argued that the law requires a jury of view be empaneled to d etermine the appropriate property for condemnation, and asserted that the taking at issue was

not necessary a

nd should not be allowed by the Trial Court. Although not specifically objecting to the $951.60 valuation s tate d by Plaintiff, Defendant

averred that the

easement at issue

would “have a significant negative impact” on the value of Defendant’s property, requiring compensation.

Apparently

in response to De fendant’s assertion in the Objection that, due to her status as a non-resident, no tice must be given by publication, on July 13, 1999, the Trial Court ordered notice of the condemnation action “. . . be published, for four (4) consecutive w eek s, in a newspaper

of general circulation in Knoxville, Knox County , Tennessee.” 1 The notice was published in the Knoxville Ne ws-Sentinel on fou

r consecutive Fri

days, July 16, July 23, July 30 and August 6, 1999. On A ugust 19 , 1999, Defendan t filed a “Renewa

l of Defendant’ s Objection to Plaintiff’s Right to Take and Defenda nt’s Motion for Order Summoning Jury of View.” As suggested by the heading, this document, among other thi ngs, ar gued that a jury of view must set aside, by metes and bounds , the property to be taken, and to set

the compensation f

or the easement.2 Defendant ori ginally a pplied for

appeal under T.R.A.P. Rule 10, which t his Court denied as i

mproper, since Defendant

had an a ppeal as o f right arisin g from the condemnation to f ile under T. R.A.P. Rule 3. Defendant subsequen tly filed under T.R.A .P. Rule 3, under which this appe al proceeds. 

### -3- On August 20, 1999 Defendant filed for a continuance of the condemnation hearing set for August 27, 1999. On August 27, 1999 the Order of Possession on appeal was entered by the Trial Court and filed by the Clerk of the Trial Court. Several hours later on this same d ate, a document styled, “Motion to Dismiss or, in the Alternative, Answer to Complaint Seeking Condemnation,” was filed by Defendant. The affidavit of Def endant origi nally filed in February 1999 was once again filed September

7, 1999. Other motions, relating to efforts to stay the immediat e possessio n granted Plaintiff in the August

27 Order of Posses sion were filed by Defendant prior

to the present appe

al. 2

Discussion After removing Defendant’s averments of fact and argument from her statement of issues, the issue s posed in th is appeal are allegations of error by the Trial Court in ordering immediate

possession of the condemned easement in favor of Plaintiff, failure of Plaintiff to secure proper service of process, and e rror in ordering condemnation without impaneling a jury of view. Though couched in

argument replet

e with statements based upon factual interpretation, the issues raisedin this appeal pose questions of law. “Since we are dealing exc

lusively with conclusions of law, our standard of review on a ppe al is de novo without a presumption of correctness.” Nutt v. Champion Intern. Corp. , 980 S.W.2d 365, 367 (Tenn. 1998) ( citing Presley v. Bennett , 860 S.W.2d 857, 859 (Tenn.1993)).

Taking Defendant’s issues in their logical order, first we address the serv ice of processin this matter. It appears that Defendant’s arguments relating to service of process upon her uncle are moot as the Trial Court did not rely upon the return signed by Joe Jarnigan in asserting jurisdi ction over Defendant. Defendant’s remaining argument asserting deficiency in s ervice center s upon her view that the Order of the Trial Court that notice be published for four consecutive weeks requires a twenty-eight day period of publication , r ather than the twe nty-one day peri

od. First, simple logic dictates that publication for four consecutive weeks m eans four occurrences of publication. From the first publication to the second spans seven days; from the second publication to the third adds seven more days; and from the third publication to the fourth brings an additional seven-day period, with the result that, from the first date of weekly publication to the fourth, twentyone days transpire.

As supplemental a

uthorityon appeal as to this point, Defendant filed the case of Lowenstine v. Gillespie , 74 Tenn. 641, 6 Lea 641 (Tenn. 1881). Instead of supporting Defendant’s position, Lowenstine actually defeats her argument. In Lowenstine , most of the relevant discussion is invested in analyzing a miscalculation in an earlier opinion cited on appeal, but the Court explains that when there is a

requirem ent of publication for four consecutive weeks and the additional requirement

that the last date of publication occur seven days before the hearing date, twenty-eight days mu st elapse bet ween the date of first publication a

nd the hearing da

te. This is entirely

### -4-

supportive of Plainti ff’s legal , as well as mathematical, position on the issue, as the Lowenstine Courtadded sevendays to the twenty-one day period of the four consecutive weeks of publication to reach a total period of twenty-eight days. Here, there is no additiona l seven-day peri

od with which to contend. Therefore, the number of daysrequired for four consecutive weekly publications is twenty-one, not twenty-eight. A twenty-eight day period of consecutive w

eekly publication

with eachpublication being one week apart would result in fi ve publicat ions of the notice, not four. Defendant

cites T.C.A. § 29-1 6-105 as requirin g that notice be giv

en at least

five day s prior to hearing. There is no dispute that more than five days elapsed between the last date of publication as ordered by the Trial Court, August 6, 1999, and the date of the hearing, August 27, 1999.

Defendant

also argues that t

hirty days should ha

ve passed betwee

n the date of last publication and the date of the hearing. The record does not reflect that this issue was presented to the Trial Court, and is therefore not properly before this Court on appeal. The argument on appeal is based upon an apparent scribner’s error, in that the published notice does list a hearing date of August 27, 1999, and also

states that Defe

ndant must file

an Answer within th

irty days of the la

st date of pu blica tion, August 6, 1999. However, the Order of the Trial Court directing notice by publication does not contain any reference to a thirty-day period, a nd no reason for ignoring the stated hearing date of August 27, 1999 is proffered by Defendant

. Additionally, Defendant’s counsel, who represented Defendant in the matter since at least February 18,1999, received service of the Order of Service by Publication in July, with the Order stating that “. . . the Clerk of the Court shallenter upon the ru

le docket an Orde

r requiring the De

fendant to appea

r at a certain day therein named, being a rule day, and defend said Complaint Seeking Condemnation . . ..”

Defendant’s allegation of error concurring the jurisdiction of

the Trial Court bec

ause of the claimed failu

re of service of

processi n the manner of pu blication of the no

tice is not well taken. The actions of the Trial Court related to this issue are affirmed.

D efendant

also alleges error the Trial Court’s denial of a continuan ce from the Augus t 27, 1999 hearing date, when the continuance request was not mad e un til August 20, 1999. The publication order provided counsel for Defendant more than thirty days notice of the pendency of
a hea ring in t he matter before the date was set by the Clerk of the Trial Court, and Defendant’s argument on appeal of insufficient notice of the August 27 hearing is unsupported by the record as a whole.
Next, Defendant argu es that the allege

d fail ure o f service violate d her due proces s rights, in that Defendan

t was not allowed to

argue that Plaintif

f failed to show that the condemnation of the easement along the edge of Defendant’s parcel is necessary. As this taking is for a public use, andthe record does

not support the exis

tence of clear

and palpable abu

se of power, or f

raudulent, arbitrary or capricious action, this is not a proper question for judicial determination.

In Southern Ry. Co. v. City of Memphis , 126 Tenn. 267, 148 S .W. 662 (1912), our Supreme Court stated:
[W]here ... [a] taking is for a public use, the only remainingrestriction on the

### -5- sovereign power is to pay the fair and reasonable value of the property taken, generally denominated "just

compensation." Th

is includes an ade

quate and sufficient procedure to be

provided by the sov

ereign to ascer

tain the fair value of the property to be taken, and payment in cash, or a good and solvent bond to secure the payment, at the time the property is taken. And, like the purpose of the taking, these are judicial questions.... (citations omitted).

Butall other incide nts of the taking are political questions, for the determination of th e sovereign, and not judicial questions, for the determination of the cou rts. Selecting the property to be taken, as contradistinguished from

similar property in the same locality, determining its suitableness for

the use to which it is

proposed to put it

[sic] , as well as deciding the quantity required, are all political quest

ions, which inhere

in and constitute the chief value o

f the power to

take. This power

would be a vain andempty thing, if the owner could contest the advisab ili ty of taking his property rather than his neighbor's, or if he could interpose as a defense to the taking that other property could be found w hich would suit the p ublic purposes better, or that he, the owner, was of opinion and could prove that the public needed more or les s than the quantity proposed to be taken. The power to take would be of

smallvalue, if the thing to be taken, in its quantity, quality, and locality, could be determined by another and adverse interest.

126 Tenn. at 282-83, 148 S.W. 662. "The determination by a condemning author

ity of the necessity for the taking is not a question for resolution by the judiciary a nd, absent a clear and palpable abuse of power, or fraudulent , arbitrary or capricious action, it is conclusive upo n the courts." Duck River

Elec. Membership Corp. v. City of Manchester , 529 S.W.2d 202, 204 (Tenn.1975) (citations omitted). City of Maryville v. Edmondson , 931 S.W.2d 932, 934-935 (Tenn. Ct. App. 1996).

Defendant’s al

legation of erro

r in the actions of

the Trial Court as t

o this issue is unsuppo

rted in the law.

Defendant argues that under T.C.A. § 29-16-113, a jury of view must be impaneled to determine the locationand quantity of the easement sought by Plaintiff.

Although not specif

ically addressed in the Order of Posses sion on appe al, Plaintiff in the Complaint sought condemnation under T.C.A. § 7-82-101 et seq ., the Utility District Law of 1937. Plaintiff responds that T.C.A. § 7-82-305 authorizes a

utility district to elect between the procedures set out in Title 29, Chapter 16 and immediate possession as sought in this case. Any district has the pow

er to condemn eit

her the fee or such right, title interest, or easement in the property as the board may deem necessary for any of the purposes mentioned in this chapter, a nd such property o

r interest in such property may beso acquired whether or not the same is owned or held for public use by corpor ations,

### -6-

as sociations or persons having the power of eminent domain, or otherwise he ld o r used for public purpose

s; provided, that such prior public use will not be interfered withby this use. Such power of condemnation may be exerc ised in t he mode or method of procedure prescribed by title 29, chapter 16, or in the mode or method or procedureprescribed by any other appl icabl e statutory provisions now in force or hereafter enacted for the exercise of the power of eminent domain; provided, that where title to any property sought to be condemned is defective, it shall be passed by decreeof court. Where condemnation proceed in gs become neces sary, the court in which such proceedings are filed shall, upon application by the district and upon the posting of a bond with the clerk of the court in such amount as the court may deem commensurate

with the value of the property, order that the right of possession shall issue immediately or

as soon andupon such terms as the court, in its discretion, may deem proper and

just.
T.C.A. § 7-82-305. Plaintiff cites as “other applicable statutory provisions” Title 29 Chapter 17 of the code.
(a) Said petition shall na me as defendants

all persons who have or may have an interest in or lien upon said property or property rights, shall state the re siden ce of eachif known and if unknown that fact shall be stated, shall contain a description of the property or prop

erty rights sought to

be condemned, the civil district in which the
sameis located, a description of the pr oject to be constructed and the amount of damages to which the conde mner has determin

ed that the owner

will be entit

le d, which amount shall

be deposited with said clerk, and shall pray that the property be condemned

and decreed to the condemner. It shall not be necessar y to spe cify the interest or claim

of the several de

fendants. (b) Notice of the filing of said petition shall be given the owner of the prop erty or property rights at least five (5) days prior to the taking of any additional steps in the
case. If the owner is

a nonresident of the state or unknown, notice shall be given by publication as provided by law in similar cases in chancery. (c) After the expiration of five (5) days from the date

of the giving of sai

d notice if the right to take is not questioned, the co ndemner shall have the right to take po ssession of the property or property rights so

ught to be condemn

ed, and i f necessary to place such condemner in possession thereof, the court shall issue a writ of possession to the sheriff of the county to put the condemner in possession.
T.C.A. § 29-17-803.

Further support for Plaintiff’s argument on the issue of Defendant’s right to a jury of viewas to the size and location of a utility easement is found in a related statute.

### -7-

The only issue or question that shall be tried upon exception shall bethe amount of compensatio

n to be paid for the property or property rights taken, but in case of adverse claimants of

such compensation, the

court may requir

e the adverse c

laimants to interplead, so a

s to fully determine

the rights and inte

rests of such cla

imants.
T.C.A.§ 29-17-808.

We agree with Plaintiff’ s inter pretation, that T.C.A. § 7-82-305 sets forth the availability of alternative s to the procedures of T.C.A. § 29-16-113, and that the actions of the Trial Court are consistent with the procedure set out in T.C.A. § 29-17-803, without the need to impanel a jury of view. As previ ousl y discussed, “[s]electing the property to be taken, as contradistinguished from similarproperty in the same locality, determining its suitableness fo r the use to which it

is proposed to put it [sic], as we

ll as deciding the q

uantity required

. . .” are decisio

ns that lie most prope

rly with the condemning body. City of Maryville v. Edmondson , 931 S.W.2d at 935.

As for Defendant’s issue alleging error in the T rial C ourt’s order of i

mmediate possession, T.C.A. § 7-82-305, q uoted above, provides that “the court in which such proceedings
are filed shall, upon application by the district and upon the posting of a bond with the clerk of the court in such amount as the court may deem commensurate with the value of the property, order that the right of possession shall issue immediately or as soon and upon such terms as t he court, in its discretion, may deem proper and just.” The record does not support any abuse of discretion by the Trial Court in

granting Plaintiff the immediate possession sought for the easement in question. The judgment of the Trial Court as to these issues is affirmed.
Conclusion

The Order of theTrial Court is aff irmed, and this ca

se is remanded for determination of the compensation due Defendant for the taking, a nd for such further proceedings as may be required, if any, consistent with this Opinion. Cost s of this appeal a

re assessed to the appellant, Eleanor Jo Jarnigan-Bodden.

__________________________________________ D. MICHAEL SWINEY, JUDGE