# FILED
December 17, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE CITY OF MURFREESBORO, a ) Municipal Corporation in Rutherford ) County, State of Tennessee, ) ) Plaintiff /Appella nt, ) Rutherford Circuit Consolidated

) Case Nos. 34626 and 34629 ) vs. ) ) MARIANN M. WORTHINGTON, ) Appeal No. 01A01-9703-CV-00124 ) Defendant/Appellee ) ) CITY OF MURFREESBORO, a ) Municipal Corporation in Rutherford ) County, State of Tennessee, ) ) Plaintiff /Appella nt, )

) vs. ) ) THOMAS W. WO RTHINGTON and ) wife, Maria

nn M. Wort

hington, )

) Defend ants/Appe

llees. )
APPEAL FROM THE CI RCUIT COURT OF RUTHERFORD COUNTY AT MURFREESBORO, TENNESSEE THE HONORABLE ROB ERT E. CORLEW, II I, JUDGE
For the P laintiff /Appella nt: For the Defendants/Appellees : Thomas L. Reed, Jr. Granville S.R. Bouldin, Jr. Jerry E. Far

mer Murfreesboro, Tennessee Murfreesboro, Tennessee

REVERSED A ND REMAN DED
HOLL Y KIRBY L

IL LARD, JUDGE
CONCUR:
ALAN E. HI

GHERS, J.
DAV ID R. F ARM ER, J.OPINION

This is a condemnation case. The sole issue at tri al was the am ount of compensation the landowners should

receive. A jury returned a ver dict awarding the landowners a total of $30,500. On appeal, the appe

llant con demning a

uthority c ontends th at the tri a l court erred in allowing tax apprais als performed on the property to be introduced into evidence and that the trial court used the wrong valuation method. We reverse and re mand for a new trial. This appeal arises from two conde mnation pr oceedings filed by the City of Murfreesboro (“City”) in 1995. The City is constructing the Stones River Greenway, a linear park or “river trail” that borders t he west bank of the Stones River. The Stones River flows in a general north-sout h direction through the city of Murfreesboro. The Gree nway was de veloped by the National Parks Service as a means of linking together the various National Stones River Battlefield sites that exist throughoutMurfreesboro. The City acquired the rea r portions of properties backing up to the west bank of the Stones River, in s o me cases by voluntary sales by landowners, and in other ca ses by exercising its power

of eminent domain. The Greenway is about three miles long, with a trail surfa ce about twelve feet wide. In 1970, Thomas and Mariann Worthington purchased nearly 16 acres of land, bounded on the west by Thompson Lane, a well-traveled three-lane road, and bounded on the east by the west bank of the Stones River. A portion of this land belonged solely to Mariann Worthington; the remainder

belonged to the Worthingt ons jointly. At the time of purchase, the land was low-lying and prone to yearly flooding. The western portion of the proper ty thatfrontedThompson Lane was capable of being filled in for a depth of 350 feet. The rea r portion of the pr operty was a no-fill zone which extended

back to the centerline of the river for a distance of 200 feet. Mr. Worthington owned his own construction company. Over the course of seve ral years, he filled in the western portion of his property which fronted Thompson Lane back to the no-fill zone. This re sulted in a 10-15 foot drop off leading down to the river’s edge. The Worthingtons subdivided the land and sold all but two non-contiguou s lot s (Trac ts 7 & 10) a t a substa ntial prof it. The va

lue of the subdivide d lots, including Tracts 7 & 10, is derived from the fact that they are filled, zoned commercial, and front
on Thompson Lane. Tracts 7 and 10, which were not sold, front on Thompson Lane and extend

back to the centerline of the Stones River.2

The City condemned the rear portions of Tracts 7 and 10 in order to establish the Greenway. The City certified that the Worthingtons would receive remainder pa rcels from the condemned land in order to retain irrigation rights from the river by means of an underground pipe. The larger of the two tracts, Tract 7, is solely owned by Mariann Worthington. The total area o f Tract 7 amounted to 5.53 acres. The City condemned 2.53 acres, lea ving Mariann Worthington with 3 acres. Tract 10 is the smaller tract and is join tly owned by the Wor

thingtons. Tract 10

encompa ssed 1.7 a

cres. The City too

k 1.05 ac res, lea ving a re mainder of 0.65 a cres. Nearly all of the land condemned by the City fell within the no-fill zone. Of the 2.53 acres taken from Tra

ct 7, 0.84 acres c onsisted of land from the middle of Stones river to the riverbank, withthe remaining 1.69 acres running from the edge of the riverbank westward. Of the 1.05 ac res taken from Tract 10, 0.52 acres ran from the centerline of the river to the riverba nk, with the remaining 0.53 acres running from the riverbank westward. The record suggests that there we re very limited uses for the land taken by the City. Thomas Worthington testified that the land taken floods regular ly to a depth of 8-10 feet. Furthermore, the taken prope rty had always been subject to a sewer
easeme nt. The City appraised the land taken from Tract 7 at $2,550 and the land taken from

Tract 10 at $1,050. Th

e Worthi ngtons tes tified tha t the valu e of Tra

ct 7 befo re the ta king was w orth $442,000, and after the taking the remaining land was worth $240,000. The 2.53 acres taken from Tract 7 was thus assigned the difference in value, $202,000. Using the same me thod of valuation, referred to as the “before-and-after ” method of valuation, the Worthingtons testified that the value of the land taken from Tract 10 was $131,000. The Worthingtons did not claim incidental damages or benefits to their properties. The Worthingtons’ appraiser, John Shearron, Jr., also employed the before-and- after method of valuation. He testified that the value of

the portion of Tract 7 taken by the City was $155,000, and that the value of the portion of Tract 10 taken by the City was $6 7,404. Neither the Worthingtons nor Shearron attempted to value the actu al prope

rty taken, bu

t rather arrive d at their valuation by valuing the total property before the take, and subtrac ting from that the value of the remaining property after the take.3

During cross-examinati on of the City’s appraiser, counsel for the Worthingtons informed the jury of the county tax appraisals of Tracts 7 and 10 before and after the

take. He noted that, before the take, Tract 7 was worth $160,200, after the take at $114,800, for a difference of $45,400. He also noted that Tra

ct 10 was apprais ed at $77,500 be fore th e take, and after the take at $36,600, for a difference

of $40,900. The trial court allowed these valuations into evidence, over the City’s objection. It is undisputed that the city of Murfreesboro does not employ a property tax assessor and that the Ruther

ford Coun

ty tax app

raise r a ppraises all property in the City of Murfreesboro for propert y tax purposes. The trial court permitted the Worthingtons to provide exhibits to t he jury which listed the county tax appraisal values. During their del iberations, t he jury requested the exhibits containing the tax assessment valuations. The trial court refused this request. The jury then returne d a verdi ct, setting the just compensation for the 2.53 acres taken from Tract 7 at $20,000 and the 1.05 acres taken fr om Tract 10 at $10,500. The City filed a motion for
new trial. The City argued that the trial court impr

operly allowed the jury to consider the appraisal values found in the tax assessment records of the Rutherford County assessor. The trial court denied the City’s motion for new trial. The City now appeals the decision of the trial court. On appeal, the City asserts that the trial court er red in allowing the Worthingtons to introduce into evidence the Rutherford county tax appraisals. In a ddition, the City contends that the trial court erred by allowing the Worthingtons to introduce into evidence val uations ded uced by using the before-and-after

method of valuation. We first consider the issue regard ing the use

of the county tax apprais als. Over the City’s objectio n, the tria l court allowed into evidence the Rutherford County tax apprais als of Tracts 7 and 10, both before and after the takings, and a llowed co unse l for the Worthingtons to show these documents to the jury. On appeal, the Worthingtons contend that the tax apprais als w ere nev er offe red as pr oof of va lue, but in stead we

re used t o impeach the City appraiser. The trial court’s directions to the jury were in accor dance with this. In t heir app ellate brief, th e Worthi ngtons ass ert: While conceding that

the tax valuations do not represent the fair cash market value of the prope rty, it is ne

verthel ess entir

ely appropr

iate to ca ll into question the values of the City’s appraisal witness that are twenty and fort y times less than the tax valuation, a figure known to be uniformly less than actual fair marke t value.4

In Tennessee, property tax valuations are not admissible to prove the va lue of a parcel

or any portion thereof. See Knoxville Housing Authority v. Bower , 308 S.W.2d 398, 401 (Tenn. 1957); West Tennesse e Power & L ight Co. v. Hughes , 15 Tenn. App. 37 (Tenn. App. 1932); Wray v. Knoxville, LaFollette & Jellico R .R. Co. , 113 Tenn. 544, 82 S.W. 471 (Tenn. 1904). However, the parties dispute whether property tax valuations may be used for impeachment purposes. Wray involved a

procee ding to condemn

a portion of two lots for railroad purposes. Wray , 15 Tenn. App. at 547. The only issue f or the jury to determine was the amount of compensation. Id. The cond

emning au

thority wa s permitte d to introduce into evidence a tax assessment record,
over the landowner’s objection. The tax assessment recor d contained a valuation of one of the lots by one of the appellant landowners. Id. at 559. It is unclear whether the tax assessment rec ord was introducedfor impeachment purposes, although the Court noted that the evidenc e did not e stablish that the signature on the record was that of the landowne r. Id. Wray states: The law does not requi

re an ow ner to value his real es tate, but merely to

describ e it for the purposes of assessment for taxation. The valuation, if made of the [property] by the [landowner ], . . . , was for a wholly different purpose from the pre sent one. This court knows judicially and as a part of the financial history of the State that land is never a ssessed f

or purpos es of tax ation at it s real cash market value, though that may be the law, but only in co mparison wi th other la nds around it, and, i f [landowner] valuedit, we would presume she placed such comparative value, instead of the re al marke

t value, u pon it. It is s aid in L ewis on Eminent Domain, section 448, that the assessment of propert y for taxation being made for other purposes, and not at the instance of either party, and not usually at the market value of the pro pe rty, is not admissible as evidenc e of valu e in conde mnation pr

oceedin gs. Id. at 559-60. The admission of the tax assessment record was dee med improper, and the judgment
was reversed. Thus, the Wray court noted that valuatio n for tax

assessme nt purpose s was “wholly differe nt” from valuation to determine fair market value, and concluded that it was not admissible. In the alternative, the Worthingtons contend that the tax assessment record s were a

dmissible
as prior inconsistent statements. Whether this is really a different purpose is deba table, sinc e th e overall purpose r

emains to d

iscredit the state ’s apprais al witness. Regardless, even though no Tenness e e case has specifically addressed this argument, the majority of states which ha ve considered

it have deemed the tax assessment records inadmissible for this purpose. See Alabama
v. Griffith , 290 So. 2d 162, 164 (Ala. 1974) (ad missi on against interest theory is minority theory which Al abama do es not fol low); Hetherington Letter Co. v. City of Cedar Rapids , 207 N .W.2 d 800, 801-803 (Iowa 1973) (tax valuation not admissible as admission a gainst co ndemnor b ecause5

purpose is to fairly distribute co sts of government, not to fix just compensation); Bergen Count y SewerAut

h ority v. Bo

rough of Litt

le Ferry , 83 A.2d 4, 9 (N.J. Super. Ct. App. Div. 1951) (tax
assessme nts inadmissa

ble as ad mission by mu

nicipalit y ); St ate Hwy. Comm’n v. Anderegg , 403 P.2d 717, 718 (Or. 1965) (“great weight of authority” holds assessments not admissible as admission against interest by con demners ); G irard Trust Co . v. City of Philadelphi

a , 93 A. 947, (Pa. 1915) ( city cann ot be held to adopt action of another independent public agency w hich sets tax
as ses sments); Wayland v. City of Sea ttle , 165 P. 113, 114 (Was h. 1917) ( tax asse ssments no t a declarationagainst in

terest by city in co ndemnati on cas es because made by different off icers performing distinct functions for different purposes). The ration ale for this view i s set fort

h in United State

s v. Certai

n Parcels o

f Land , 261 F.2d 287 (4th. Cir. 1958): It is suggested that evidence of assessed value, offe red by the landown e r, may be received as an admission against interest when t he a ssessing authority is the condemnor. *** Asi de from the general unreliability of tax assessments as an indication of market value, which ought to make them suspect in any cas e, the assessing officials are representatives of the public. The power of a tax official to bind the public is limited, and what he does for purposes of taxation, should not be binding upon the public, or prejudicial to the public interes t, when o ther public officials are engaged in the performance

of a very different

public function in an unrelated field. Though the tax official may purpo

rt to use ma

rket val ue as the criteri on of asse ssed valu e, his primary concer

n is withrelative , not absol ute, valu es, but how ever he exerci ses his judgmentfor purposes of a reasonable distribut ion of t he tax burden, his act, as an extrajudicial declar

ation, ma y not c ircumscribe the interest of the public in the difficul tprocessof deter

mining just c ompensat

ion for pr operty taken for public use.
Id. at 291 (citations omitted). But see In re Site for Memorial Ha ll , 25 N.W.2d 174 (Mich. 1946) (e vidence of assesse d value, o ffere d by lando wner, ma y be rec eived asadmission a gainst inte

rest when assessing authority is the sole cond emnor); Louisiana Hwy. Comm’n v. G iaccone , 140 So. 286 (La. 1932) (landowner allowed to u se the assessed value as the minimum below which the conde mnation price sh ould not go, when sta te, throu gh a diff

erent de partmen t, was att empting to take land for less than the assessment value.) We find the ma

jority view persua sive, and hold that a

dmi ssion of the tax assessment valuations into evidence in order to discredit the testimony of the City’s appraiser was e rror. The Worthingtons arg ue that any error in admitting the tax records into evidence wa s harmless , and does not

warrant reversal. The jury in this case he ardreferences to the tax appraisa l forms during cross-examination of the City’s appraiser. Counsel for the Worthingtons published the6

tax appraisal forms to the jury during the trial and the jurors were a llowed to take notes during the trial. The jury made a specific request dur ing their deliberations to see the exhibits containing the values of the tax assessments. In a case such as this, where the asserted values of the ta ken prop erty differed by such a significant amount, we cannot find that the error wa s harm les s. The judgment must be reve rsed and the caus e reman ded to the trial cou rt for a n ew trial
. This h olding mak es it
unnece ssary to c onsider a ny remai ning issue s on appe al. The judgment of the trial court is r everse d and the c ase rem anded fo r a new tr ial. Costs on appeal are taxed to the Appellees, for which execution may issue if necessary.

HOLLY KIRBY LILLARD, J.
CONCUR:
ALAN E. HIGHERS, J.

DAVID R. FARMER, J.