The University of Tennessee, Knoxville

Tennessee County Municipal Advisory Service

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Narrow vs. Broad View

Reference Number: MTAS-1289
Tennessee Code Annotated
Reviewed Date: April 11, 2016
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Various decisions by the courts on whether a proposed use is a public use have been categorized into two groups: (1) cases in which the courts used a narrow view of the scope of public uses, and (2) cases in which courts used a broad view of the scope of public uses. [14] Courts using the narrow view require that the public must be entitled as of right to directly use or enjoy the property taken. [15] Under the broad view, the condemnation of the property need be only for the public benefit or common good. [16] Under either view, it is not essential that the entire community directly enjoy or participate in the proposed use for the court to find a public use. [17] Thus, the extension of utility service to serve a single customer who has the right to service from the utility may constitute a public use that justifies the condemnation of easements necessary to construct the utility line. [18]

Under the federal Constitution’s public use requirement, a public entity may take private property for transfer to another private party for economic development. [18A] Since Tennessee does not have statutes authorizing this except for blight removal and industrial development, however, it is unlikely that the state constitution’s public use clause would be interpreted to embrace Kelo takings. Further, the General Assembly passed legislation in response to the Kelo case, generally codified in T.C.A. §§ 29-17-101 et seq., that attempts to ensure that there will be no Kelo takings in Tennessee.


Notes:
[14] Sackman and Rohan, supra, at § 7.02.

[15] Alfred Phosphate Co. v. Duck River Phosphate Co., supra; Memphis Freight Co. v. Mayor & Aldermen of Memphis, 44 Tenn. 419 (1867).

[16] City of Knoxville v. Heth, supra; Knoxville Housing Authority v. City of Knoxville, supra; Knoxville's Community Development Corp. v. Wright, 600 S.W. 2d 745 (Tenn. Ct. App. 1980).

[17] Webb v. Knox County Transmission Co., 143 Tenn. 423, 225 S.W.1046 (1920); Middle Tennessee Electric Membership Corp. v. Batey, Docket No. 89-233-II (Tenn. Ct. App. M.S. January 31, 1990).

[18] Middle Tennessee Electric Membership Corp. v. Batey, supra.18A Kelo v. City of New London, Conn., 125 S. Ct. 2655 (2005).

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