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Landowners along these corridors may feel beleaguered as additional utilities are installed across their properties. Whether there are multiple utilities or just one utility, landowners thoughts usually turn eventually to two issues: Can I somehow stop this from happening? If not, can I make the condemnor pay dearly for this imposition? 

EFFORTS TO STOP PIPELINES OR OTHER UTILITY PROJECTS Since utility companies usually have defensible reasons for new projects (e.g., to comply with federal regulations or extend services to meet demand), it is usually an uphill struggle to stop or divert such projects. Proving that a pipeline or other utility project is arbitrary or capricious can be nearly impossible. There is often a certain degree of arbitrariness with respect to the route of a utility, but proving capriciousness is another question. Nevertheless, landowners may challenge the right to take on a number of bases. 

Necessity of the Project? 

Landowners frequently question the necessity of utility projects through their property. In City of Memphis v. Tandy J. Gilliland Family, LLC, 391 S.W. 3d 60 (Tenn. App. 2012), the landowner in a road widening case pointed out that when he negotiated with the State of Tennessee regarding the widening of the roadway, the State acquired sufficient property so that the Memphis Light, Gas, and Water Division could relocate their power lines within the expanded right of way. The power company, however, did not wish to utilize the land acquired by the State and refused the State’s offer to relocate power poles within the new right of way. Instead, Memphis filed suit to condemn an additional easement outside the State’s right of way for the placement of its power poles. The landowner argued that this was totally unnecessary. The trial court agreed. 

The Tennessee Court of Appeals overturned this ruling, pointing out that the trial court improperly substituted its own judgment of necessity for that reserved to the legislative branch, thus exceeding its authority. Tennessee law provides that landowners cannot contest questions such as the utility of an improvement, the choice of route, and the necessity for taking, because these are legislative questions which the court cannot review. Tennessee’s Supreme Court refused to review this case. 

Timing? 

Sometimes, condemning authorities get a bit ahead of themselves and try to condemn property long before it is truly needed. They fear that improvements will be placed upon property that is perfect for their future plans. Taking property too early can be arbitrary and capricious, but there is no established time period that will be uniformly applied here.

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