Opinion
3:21-cv-00249
05-09-2022
James S. Chase, Lane E. McCarty TVA GENERAL COUNSEL'S OFFICE Attorneys for Plaintiff.
James S. Chase, Lane E. McCarty TVA GENERAL COUNSEL'S OFFICE Attorneys for Plaintiff.
FINAL JUDGMENT AND ORDER FOR DISBURSEMENT AND RETENTION OF DEPOSITED FUNDS
The United States of America upon the relation and for the use of the Tennessee Valley Authority (“TVA”) initiated this federal condemnation action on March 23, 2021, to acquire a 0.005-acre cemetery (“McCreary Cemetery fee”) and cemetery, burial and access rights (collectively, “cemetery rights”) with respect to six cemeteries within the reservation boundary of TVA's Gallatin Fossil Plant (GAF) in Sumner County, Tennessee (“Cemetery Tracts”), and for an order authorizing TVA to disinter the remains buried on the Cemetery Tracts and to reinter said remains at a suitable reinterment location(s). On March 23, 2021, TVA filed the Complaint (Doc. 1) in which TVA identified the individuals it believed have or may claim an ownership interest in the property rights acquired as to the Cemetery Tracts. Along with the Complaint, TVA filed a Declaration of Taking (Doc. 2) with legal descriptions of the property rights taken in this action (Doc. 2-1) and a Notice of Condemnation (Doc. 3). On July 13, 2021, TVA amended the initial Complaint and Notice of Condemnation (Docs. 34, 35) to include additional three additional Defendants and to correct the names of two previously named Defendants.
There was no change or amendment to the property rights condemned and/or the legal descriptions of the Cemetery Tracts and therefore TVA did not file an amended Declaration of Taking.
On September 10, 2021, upon motion by TVA, the Court entered an Order (Doc. 45) authorizing TVA to disinter the remains buried on the Cemetery Tracts and to reinter said remains at a suitable reinterment location(s). See United States ex rel. TVA v. 0.005 Acre of Land in Sumner Cty., Tenn., No. 3:1-cv-00249, 2021 WL 4261241, at *2 (M.D. Tenn. Sept. 10, 2021) (“0.005 Acre of Land I”).
On January 12, 2022, TVA filed its Motion for Partial Summary Judgment on Issue of Compensation (Docs. 49, 50), seeking an order awarding total compensation of $40,000 for the McCreary Cemetery fee and awarding no compensation for the cemetery rights because the fair market value of the replacement cemetery rights at a suitable reinterment location(s) is equal or greater to the fair market value of the existing cemetery rights. On February 14, 2022, the Court entered a Memorandum Opinion and Order (Doc. 52) granting TVA's Motion for Partial Summary Judgment. See United States ex rel. TVA v. 0.005 Acre of Land in Sumner Cty., Tenn., No. 3:1-cv-00249, 2022 WL 446014 (M.D. Tenn. Feb. 14, 2022) (“0.005 Acre of Land II”). The Court found that $40,000 was just compensation for the McCreary Cemetery fee and that no compensation was awarded for the cemetery rights. See 0.005 Acre of Land II, 2022 WL 446014, at *3. The Court also ordered TVA to file a declaration which sets forth TVA's position as to the allocation of the compensation owed for the McCreary Cemetery fee. Id. at *4. See Fed.R.Civ.P. 71.1(j)(2) (“After a deposit, the court and attorneys must expedite the proceedings so as to distribute the deposit and to determine and pay compensation.”).
On February 22, 2022, TVA filed the Declaration of Lorie M. Hunt (Doc. 54) (“Hunt Declaration”) with TVA's position on the allocation of the compensation award for the McCreary Cemetery fee based on TVA's diligent review of deeds, other recorded instruments, and historical and genealogical research in the Wood Genealogical Report (“Wood Report”). (Id. at ¶¶ 2-4; Doc. 54-1 through Doc. 54-3.) The Hunt Declaration contains TVA's position regarding the identity of the individuals who claim or may claim an interest in the McCreary Cemetery fee. (Doc. 54 at ¶ 5.) Attachment 4 to the Hunt Declaration lists TVA's estimated fractional interest for each individual identified by TVA as holding a fractional interest for purposes of distribution of compensation. (Doc. 54-4.) Attachment 5 to the Hunt Declaration contains the mathematical apportionment of the compensation award based on the estimated fractional interest of each person. (Doc. 54-5.) The Hunt Declaration states that due to the volume of descendants initially identified in the Wood Report (Doc. 54-3) who have or may claim an interest in the McCreary Cemetery fee, all individuals noted in the Wood Report as “living” (whether related by blood or marriage and regardless of level of lineage) were named as Defendants in this action. (Doc. 54 at ¶ 5(k).) For purposes of determining fractional interest and distribution of compensation, however, Defendants who are issue (children) of descendants listed as “living” in the Wood Report were not listed in Attachment 4 to the Hunt Declaration as individuals entitled to a fractional interest (see Doc. 54-4) for purposes of distribution of the compensation award because their interest has not yet vested. (Doc. 54 at ¶ 5(k).)
No Defendant filed an objection to the Hunt Declaration or provided information contesting the same. (See Docket.)
In recognition that the remaining issues of ownership and apportionment in this case are reserved for the court's disposition, the Court issued two Orders (Docs. 53, 57) establishing the procedure for disbursement of the compensation award and directing any person claiming an interest in the McCreary Cemetery fee and desiring to seek compensation to file a written request with the Clerk of Court postmarked by April 18, 2022. The following individuals filed a Notice of Claim: Debby Derryberry (Doc. 59); Jean W. Blunkall (Doc. 60); Angela Welker Smith (Doc. 61) and Michael Baldwin (Doc. 62).
Jean W. Blunkhall is the married name of Edna Jean Womack.
Claimant Debby Derryberry claims an ownership interest in the McCreary Cemetery fee. (Doc. 59.) Attachment 4 to the Hunt Declaration identifies Ms. Derryberry as having a fractional interest in the McCreary Cemetery fee (Doc. 54-4 at PageID#1050) and Attachment 5 to the Hunt Declaration identifies the mathematical apportionment of the compensation award to Ms. Derryberry based on her estimated fractional interest (Doc. 54-5 at PageID#1052).
Claimant Jean W. Blunkall claims an ownership interest in the McCreary Cemetery fee. (Doc. 60.) Attachment 4 to the Hunt Declaration identifies Ms. Blunkall as having a fractional interest in the McCreary Cemetery fee (Doc. 54-4 at PageID#1050) and Attachment 5 to the Hunt Declaration identifies the mathematical apportionment of the compensation award to Ms. Blunkall based on her estimated fractional interest (Doc. 54-5 at PageID#1052).
Claimant Angela Welker Smith claims an ownership interest in the McCreary Cemetery fee. (Doc. 61). Ms. Welker Smith states in her notice that she is the daughter of Joseph H. Welker and the family tree graphic submitted with Ms. Welker Smith's notice indicates that Joseph H. Welker is “living.” (Id. at PageID#1097-98.) The Wood Report lists Joseph H. Welker as “living” (Doc. 54-3 at PageID#963) and the Hunt Declaration lists Joseph H. Welker as having a fractional interest to and in the McCreary Cemetery fee (Doc. 54-4 at PageID#1049).
Claimant Michael Baldwin claims an ownership interest in the McCreary Cemetery fee. (Doc. 62.) Mr. Baldwin states in his notice that he is the son of Emma Welker-Morris. (Id. at PageID#1101.) The Wood Report lists Emma Welker-Morris as “living” (Doc. 54-3 at PageID#963) and the Hunt Declaration lists Emma Welker-Morris as having a fractional interest to and in the McCreary Cemetery fee (Doc. 54-4 at PageID#1049).
“In an action involving eminent domain under federal law, the court tries all issues, including compensation, except when a party demands a jury trial within the time to answer.” U.S. ex rel. Tennessee Valley Authority v. An Easement and Right-of-Way over 0.03 Acre of Land in Oktibbeha Cty., Miss., No. 1:17-cv-00152-GHD-DAS, 2019 WL 267881, at *1 (N.D. Miss. Jan. 18, 2019) (quoting Fed.R.Civ.P. 71(h)). Accordingly, based on the information submitted in the Hunt Declaration and supporting attachments (Doc. 54, Doc. 54-1 through Doc. 54-5), the information contained in the Notice of Claims (Docs. 59, 60, 61, 62), and the applicable authority, the Court FINDS that the ownership interests of the McCreary Cemetery fee acquired by TVA in this case and the apportionment/monetary value that should be assigned and disbursed based on the ownership interests are as outlined in Attachment 1 hereto.
Attachment 1 contains a listing of the mathematical apportionment of the total compensation award to each person with an ownership interest in the McCreary Cemetery fee based on the estimated fractional interest of each such person. The list in Attachment 1 is identical to the list in Attachment 5 to the Hunt Declaration (Doc. 54-5).
Based on these findings, the Court hereby ORDERS and ADJUDGES that:
1. The total amount of compensation available for disbursement is $40,000.
2. The ownership interests of the McCreary Cemetery fee and the apportionment and allocation of the total amount of compensation available for disbursement are as set forth in Attachment 1 hereto.
3. The Clerk of this Court is authorized and directed to draw checks on the funds on deposit in the registry of this Court made payable to the following two Defendants.
The Court has reviewed the Notice of Claims filed by Claimant Angela Welker Smith (Doc. 61) and Claimant Michael Baldwin (Doc. 62) and finds that based on the information submitted with these Notice of Claims and the Hunt Declaration (Doc. 54), to which no objection was filed, these Defendants are issue (children) of descendants listed as “living” in the Wood Report (Doc. 54-3 at PageID##963-64), and therefore are not entitled to a fractional interest (see Doc. 54-4) for purposes of distribution of the compensation award because their interests have not yet vested.
(a) A check in the amount of $126.98, plus any accrued interest thereon less the applicable registry fee, made payable to “Debby Derryberry” in full satisfaction of this Judgment and Order Disbursing Funds (Judgment), and to mail said check to Debby Derryberry, 1131 Bledsoe Drive, Castalian Springs, Tennessee 37031, in full satisfaction of this Judgment.
(b) A check in the amount of $126.98, plus any accrued interest thereon less the applicable registry fee, made payable to “Jean W. Blunkall” in full satisfaction of this Judgment and Order Disbursing Funds (Judgment), and to mail said check to Jean W. Blunkall, 420 Rock Springs Road, PO Box 416, Castalian Springs, Tennessee 37031, in full satisfaction of this Judgment.
4. To the extent that persons listed in Attachment 1 have not filed a notice of claim and/or are unknown, the Clerk of Court shall keep the remaining funds in an interest-bearing account and shall assess the administrative registry fee authorized by the Judicial Conference of the United States. Any person who subsequently files a notice of claim as to the remaining funds shall file a petition on the docket in this case, and the Court will make a determination as to the validity of any such claim and direct the Clerk of Court to make further disbursements from the remaining funds on deposit. Under 28 U.S.C. § 2042, such funds will be available in the Court's Registry for at least five years. Any funds that remain unclaimed after such time will be deposited with the United States Treasury in the name and to the credit of the United States. After that, “[a]ny claimant entitled to any such money may, on petition to the court and upon notice to the United States attorney and full proof of the right thereto, obtain an order directing payment to him.” 28 U.S.C. § 2042.
5. The Clerk of Court shall also return to TVA all interest accrued while the funds have been on deposit. 40 U.S.C. § 3114(c)(1).
6. The vesting of title in the United States of America, free of all liens, claims, and encumbrances, as evidenced by the Declaration of Taking filed in this action on March 23, 2021 (Doc. 2), is hereby fully and finally confirmed with respect to the property rights described below, said description being the same as in Attachment 1 to the Declaration of Taking (Doc. 2-1):
MCCREARY CEMETERY
An estate in fee simple in the following described land:
TRACT NO. GSP-23
McCreary Cemetery (excepted out of Tract No. GSP-10)
A tract of land lying in the Third Civil District of Sumner County, State of Tennessee, on the right bank of the Cumberland River, approximately 4-1/2 miles southeast of Gallatin, and located within the boundaries of Tract No. GSP-10, more particularly described as follows:
Beginning at the southwest corner of the cemetery tract from which the point in the center line of a county road and in the prolongation of a fence line at a common corner of the lands of the H. A. Schell Heirs, Jene W. Carmichael, and the Tom Franklin Heirs bears approximately S. 18° W., at a distance of approximately 300 feet; thence with the boundary line between the McCreary Cemetery tract and the land of the H. A. Schell Heirs N. 11° 53' E., 12 feet to a point; thence S. 78° 07' E., 17 feet to a point; thence S. 1° 53' W., 12 feet to a point; thence N. 78° 07' W., 17 feet to the Point of Beginning.
The land as described above contains 0.005 net acre, more or less.
The directions of lines are referred to the Tennessee Coordinate System.
All outstanding rights as may be vested in third parties to rights of access to and from the McCreary Cemetery with respect to the following-described land:
TRACT NO. GSP-10-CE
A tract of land lying in the Third Civil District of Sumner County, State of Tennessee, on the right bank of the Cumberland River, approximately 4-1/2 miles southeast of Gallatin, and more particularly described as follows:
Beginning at a point in the center line of a county road and in the prolongation of a fence line, a corner of the lands of Jene W. Carmichael and the Tom Franklin Heirs; thence with the Tom Franklin Heirs' line and a fence line N. 83° W., 405 feet to a fence corner; thence N. 8° E., 375 feet to a fence corner, a corner of the lands of the Tom Franklin Heirs and Elwood B. Bruce, et ux.; thence with Elwood B. Bruce, et ux.'s line N. 8° E., 205 feet to a point in a fence line; thence with the fence line S. 82° E., 2, 400 feet to a point in the mean low water line of the Cumberland River; thence with the mean low water line of the river as it meanders downstream approximately 535 feet to a point in the prolongation of a fence line, a corner to the land of Jene W. Carmichael; thence with Jene W. Carmichael's line and the fence line N. 83° 30' W., 1, 995 feet to the Point of Beginning. Except therefrom 0.005 acre, more or less, for the McCreary
Cemetery tract located within the boundaries of the above described land, the said 0.005 acre being more particularly described as follows: Beginning at the southwest corner of the cemetery tract from which the point in the center line of a county road and in the prolongation of a fence line at a common corner of the lands of the H. A. Schell Heirs, Jene W. Carmichael, and the Tom Franklin Heirs bears approximately S. 18° W., at a distance of approximately 300 feet; thence with the boundary line between the McCreary Cemetery tract and the land of the H. A. Schell Heirs N. 11° 53' E., 12 feet to a point; thence S. 78° 07' E., 17 feet to a point; thence S. 11° 53' W., 12 feet to a point; thence N. 78° 07' W., 17 feet to the Point of Beginning for the exception.
The land as above-described contains 30.8 net acres, more or less.
The directions of lines are referred to the Tennessee Coordinate System.
FRANKLIN CEMETERY
All outstanding rights in a cemetery with respect to the following-described land:
TRACT NO. GSP-11-CE
A tract of land lying in the Third Civil District of Sumner County, State of Tennessee, on the right side of the Cumberland River, approximately 4-1/2 miles southeast of Gallatin, and more particularly described as follows:
Beginning at a point in the center of a road junction, a corner of the lands of Jene W. Carmichael and Silas Sweat; thence with Silas Sweat's line approximately along the center line of a road N. 82° W., 805 feet to a point in the prolongation of a fence line, a corner of the lands of Silas Sweat's and the H. A. Schell Heirs; thence with the H. A. Schell Heirs' line and the fence line N. 8° E., 675 feet to a fence intersection, a corner of the lands of the H. A. Schell Heirs and Elwood B. Bruce, et ux.; thence with Elwood B. Bruce, et ux.'s line and a fence line S. 82° E., 390 feet to a fence corner, a corner of the lands of Elwood B.
Bruce, et ux., and the H. A. Schell Heirs; thence with the H. A. Schell Heirs' line and a fence line S. 8° W., 375 feet to a fence corner; thence S. 83° E., 405 feet to a point in the center line of a county road, a corner of the lands of the H. A. Schell
Heirs and Jene W. Carmichael; thence with Jene W. Carmichael's line and the center line of the county road in a southerly direction approximately 315 feet to the Point of Beginning, and containing 9 acres, more or less.
The directions of lines are referred to the Tennessee Coordinate System.
UNKNOWN CEMETERY
All outstanding rights as may be vested in third parties to a cemetery, known as the Unknown Cemetery, with respect to the following-described land:
TRACT NO. GSP-13-CE
A tract of land lying in the Third Civil District of Sumner County, State of Tennessee, on the right side of the Cumberland River, approximately 4-3/4 miles southeast of Gallatin, and more particularly described as follows:
Beginning at a point in the center line of a road and in the prolongation of a fence line, a corner of the lands of Jene W. Carmichael and Summie Cocke, et al.; thence with Summie Cocke, et al.'s line and the fence line N. 84° W., 425 feet to a point, a corner of the lands of Summie Cocke, et al., and Silas Sweat; thence with Silas Sweat's line, leaving the fence line, N. 8° E., 216 feet to a point in a fence line; thence with the fence line S. 84° E., 425 feet to a point in the center line of a road, a corner of the lands of Silas Sweat and Jene W. Carmichael; thence with Jene W. Carmichael's line and the center line of the road in a southerly direction approximately 215 feet to the Point of Beginning, and containing 2 acres, more or less.
The directions of lines are referred to the Tennessee Coordinate System.
BAILEY CEMETERY
The outstanding right of access to a grave of an unknown person, known as the Bailey Cemetery, with respect to the following-described land:
TRACT NO. GSP-17-CE
A tract of land lying in the Third Civil District of Sumner County, State of Tennessee, on the right side of the Cumberland River, approximately 4 miles southeast of Gallatin, and more particularly described as follows:
Beginning at a point in the center line of a county road and in the prolongation of a fence line, a corner of the lands of Sam N. Schell, et ux., and Elwood B. Bruce, et ux.; thence with Elwood B. Bruce, et ux.'s line and the fence line N. 86° W., 400 feet to a fence intersection, a corner of the lands of Elwood B. Bruce, et ux., and Nelson Alexander, et ux.; thence with Nelson Alexander, et ux.'s line and a fence line N. 7° 30' E. 495 feet to a point; thence N. 80° E., 25 feet to a point in the center line of a county road, a corner of the lands of Nelson Alexander, et ux.,
and Sam N. Schell, et ux.; thence with Sam N. Schell, et ux.'s line and the center line of the county road as it meanders in a southeasterly direction approximately 640 feet to the Point of Beginning, and containing 1.6 acres, more or less.
The directions of lines are referred to the Tennessee Coordinate System.
UNKNOWN NO. 10 CEMETERY
All outstanding burial rights in existing graves and access thereto with respect to the following-described land:
TRACT NO. GSP-18-CE
A tract of land lying in the Third Civil District of Sumner County, State of Tennessee, on the right side of the Cumberland River, approximately 4 miles southeast of Gallatin, and more particularly described as follows:
Beginning at a point in the center line of a county road, a corner of the lands of Nelson Alexander, et ux., and the Joe Hudson Heirs and the most northwesterly corner of the tract herein described; thence with the Joe Hudson Heirs' line S. 84° 30' E., 565 feet to a point in a fence line; thence with a fence line S. 8° W., 130 feet to a fence corner; thence S. 79° 30' E., 415 feet to a fence intersection, a corner of the lands of the Joe Hudson Heirs and Virgil & Luther Merritt; thence with Virgil & Luther Merritt's line and a fence line S. 8° W., 240 feet to a fence intersection, a corner of the lands of Virgil & Luther Merritt and Elwood B. Bruce, et ux.; thence with Elwood B. Bruce, et ux.'s line and a fence line S. 8° W., 165 feet to a fence corner; thence S. 67° W., 390 feet to a point in the center line of a county road; thence with Elwood B. Bruce, et ux.'s, J. T. Bruce's, and Nelson Alexander, et ux.'s lines and the center line of the road as it meanders in a northwesterly direction approximately 1, 020 feet to the Point of Beginning, and containing 10.6 acres, more or less.
The directions of lines are referred to the Tennessee Coordinate System.
ODOM/HUDSON CEMETERY
All outstanding rights as may be vested in third parties to a cemetery with respect to the following-described land:
TRACT NO. GSP-19-CE
A tract of land lying in the Third Civil District of Sumner County, State of Tennessee, on the right side of the Cumberland River, approximately 4 miles southeast of Gallatin, and more particularly described as follows:
Beginning at a point in the center line of a county road and in the prolongation of a fence line, a corner of the lands of Nelson Alexander, et ux., and Elmira Mills, et al.; thence with Elmira Mills, et al.'s line and a fence line S. 82° E., 1, 160 feet
to a fence intersection, a corner of the lands of Elmira Mills, et al., and Virgil & Luther Merritt; thence with Virgil & Luther Merritt's line and a fence line S. 8° W., 590 feet to a fence intersection, a corner of the lands of Virgil & Luther Merritt and Sam N. Schell, et ux.; thence with Sam N. Schell, et ux.'s line and a fence line N. 79° 30' W., 415 feet to a fence corner; thence N. 8° E., 130 feet to a point; thence, leaving the fence line, N. 84° 30' W., 565 feet to a point in the center line of a county road, a corner of the lands of Sam N. Schell, et ux. and Nelson Alexander, et ux.; thence with Nelson Alexander, et ux.'s line and the center line of the road in a northerly direction approximately 500 feet to the Point of Beginning, and containing 12.2 acres, more or less.
The directions of lines are referred to the Tennessee Coordinate System.
7. The Clerk of this Court shall furnish to Plaintiff a certified copy of this Judgment which shall serve as a muniment of title.
It is so ORDERED.