(dissenting).
I must respectfully dissent.
Although the majority opinion recognizes the injustice of the decision in Tillman v. Lewisburg & N. Railroad Co., 133 Tenn. 554, 182 S.W. 597 (1915), it nevertheless applies the rule there announced that “unity of title” must exist in order for the citizen to recover incidental or consequential damages to the property remaining after the taking of a contiguous tract in which the citizen has an ownership interest as a tenant in common. The property taken is the parking lot for a motel located on the property not taken but which is contiguous to that taken and with respect to which there exists “unity of use.” Obviously, the motel property must be substantially damaged by the taking of the parking lot, a very essential part of a motel business.
Tillman speaks too much of “unity” of title, use, etc., and not enough of the mandate of the Constitution and statutes that no person’s property be taken without just compensation. Constitution of Tennessee, Art. I, Sec. 21; T.C.A. Sec. 23-1414. Tillman is typical of jurisprudence in the latter part of the nineteenth century and the early part of the twentieth when courts sometimes showed more interest in the apparent “logical symmetry” of their decisions than in assuring that the law achieved justice. Accordingly, I would overrule Tillman.
The majority opinion states that “Petitioner’s rights in the condemned property rest on a fragile foundation.” I cannot agree. Tenants in common in Tennessee enjoy a rather substantial estate. They are jointly seized of the entire estate; each has an equal right of entry and possession, and the possession of one is the possession of all. Story v. Saunders, 27 Tenn. 663. Any tenant in common has the right to enter upon the common estate and take possession of the whole thereof subject only to the equal right of his cotenants. Garland v. Holston Oil Co., 53 Tenn.App. 703, 386 S.W.2d 914. In my view petitioner, as a tenant in common, had a sufficiently substantial interest or “title” in the property taken to entitle him to seek damages to the remainder. See: Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219; 95 A.L.R.2d 894.
I would reverse the judgment of the Court of Appeals and remand to the trial court for a determination of the incidental or consequential damages to the motel tract.