Osborne Enterprises, Inc. v. City of Chattanooga

OPINION ON PETITION TO REHEAR

PARROTT, Presiding Judge (E.S.).

The defendant, City of Chattanooga, petitions this Court to reconsider the effect of Ordinance 5991, passed in 1969, which lowered the approach zone from the extended runway. Defendants argue that since the ordinance, as a matter of law, puts the plaintiffs on notice of the lowered glide path, the one year statute of limitations precludes their cause of action filed in October 1971. We considered this argument in our original opinion and determined then that it was without merit in light of recent inverse condemnation cases in this State that hold the statute of limitations begins to run when the landowner’s property is injured by the taking, not when the landowner has notice of the taking. We will take this opportunity on defendants’ petition to rehear to re-emphasize and re-affirm our prior determination.

The leading cases in Tennessee that establish this principle are Johnson v. City of Greeneville, 222 Tenn. 260, 435 S.W.2d 476 (1968); Knox County v. Moncier, 224 Tenn. 361, 455 S.W.2d 153 (1970); and Jones v. Cocke County, 57 Tenn.App. 496, 420 S.W.2d 587 (1967). In each of these cases it is held that “in a suit such as this, the landowner’s cause of action does not accrue until an injury has been suffered.” (Emphasis supplied.) Jones v. Cocke County, supra. More specifically, in Johnson v. City of Greeneville, supra, 435 S.W.2d at 481, our Supreme Court stated:

We think that this one year statute means that it begins to run within one year from the time of the injury instead of one year from the date of construction.

The defendants cite Knox County v. Moncier, supra, for the proposition that summary judgment oh the statute of limitations question was proper in this case because the plaintiffs were put on notice of the taking and should have reasonably realized that their property would be damaged. We can not agree with this strained application of Moncier. In Moncier the Supreme Court held “that the onus is on the property owner to institute his suit within one year after he realizes or should reasonably realize that his property has sustained an injury which is permanent in nature. At that time the “taking” occurs and the statute of limitations begins to run.” Supra, 224 Tenn. at 368, 455 S.W.2d at 156.

The plaintiffs’ affidavit establishes the plaintiffs’ lack of knowledge of any injury to their property resulting from the lowered glide path. Applying the holding in Moncier to this factual situation, the result is a material issue of fact inappropriate for summary judgment. The time of the accrual of the cause of action is not clearly provided and the evidence is in conflict. Therefore, the running of the statute of limitations is a question of fact to be determined by the jury or trier of fact under the evidence and is not an appropriate issue for resolution by motion for summary judgment.

We accordingly overrule defendants’ arguments on petition to rehear and re-affirm our original opinion.

GODDARD, J„ and T. MACK BLACKBURN, Special Judge, concur.