Alloway v. City of Nashville

• Decision Date: 11 February 1890
• Citation: 13 S.W. 123,88 Tenn. 510
• Parties: ALLOWAY et ux. v. CITY OF NASHVILLE.
• Court: Tennessee Supreme Court

13 S.W. 123

88 Tenn. 510

ALLOWAY et ux. v. CITY OF NASHVILLE.

Supreme Court of Tennessee.

February 11, 1890

Appeal from circuit court, Davidson county; W. K. MCALLISTER, Judge.

Demoss & Malone, East & Fogg, and J. M. Anderson, for appellants.

Vertrees & Vertrees and Lytton Taylor, for appellee.

CALDWELL J.

This proceeding was instituted by the city of Nashville, in August, 1887, to condemn and appropriate what is known as "Kirkpatrick's Hill," for reservoir purposes. The jury of view assessed the damages at $9,686. Alloway and wife, the owners of the property, appealed from that report and obtained a trial in the circuit court, when verdict and judgment were rendered for $12,532. From that judgment Alloway and wife prosecuted an appeal in error to this court.

The assignment of errors presents several important and interesting questions of law and practice, which it is necessary to consider somewhat in detail in order to reach an intelligent decision of the case. It is objected, and assigned as error, that the owners of the land were not permitted to show its particular value as a reservoir site and, again, that the trial judge, in his charge, instructed the jury that, in determining the value of the property taken, they could not single out from the elements of general value, its value for one special purpose. These two objections raise the same legal question, and will for that reason be considered together.

The "just compensation" required by our constitution (article 1, § 21) is the fair cash value of the land taken for public use, estimated as if the owner were willing to sell, and the corporation desired to buy, that particular quantity at that place and in that form. Woodfolk v Railroad Co., 2 Swan, 437; Railroad Co. v. Love, 3 Head, 67; Railroad Co. v. Adams, Id. 600; City of Memphis v. Bolton, 9 Heisk. 509. This value means the market value. Lewis, Em. Dom. § 478; Boom Co v. Patterson, 98 U.S. 408; Cooley, Const. Lim. (5th Ed.) 699. It includes every element of usefulness and advantage in the property. If it be useful for agriculture or for residence purposes; if it has adaptability for a reservoir site, or for the operation of machinery; if it contains a quarry of stone, or a mine of precious metals; if it possesses advantage of location, or availability for any useful purpose whatever; all these belong to the owner, and are to be considered in estimating its value. It matters not that the owner uses the property for the least valuable of all the ends to which it is adapted, or that he puts it to no profitable use at all. All its capabilities are his, and must be taken into the estimate. This does not mean that all the capabilities are to be priced separately, and the aggregate put down as the true value; for they do not exist independently of each other, and cannot all be realized at the same time. Nor will it do to restrict the estimate to any one of them, because in one view that would exclude the other elements altogether, and in the other view it would tend to make the degree of benefit to the party appropriating and condemning for a particular purpose the real measure of value, which is never allowable. The field of investigation, in the case before us, was a very broad one. The location and elevation of the property were given. Its surface, area, and present use were described. The existence and character of stone within its compass, and the fact that the best of the stone was used in the construction of the walls of the reservoir, were disclosed. The city's engineer said that the hill had some value for residence purposes, but was valuable "mostly for a reservoir site," and this view was confirmed by Mr. John Overton, who said that there was only "one or two more good places for a reservoir" in reach of the city. No witness was allowed to put a price upon any single element of usefulness or advantage, but all the foregoing facts and circumstances were stated in detail by one witness and another, and from them all the witnesses gave their opinions as to the market value of the property. The questions calling for such opinions were generally in this form: "Considering the property sought to be condemned in the form it was taken, and as it was taken, and having regard to the entire property, and the uses to which it was put, and also the uses to which it was adapted, and assuming that Mr. Alloway wanted to sell, but was not obliged to sell, this piece or parcel of land, and the city wanted to buy it, but was not obliged to have it, what was the cash market value of the same in August, 1887, and what would be just compensation to Mr. Alloway, and what damages should be allowed him?" Some of the witnesses, especially those put upon the stand by the owners, answered that question as to their acquaintance with the property and its market value.

With respect to the mode of ascertaining the value of the land taken, the circuit judge instructed the jury in these words: "In estimating its value, all the capabilities of the property, and all the uses to which it may be applied, are to be considered, and not merely the condition it is in at the time, and the use to which it is then applied by the owner. It is not a question of the value of the property to the owner, nor can the value be advanced by his unwillingness to sell. On the other hand, the damages cannot be measured by the value of the property to the party condemning it, nor by its need of the particular property. The city is entitled to have the land at its fair, market, cash value, unaffected by the fact that it needs it, or desires it. If it were otherwise, the value of land would not be measured by what it is actually worth in the market, but by the extent to which it might be necessary for public use; and so, when an appropriation of land is made for a city reservoir, the question is not what the land is worth to the city for the special purpose, for that would be to measure the value by the immediate necessities of the public, rather than the actual worth of the land. In determining the market cash value, you cannot single out from the elements of general value the value for an especial purpose, but you are to consider all the constituent elements that make up the market value,--its availability, adaptability, and capacity for different uses and purposes. In determining the market cash value, everything which enhances or depreciates its worth should be taken into consideration. If the existence of a rock quarry under the surface of the hill augmented or entered into the market value of the land, that fact should be considered; but the jury could make no separate allowance for the rock, for that would necessitate an inquiry into the cost of excavating and raising it. The cash market value of the land with the rock in it would be the proper consideration." To a great extent, and entirely so, so far as the cases are alike, this charge is sustained by the opinion of this court in Woodfolk v. Railroad Co., 2 Swan, 437; and in that and all other respects it is in accord with the doctrine laid down in Lewis, Em. Dom. §§ 478, 479, 486; 3 Suth. Dam. 441, 442; Mills, Em. Dom. (2d Ed.) § 168, Moulton v. Water Co., 137 Mass. 163, Searle v. Railroad Co., 33 Pa. St. 57; and in other cases not necessary to be cited. Thus, as we think, every legitimate question on this branch of the case was developed, and properly submitted for the consideration of the jury. The action of the trial judge was right, both in the rejection of evidence of the amount of value for a reservoir site, and in the instruction that the jury could not single out and estimate the value for a special purpose.

We fully agree with the learned counsel of Alloway and wife, that "the particular purpose for which a piece of property is most applicable" must be considered in estimating the value of such property. That was done in this case. It was distinctly proven that "Kirkpatrick's Hill" was applicable, "mostly, for a reservoir site," and the jury was told to consider that, and every other element of value. That they did so cannot be doubted for a moment, in the light of the whole proof, and the amount of the verdict returned. Our holding is that, while adaptability for a reservoir site must be considered, the value for such a purpose exclusively cannot be shown in proof, and made the sole basis of a recovery, especially when the property possesses other capabilities, as in this case.

There is a lack of harmony in the decisions on this subject, some of them permitting the inquiry as to the value of the property for one special use, and others holding, as we do that the market value in view of all available uses is the measure of compensation. It is not desirable to review all the cases in this opinion, but some of them will be mentioned. The latest one in the former line is that of San Diego Land Co. v. Neale, decided by the supreme court of California in 1888, and published in 20 P. 372. In that case it was held, distinctly, that it was competent to prove the value of land for a reservoir site, and to make that value the measure of damages, independent of any other consideration or element of value; and that, too, when the land sought to be condemned was in fact not the real site of the reservoir, but only necessary to contain back water from the dam below. To reach that conclusion, two former decisions by the same court, holding a contrary rule, were overruled, and other authorities cited in the opinion, were followed. In a case of the other line, this language is used: "But, where a condemnation is sought for the purposes of a railroad, to single out from the elements of general value the value for the special purposes of such railroad is, in effect, to put to a jury the question, what is the...