Anderson v. Turbeville

• Decision Date: 31 December 1868
• Citation: 46 Tenn. 150
• Parties: Thompson Anderson v. W. J. Turbeville.
• Court: Tennessee Supreme Court

46 Tenn. 150

Thompson Anderson

v.W. J. Turbeville.

Supreme Court of Tennessee.

December Term, 1868.

FROM DAVIDSON.

This cause was tried before Judge MANSON M. BRIEN, Sr., at the May Term, 1867, who gave a judgment in favor of Turbeville. Anderson appealed.

GUILD & SMITH, for Anderson.

JOHN C. THOMPSON and ED. BAXTER, for Turbeville.

HENRY G. SMITH, J., delivered the opinion of the Court.

Turbeville brought this action in the Circuit Court of Davidson County, against Anderson, for obstructing his passage along a public street, in the city of Nashville, by reason of which he suffered damage.

The matter in controversy was, whether the land over which Turbeville proposed to pass, and was hindered, is a public street or private property. Anderson claims the land to be his private property, and Turbeville claims that the land is part of what is called, in Nashville, Old McLemore Street, and is a public highway.

In the year 1856, Anderson bought from John H. Williams, and obtained from him, a deed of conveyance of a lot, a part of which lies within the supposed street. Recently, Anderson erected a fence upon the line described in the deed, and extending into and across a portion of the street, and obstructing the passage of persons along the street.

To establish the existence of the street, the plaintiff put in evidence upon the trial, in the court below, a tran. script of the record of proceedings before the judge of the Circuit Court of Davidson County, beginning in 1844, and ending in 1852, wherein a decree was rendered, establishing the street in question.

Evidence also, was given, tending to prove that the street had been used as a public highway for many years before the proceedings in the Circuit Court.

On the other hand, the defendant produced in proof, the transcript of the proceedings in the Chancery Court at Nashville, between the Trustees of the Female Academy, complainants, and the Municipal Corporation of Nashville, defendants, wherein was rendered, in 1859, a formal decree, ordering the street, as to the part in question here, to be closed and extinguished, and a new street a short distance to the west, and parallel to the old street, to be opened as a public street in the stead of the old street.

Upon the trial of the cause between the present parties, Turbeville and Anderson, the Court below instructed the jury that the order of the Circuit Judge, in 1852, was a valid decree, and established Old McLemore street as a public highway; and that the decree of the Chancery Court, of 1859, was void and of no effect.

Exception was taken to the charge of the Court, by the defendant, Anderson. The jury found a verdict in favor of Turbeville; and the cause is brought here, on bill of exceptions, by appeal in error.

The errors assigned are:

The instruction, that the decree of 1852, establishing the street, is valid; and the instruction, that the decree in Chancery, of 1859, abolishing the street, is void. On the part of Anderson, the claim is, that the instructions were erroneous, as to both decrees. For Turbeville, the contrary is assumed.

To the first point:--The record of the proceedings in the Circuit Court, upon the application to establish the street, beginning in 1844 and ending in 1852, is imperfect. The papers in the case are lost. Nothing appears here, but what is of record entered on the minute book of the court. From this it appears that, at May Term, 1844, upon the petition of the Mayor and Aldermen of Nashville, an order was made, reciting, that, it appearing that the facts stated in the petition of the Mayor and Aldermen of Nashville, ex parte, are true, and that the prayer of the petition ought to be granted; it is therefore, ordered, that the sheriff summon a jury of twelve impartial freeholders, who shall be sworn, and shall then examine the ground, and ascertain whether the establishment of the street be expedient, and what damages are likely to arise, etc., and shall report, etc. At May Term, 1846, the order directing a jury of view, etc.. is rendered, etc. At May Term, 1852, an order is made, reciting, that it appears from the petition that the prayer ought to be granted; and the Court orders that the sheriff summon a jury of twelve impartial freeholders, etc., who shall examine the ground, and report upon the utility and necessity of the street, etc.

Afterwards, and at the same term, a decree is rendered reciting that the cause comes on to be heard upon the report of the jury; which report recites that the jury, composed of twelve freeholders, etc., summoned by the sheriff, etc., and being duly sworn, examined the ground and unanimously agree that the proposed street is of great importance to the public and to the owners of the lots fronting on it, and ought to be opened and established; and that no damages ought to be allowed to the owners of the ground, for the reason that the street will increase the value of the ground more than the amount of the damages, etc. Whereupon the Court orders and decrees that the report of the jury be confirmed, and that the street be opened and established as a public street, etc.

On the part of Anderson, it is alleged that the record is void for divers defects and irregularities:--

First, Notice of the proceedings to establish the street, does not appear to have been given to the owners of the land condemned for the street; and especially to the Trustees of the Female Academy, who owned the greater part of the land, or to Williams, the grantor of Anderson.

Second, No damages were assessed to the owners, and none are shown to have been paid to them.

The proceedings were had under the Act of the General Assembly of Nov. 14th, 1827, which enacts: That, whenever the Mayor, etc., of Nashville, are of opinion that the public convenience will be promoted by opening a new street, etc., they may prefer their petition, under the hand of the Mayor, to the judge of the Circuit Court of Davidson County, in term time, setting forth particularly the ground over which it is designed to run the new street. That on such petition being exhibited, the Court shall or der the sheriff to summon twelve discre?? and impartial freeholders, citizens and inhabitants of the town, who shall, on their oath, administered by a justice of the peace, view the ground over which it is designed to run the street, and ascertain the damage any person may sustain, in consequence of the street passing over his land, and inquire whether the opening of the street is important to the public convenience; all of which facts the jury shall report, etc. That on the report made and signed by the jurors, or a majority of them, the Court shall proceed to consider and give judgment on the petition; and if, in his opinion, it will promote the public convenience to grant the prayer of the petition, he shall decree that the street may be opened and established; provided, that the Mayor, etc., shall not proceed to open the street, until they shall first deposit in the office of the Clerk of the Court, or pay to the person or persons, the whole amount of the damages awarded by the jury; and provided, that any per son through whose premises the street shall pass, may appeal to the Supreme Court.

First, As to the effect of the decree of 1859, between the Female Academy and the Mayor and Aldermen of Nashville:

The bill between the parties, sets forth the proceedings in the Circuit Court ordering the establishment of the street; and that the Academy was at the time, the own. er of a large part of the land on which the street was laid out between Spring and Union streets; and that the proceeding was irregular in many designated particulars; and that no compensation was ever paid to the Academy, and no provision ever made or provided for the payment; and prays that the order establishing the street be decreed void, and that their land be not taken for the public use, without compensation.

The answer denies many, perhaps most of the material allegations of the bill.

The final decree recites: That, it appearing by consent of counsel of the parties, that they have compromised the matter of litigation, by an agreement of the Academy to lay out and dedicate to the public use, a street across their land, about forty feet west of, and parallel to the street in controversy; and by an agreement of the Mayor and Aldermen, that the Chancery Court shall declare void and annul the decree of the Circuit Court laying out the old street; and that the opening of that street shall be enjoined. It was therefore, ordered that the street dedicated by the complainants be established a perpetual public highway, and that the decree of the Circuit Court be void and annulled, and the defendant perpetually enjoined from opening the street in controversy--the Old McLemore Street.

This decree is not void. The bill stands on an established equity of the person whose land has been taken for public use without compensation paid or provided, to enjoin the taking, and have the same declared void, unless the compensation be paid or provided: 6 Paige, 83; 2 J. C. R., 161; 1 Baldwin's Rep., --; 2 Swan, 540; 2 Story's Eq., secs. 527, 528; Cooley Const., Lim., 528, n, 529, n.

Between the parties and privies to this decree, it is valid and binding. But no further, nor otherwise.

So far as relates to the Mayor and Aldermen, they represent the public, and have the power to bind the rights of the public in regard to the opening and closing the streets of the city. With respect to the closing of a public street, the municipal corporation representing the State, has the power to abandon the public use of it, and be exonerated from obligation to keep it in repair, and otherwise suitable for the public use: Cool. Const. Lim., 522; 26 Penn., 238;21 Conn., 313;4 Humph., 313.

But the owners of lots bordering upon a public street, have an easement of way in the street, in addition to the use of it in common with the people generally. This...