Armstrong v. Illinois Cent. R. Co.
| Decision Date | 06 February 1926 |
| Docket Number | (No. 3.) |
| Parties | ARMSTRONG v. ILLINOIS CENT. R. CO. et al. |
| Court | Tennessee Supreme Court |
Bill by H. L. Armstrong against the Illinois Central Railroad Company and others. Decree for complainant was reversed and remanded in the Court of Appeals, and both parties filed petitions for certiorari. Affirmed.
Taylor & Goodman, of Memphis, for plaintiff in error.
Burch, Minor & McKay and Sivley, Evans & McCadden, all of Memphis, for defendants in error.
The bill in this cause was filed by the complainant, H. L. Armstrong, against the defendants, Illinois Central Railroad Company, St. Louis & San Francisco Railroad Company, and the Union Railroad Company, for the purpose of enjoining them from laying a track over and across his 15-acre tract of land located in Memphis.
The Union Railroad Company is a domestic corporation. The other defendants are foreign corporations, but all own and operate railroads in Tennessee.
The complainant's tract of land fronts south on South parkway 703 feet, and has a depth of 922 feet. It is also bounded on the east by Louisiana street.
The proposed track was to cross said land from east to west at a distance of about 375 feet north of South parkway.
When the bill was filed the defendants were in possession of the land across which they proposed laying a track, had graded same, and were preparing to place cross-ties and rails when they were enjoined. The defendants contended that the 30-foot strip graded was a public street known as Stockley avenue, and that they took possession of same by virtue of authority granted to them by the city of Memphis.
The land in question is located in an open country in the suburbs of South Memphis.
The Ford Motor Company has constructed a large assembling plant a short distance west of complainant's land, and there will be shipped to and from this plant alone 20,000 cars of freight per annum.
The record further shows that other large industrial corporations are considering the location of their plants in that vicinity, and, further, that this locality is admirably adapted for such purpose, and that the defendants were extending a branch line to this section for the purpose of developing an industrial center, and to transport freight to and from the Ford plant, and such other plants as may be established there.
The branch line in question extends in a southerly direction from the main line of the Frisco Railroad, although it is to cross complainant's land in a due east and west direction at a distance of one-half a mile from the main track.
The defendants acquired, by purchase, the right of way for this branch line over all the lands to be traversed except that of complainant. They did not negotiate with complainant for a right of way across his land for the reason that they were advised by counsel that Stockley avenue was one of the streets of the city and that the complainant did not own same.
The chancellor and the Court of Appeals concurred in holding that Stockley avenue was not a public street, but that complainant had a fee-simple title to same.
Upon the hearing the chancellor enjoined the defendants from laying a railroad track across complainant's land.
Upon an appeal the Court of Appeals reversed the chancellor, and held that the complainant was only entitled to the relief afforded him by section 1866 of Shannon's Annotated Code, which is as follows:
"If, however, such person or company has actually taken possession of such land, occupying it for the purposes of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest."
That court remanded the cause to the chancery court for a reference as to damages upon the theory that the chancery court, having acquired jurisdiction for the purpose of decreeing title to the property involved, would retain jurisdiction for the ascertainment of damages.
Each party filed a petition for certiorari, and the cause has been splendidly briefed and ably argued at the bar of this court.
We will first dispose of the questions raised by the complainant, but in doing so we find it unnecessary to set forth his lengthy assignments of error in hæc verba.
(1) Did the Court of Appeals commit error in denying complainant injunctive relief, and remanding him to his action for compensation under said section 1866?
(a) It is said that defendants acquired possession of complainant's land by fraud, and for that reason they will be repelled from a court of equity. If true, in fact, that possession were so acquired, then such possession was unquestionably illegal. But the mere fact that the possession is illegal does not entitle complainant to dispossess the defendants by injunction.
This court, in Tennessee Coal, Iron & Railroad Co. v. Paint Rock Flume & Transportation Co., 160 S. W. 522, 128 Tenn. 282, said:
The statute says that where the public service corporation is in possession the owner shall proceed in a certain way, and it says nothing about the method by which the possession was acquired.
Necessarily whenever a railroad takes possession of the property of another, without authority, its possession is illegal.
We deem it unnecessary to pursue this question further for the reason that we find, as did the Court of Appeals, that the defendant did not acquire possession of this property by means of fraud. The property was open, uninclosed, and vacant. During the first week of May the defendants staked off a right of way through what they conceived to be Stockley avenue, and the complainant knew about this. Some time prior to May the 13th they drafted a map showing the proposed location of this branch track, and according to said map it extended through Stockley avenue.
The defendant furnished the real estate agent of complainant a copy of said map, and he, in turn, exhibited same to complainant. Thereupon the complainant, by letter and in personal conversation with defendants' engineers, set up his claim to the property in question, and denied the existence of Stockley avenue. It is quite clear to us that complainant knew that defendants were preparing to construct a railroad track through Stockley avenue, and that his conception of the law was to enjoin them after the work was begun. There was no occasion for the defendants to act secretly or fraudulently. All they had to do to remit complainant to the remedy provided in section 1866 was to enter upon the land with their force and begin work, and that is what they did.
After staking off the right of way and preparing the map showing the location of the road, the defendants submitted proposals to contractors for the construction of the roadbed.
It was necessary to open a cut on the Robertson land immediately west of complainant, and to remove therefrom 33,000 cubic yards of earth, and it became necessary for the contractors, before submitting bids, to find a place to deposit such earth removed from the Robertson land. The complainant's tract was lower than the bed of South parkway, and he agreed with two of the contractors that they could deposit such earth upon his land. One of these was a man by the name of Roach. The contract to grade the roadbed was awarded to Roach, and he thereupon entered into a written contract with complainant for the deposit of the 33,000 cubic yards of earth from the Robertson tract onto his tract. Roach thereupon began excavating upon the Robertson tract, and used 1,000 cubic yards of the earth in making a fiill on Stockley avenue; the remaining 32,000 cubic yards, or thereabout, was deposited on other portions of complainant's tract.
Roach testified that he had no idea of practicing any fraud on complainant, and assumed that an arrangement had been made for the construction of the roadbed through Stockley avenue, and did not even know that a controversy existed between the parties.
The officers of the railroads testified to the same effect.
The original bill, as well as the amended bill, charged specifically that defendant was in possession of the strip in controversy, and this was admitted in the answer. In the original bill not a word was said about defendant's possession being acquired fraudulently, and that appears for the first time in the amended bill, and quite likely after complainant ascertained that, upon the...
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