Barron v. City of Memphis

• Decision Date: 23 April 1904
• Citation: 80 S.W. 832
• Parties: BARRON et ux. v. CITY OF MEMPHIS.
• Court: Tennessee Supreme Court

80 S.W. 832

BARRON et ux. v.CITY OF MEMPHIS.

Supreme Court of Tennessee.

April 23, 1904.

Error to Circuit Court, Shelby County; J. P. Young, Judge.

Action by James H. Barron and wife against the city of Memphis.There was judgment for defendant, and plaintiffs bring error.Reversed.

Bell, Terry & Bell, for plaintiffs in error.W. B. Henderson, for defendant in error.

BEARD, C. J.

This is an action in the nature of trespass on the case to recover damages for injuries alleged to have been inflicted by the city of Memphis on the property of Mrs. Venorah Barron.The suit was brought by her and her husband.Upon the trial a demurrer interposed by the defendant below to the evidence of plaintiffs was sustained.To this action of the courtplaintiffs assign error.

The testimony discloses that Mrs. Barron is the owner of a lot in the city of Memphis, the rear of which extends to and is bounded by Bayou Gayoso, a stream which passes through the city and discharges into the Mississippi river.Over this stream, and near the property of Mrs. Barron, a bridge has been standing for many years.The center of this bridge was supported by a stone pier.Some time before the institution of this suit, under the direction of the municipal authorities, this central pier was extended or enlarged in order that it might bear the additional weight of one of the city's sewers.In making this extension the pier was so constructed that it stood, when completed, at a small angle across the channel of the stream.The result was to divert the current of the bayou and throw it across the lot of Mrs. Barron, so that by a process of erosion a large part of it has been destroyed.To such extent did this injury go that the pillars of a house standing on the lot were undermined, and to relieve it from threatened destruction the house was moved by plaintiffs in error.

Upon these facts it is maintained by the owners that there was a taking of Mrs. Barron's property within section 21 of article 1 of the Constitution of Tennessee, which is in these words: "No man's property shall be taken or applied to public use * * * without just compensation."

To put this provision in operation, it is not essential that there should be an actual appropriation of the property taken to the public use."It is enough if any right of the owner respecting the thing owned be impaired so that he cannot apply the thing to all the uses of which it was formerly capable."Taylor on Corporations, § 173.

Mr. Woods is in accord with this statement of the rule.In his work on Nuisances (section 762)he says: Whenever the exercise of right (asserted) operates to destroy an easement incident to real property, or amounts to an actual physical invasion of property by some agency that produces injury thereto or imposes a burden thereon, this is a taking of property."

The texts of these authors are supported by a citation of many cases, and we think it may be safely stated that, even in the absence of the appropriation by the government, or one of its agencies, to a public use, yet if, in carrying on its work, it seriously interrupts the common and necessary use of the property by its owner, this is a taking within the meaning of the constitutional provision.Much more so must it be when by the act of the government the invasion amounts to a practical destruction of a part of the whole of the property.

As was said by the Supreme Court of the United States in Pumpelly v. Canal Co., 13 Wall. 166, 20 L. Ed. 557: "It would be a very curious and unsatisfactory result if, in construing a provision of constitutional law, * * * it shall be held that, if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely; can inflict irreparable and permanent injury to any extent; can, in effect, subject it to total destruction — without making any compensation, because in the narrowest sense of that word it is not...