Brooksbank v. Roane County

• Decision Date: 09 December 1960
• Court: Tennessee Supreme Court
• Parties: , 207 Tenn. 524 Robert E. BROOKSBANK et al., Plaintiffs in Error, v. ROANE COUNTY, Defendant in Error. James H. JOHNSTON et ux., Plaintiffs in Error, v. ROANE COUNTY, Defendant in Error.

Page 570

341 S.W.2d 570

11 McCanless 524, 207 Tenn. 524

Robert E. BROOKSBANK et al., Plaintiffs in Error, v. ROANE COUNTY, Defendant in Error.

James H. JOHNSTON et ux., Plaintiffs in Error, v. ROANE COUNTY, Defendant in Error.

Supreme Court of Tennessee.

Dec. 9, 1960.

Elmer L. Eblen, Kingston, for plaintiffs in error.

James M. Glasgow, Asst. Atty. Gen., for defendant in error.

SWEPSTON, Justice.

These are two separate cases in which the pleadings and material allegations as well as the questions for determination are the same and one opinion will suffice for the disposition of both cases.

The cases are in this Court on a direct appeal from the action of the trial judge in sustaining a demurrer in each case. As will appear shortly hereinafter, the determinative question is whether or not the saving statute, T.C.A. Sec. 28-106, is applicable to the situation where a landowner, whose land has been taken possession of for the purpose of internal improvement, has filed his suit under T.C.A. Secs. 23-1423 and 23-1424 within 12 months after the actual taking of possession, but has taken a voluntary non-suit and then re-filed his suit within one year of said non-suit, but more than one year since the taking.

T.C.A. Sec. 28-106 provides:

'New action after adverse decision not foreclosing merits.--If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest.'

T.C.A. Sec. 23-1423 provides:

'Action initiated by owner.--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.'

T.C.A. Sec. 23-1424 provides:

'Limitation of owners' actions.--The owners of land shall, in such cases, commence proceedings within twelve (12) months after the land has been actually taken possession of, and the work of the proposed internal improvement begun; saving, however, to unknown owners and nonresidents, twelve (12) months after actual knowledge of such occupation, not exceeding three (3) years, and saving to persons under the disabilities of infancy and unsoundness of mind, twelve (12) months after such disability is removed, but not exceeding ten (10) years.'

March 29, 1960, the landowner filed his 'reverse' petition for condemnation against Roane County, Tennessee, alleging that certain of his land had been taken and certain other of his land had been damaged by Roane County in cooperation with the State in executing the highway program, i. e., for internal improvements. It is averred that a prior suit, the style and rule docket number of which is stated, was filed against Roane County and others but that the same was terminated by a voluntary non-suit on April 10, 1959, which on the face of things puts the present petition within a year after said non-suit. The prayer is for just compensation; for a jury of inquest to fix the damages; and for such other, further and general relief as the petitioner may be entitled to.

The demurrer is that said Code Sections 23-1423 and 1424, supra, provide (create) both the right of action and the period of limitations within which such suits must be filed by the landowner; and that said record in the previous cause referred to in the face of the petition shows that the right of action against Roane County is barred by said one-year limitation period provided by said Code Section 23-1424.

The two assignments of error are in effect: (1) that the record in the previous case does not affirmatively disclose that said suit was filed more than one year after the property was taken; (2) that the record affirmatively shows that the suit was filed within one year after the dismissal of a prior suit between the same parties involving the same controversy and was disposed of other than on the merits and by voluntary non-suit.

It is, of course, proper to refer to the record of the previous petition which is described in the present petition. That case is reported in Brooksbank v. Leech, Tenn., 332 S.W.2d 210, but we need concern ourselves with the record as made in the trial court with reference only to Roane County.

September 10, 1958, the original petition was filed against the State Commissioner of Highways attempting to recover a judgment in what amounted to a direct action against the State, for which there was no statutory or constitutional provision. Following a demurrer on that ground on October 24, 1958, a petition to amend was filed so as to make Roane County a party defendant. April 8, 1959, said amendment was allowed. April 10, 1959, a voluntary non-suit was taken as to Roane County. March 29, 1960, as heretofore stated, the present suit was filed.

Therefore, the...