Callahan v. Town of Middleton

• Decision Date: 25 May 1954
• Citation: 41 Tenn.App. 21,292 S.W.2d 501
• Parties: M. L. CALLAHAN, Defendant-in-Error, v. The TOWN OF MIDDLETON, Plaintiff-in-Error. 41 Tenn.App. 21, 292 S.W.2d 501
• Court: Tennessee Court of Appeals

Page 501

292 S.W.2d 501

M. L. CALLAHAN, Defendant-in-Error, v. The TOWN OF MIDDLETON, Plaintiff-in-Error.

41 Tenn.App. 21, 292 S.W.2d 501

Court of Appeals of Tennessee, Western Section.

May 25, 1954 Certiorari Denied by Supreme Court Oct. 8, 1954.

[41 TENNAPP 24] E. J. Harris, Bolivar, for plaintiff in error.

H. T. McCaslin, W. J. Savage, Jr., and H. B. Denton, Bolivar, for defendant in error.

AVERY, Judge.

This suit originated in the Circuit Court of Hardeman County, Tennessee. It is an original suit brought by defendant-in-error, plaintiff below, M. L. Callahan, hereinafter designated as plaintiff, on May 3, 1952, [41 TENNAPP 25] against the Town of Middleton, Hardeman County, McDade and McDade, a contracting firm and C. W. Bond, Commissioner of Highways and Public Works of the State of Tennessee, by which the plaintiff seeks to recover damage of the defendants for the taking of certain real estate belonging to the plaintiff, located in the Town of Middleton, Hardeman County, Tennessee, to be used for street or highway purposes.

The declaration in its original form is in three counts, but plaintiff, by proper motion was granted permission to amend the declaration by striking the entire third count. Though the summons ran against all of the parties above named, the declaration ran against the Town of Middleton only.

Briefly, the declaration alleges that plaintiff owned real estate in the Town of Middleton known as Rainbow Inn Cafe, the lot being located on the east side of the principal north and south street, which street is designated as Main Street and also as State Highway No. 125. The place of business was operated as a drive-in restaurant, and that in the spring and summer of 1952 the State of Tennessee through its Department of Highways and Public Works undertook to and did widen said Highway No. 125 through said town, by and with the knowledge and authority of said municipality and that in so doing the defendant took a strip of his real estate including a sufficient amount for sidewalks, built a sidewalk across the entire front leaving a space or grass plot several feet wide between the walk and curb, changed the grade or level of the street, blocked plaintiff's front entrance, erected a concrete curb, cutting his business off from the street and confiscated his property, for public use, to his damage of $20,000.

[41 TENNAPP 26] The municipality filed a plea of not guilty. A plea undertaking to set up the use of the land taken for street and road purposes, adverse to plaintiff and his predecessors in title, and that the public had obtained the property by prescriptive right. Also a plea that the property had been dedicated to the municipality for street purposes for many years prior to the suit.

A replication was filed to the plea which denied the adverse possession, prescriptive and dedicative allegations.

The case was tried to a jury on January 15, 1953, and on January 16, 1953 the jury returned a verdict by which they found the issues in favor of the plaintiff and against the defendant and fixed the damages at $1,500, and judgment for that amount was rendered against the defendant and in favor of the plaintiff. On a motion for new trial the court approved the verdict, overruled and disallowed the motion and the defendant excepted to the action of the court, prayed and perfected its appeal to this Court, and has assigned errors.

The defendant assigned two errors, the first of which contains three grounds. The first assignment is simply that 'It was error for the Trial Judge to overrule the defendant's motion made at the conclusion of the introduction of all of the evidence for the direction for the jury to return a verdict for the defendant. This was error for the following reason: (a) There is no material evidence to support the verdict. (b) Because the plaintiff below waived and is estopped to claim any damage for right of way for said Highway No. 125 in front of his property. (c) Because the evidence conclusively shows that the plaintiff below did not own the land for which [41 TENNAPP 27] he sues or any part thereof, and that the said land had been used by the public, as a matter of right for more than fifty years; and that the said land had been dedicated for the use of the public as a public street for many years prior to the institution of this suit.'

The second assignment of error is that: 'The evidence preponderates against the verdict of the jury.'

The second assignment of error can be very easily disposed of. This Court is not concerned with the preponderance of the evidence. If there is any material evidence to support the verdict of the jury it is the duty of this Court to sustain the verdict of the jury and judgment of the court thereon. Accident & Casualty Ins. Co. v. Lasater, 32 Tenn.App. 161, 165, 222 S.W.2d 202; De Rossett v. Malone, 34 Tenn.App. 451, 239 S.W.2d 366, and numerous authorities not necessary to refer to.

The first assignment of error, and the grounds set out thereunder necessitates a review of both the facts and the law governing the issues to be determined in this case. This assignment of error is based upon grounds No. 1, 3 and 6 set out in defendant's motion for a new trial.

The exact controversy is not in the taking of the land or property which plaintiff insists is a part of the Highway No. 125. It is a strip which plaintiff contends was taken by the City of Middleton as a walkway or sidewalk and a grass plot. It is, therefore, proper to set out in this opinion an exact statement from count 1 of the plaintiff's declaration as follows:

'That plaintiff, however, gave the State authorities permission to encroach on his said lot to the extent necessary to widen said street or highway where [41 TENNAPP 28] the same would be uniform in width throughout the town, that the said street or highway was so widened, and that plaintiff asked no compensation for the land he thus donated.

'That thereafter on or about May 1, 1952 the defendant, the Town of Middleton, acting through its mayor, John Wilson, and its Board of Aldermen apparently in accordance with the authority granted by its act of incorporation 'to open, improve, or extend streets, sidewalks, alleys and public squares' procured the curbing of said street or Highway No. 125 in front of plaintiff's place of business, and further encroached upon plaintiff's said lot by constructing a public sidewalk across the entire front thereof some distance east of the curb or margin of said street or highway as widened, leaving a grass plot several feet wide between the curb and said sidewalk, thereby changing the grade or level of the street, blocking plaintiff's front entrance, and illegally confiscating property and land of the plaintiff without compensating him thereof (therefor), after demand was made for compensation.'

This sidewalk and grass plot are approximately 10 ft. deep or wide across the entire front of the lot upon which plaintiff owns the building and operates Rainbow Inn.

It is insisted by the plaintiff that the street proper was to be only 40 ft. in width from curb to curb; that the distance from the street curb to the wall of his building is 16 ft., of which 16 ft. the sidewalk and the grass plot tool 10 ft. Tr. 18.

It is admitted by the plaintiff that he was one of a three-man committee to obtain deeds for the right of way [41 TENNAPP 29] of said highway, and that in doing so, that committee had with it the plans submitted by the State Highway Department for the construction of what is referred to as State Aid Project No. _____ Section _____, which plan called for only 40 ft. in the right of way through the Town of Middleton. On the other hand it is insisted by the defendant that the plan proposed called for a right of way 60 ft. wide through the Town of Middleton.

On the trial of the case exhibit to the testimony of Claude A. Carter, County Judge for Hardeman County, is several sheets of the plan and profile of the proposed project, with particular emphasis to page 7 and page 2 of these plans. At page 2 there is shown a typical cross-section of the improvement outside the Town of Middleton and a 'typical cross-section of improvement inside Middleton (Sta.) 238 plus 70 to (Sta.) 268 plus 77.' This cross-section inside Middleton shows that the traveled street section, or from curb to curb is 18 ft. on each side of the center line, with a curb 2 ft. 6 in. on each side of the street, thus actually making the curb and street proper 41 ft. in width. This cross-section further shows that there is an anticipated future construction of a grass plot and a sidewalk on either side of said street and on the outside of the curb, the grass plot shown to be between the sidewalk and the curb of the highway. In the space designated 'future sidewalk' there are the figures 6' and in the space designated as 'future grass plot' are the figures 3'6". The cross-section, therefore, shows that the plans and profile as drawn contemplated some future construction of the sidewalk and grass plot after completion of the highway or street and curb, the whole area to be 60 ft. wide. Throughout this plan the area within the Town of Middleton was shown, between (Sta.) 238 plus [41 TENNAPP 30] 7 and (Sta.) 268 plus 77 on three sheets or pages numbered 6, 7 and 8. The street-highway plan is shown, the grass plot and concrete sidewalk is shown, each with the width hereinabove set out at every point within the city limits. However, in large printed letters on each of said three sheets there appears the following:

'Note: Sidewalks and conc. driveways are not to be constructed under S.A.P.' (State A Project)

Immediately following the above quote, printed in red pencil are the words 'See Sheet #2.'

It is necessary to show the above in this opinion because of the fact that the Town of Middleton, the defendant, contends that it did not take the sidewalks and grass plots, but that the contractor for the State and the...