City of Alcoa v. Louisville & N.R. Co.

• Decision Date: 15 January 1925
• Citation: 274 S.W. 1110,152 Tenn. 202
• Parties: CITY OF ALCOA v. LOUISVILLE & N. R. CO.
• Court: Tennessee Supreme Court

274 S.W. 1110

152 Tenn. 202

CITY OF ALCOA v. LOUISVILLE & N. R. CO.

Supreme Court of Tennessee.

January 15, 1925

Appeal from Chancery Court, Blount County; S. O. Houston, Special Chancellor.

Bill by the City of Alcoa against the Louisville & Nashville Railroad Company. From a decree for complainant, defendant appeals. Reversed, and bill dismissed.

HALL J.

The bill in this cause was filed by the city of Alcoa, a municipal corporation, who will hereinafter be referred to as complainant, against the Louisville & Nashville Railroad Company, to enforce a lien upon certain lots or parcels of land situated within the corporate limits of complainant, and composing a portion of the right of way of said railroad company, for grading, paving, and guttering certain streets described in the bill, which run parallel with, and adjacent to, the right of way of defendant; said grading, paving, and guttering of said streets being made in accordance with the provisions of a certain ordinance passed by the board of commissioners of the city of Alcoa pursuant to chapter 18 Public Acts of 1913 (First Extra Session), known as the Abutting Property Law.

The amount for which the lien is sought to be enforced against defendant's right of way is the sum of $1,748.68 and interest. This amount is for paving done on Lincoln road crossing, Aluminum pike, and Hall road.

Defendant answered the bill, denying that it was indebted to complainant, as alleged in the bill, and denied that complainant had a lien on that portion of its right of way fronting upon said streets for the improvements mentioned and described in complainant's bill.

It denied that, under chapter 18, Public Acts of 1913 (First Extra Session), its right of way was liable for any assessment for improvements made by complainant upon its streets pursuant to the provisions of said ordinance and act.

The answer averred that defendant did not own the fee in any of the property against which complainant was seeking to enforce a lien, but only an easement, and that said property was being used exclusively for railroad purposes, that is, for the passage of its trains, and for no other purpose, and that the making of said improvements by complainant upon the streets in question in no way benefited or enhanced defendant's easement in said property, and, therefore said easement or right of way was not subject to assessment for said improvements.

The answer further averred that chapter 18, Public Acts of 1913 (First Extra Session), in so far as it may authorize any assessment against defendant's railroad right of way for street improvement, is unconstitutional and void for the reason that said act gives the municipality a lien against the easement or right of way of defendant for a portion of the cost of any improvement that may be made on streets lying adjacent to its right of way, and if the amount assessed against that portion of its easement or right of way lying adjacent to such streets is not paid, the act provides for a sale of such easement or right of way for the payment of said assessment, which cannot be lawfully done for the reason that a railroad company's easement or right of way cannot be segregated and sold in parcels, as complainant attempts to have done under its bill.

The cause was finally heard upon the pleadings and proof by Hon S. O. Houston, special chancellor, on May 12, 1924, when a decree was rendered against defendant for $1,748.68, the principal amount of said assessment, and the sum of $211.84 interest, or the total sum of $1,960.52, which sum was declared a lien on the several parcels of defendant's right of way abutting on the streets improved, for the satisfaction of said decree, and it was provided that, unless said decree was paid by defendant, the master advertise said parcels of defendant's right of way described in the decree according to law and sell the same on a credit of 6 and 12 months, and in bar of the equity of redemption. From this decree, defendant has appealed and assigned errors.

Through its first assignment of error, it is insisted by defendant that the special chancellor erred in holding that any portion of its railroad right of way was liable for the special assessment made by complainant for the improvement of the streets in question under the ordinance passed by complainant pursuant to the provisions of chapter 18, Public Acts of 1913 (First Extra Session).

Through its second assignment of error, defendant insists that the special chancellor erred in holding and decreeing that complainant was entitled to a lien upon the portions or parcels of its railroad right of way abutting on and lying adjacent to the streets improved.

Through its third assignment of error, defendant insists that the special chancellor erred in not sustaining defendant's contention that its right of way was only being used for the passage of its trains and exclusively for railroad purposes, and was in no way benefited or enhanced in value by the improvement of the streets on which its right of way abutted.

Through its fourth assignment of error, defendant insists that the special chancellor erred in awarding a decree against it for the sum of $1,960.52, as its proportional part of the costs of said improvements.

There is no dispute as to the facts. Nor is the contention made by defendant that there was not a substantial compliance by complainant with the provisions of chapter 18, Public Acts of 1913 (First Extra Session), in improving the streets in question.

Section 2 of that act provides:

"That when the legislative body of a municipality shall determine to construct any improvement authorized by the preceding section, two-thirds of the cost of which is to be assessed against the property abutting or adjacent to the street, highway, avenue, alley, or other public place to be improved, it shall adopt an ordinance that such improvement or improvements shall be made, which ordinance shall describe the nature and extent of the work, the character of material or materials to be used, the location and the terminal points of the proposed improvements, and the streets, alleys, highways, or other public places, or part or parts thereof, on which such improvements are to be made, and which shall direct that full details, drawings, plans, specifications, and surveys of said work and estimates be prepared by the city engineer, or such other person as may be designated in such ordinance; or the said legislative body may adopt plans for such work already prepared.

Such details, drawings, plans, specifications, and estimates shall, when completed, be placed on file in the office of the city engineer, or other official designated in such ordinance, where the property owners who may be affected by such improvement may see and examine same; and the said ordinance shall appoint a time when the legislative body of such municipality shall meet, which shall not be less than two weeks after the date of the first publication of notice of said ordinance, to hear any objections or remonstrance that may be made to said improvement, the manner of making same, or the character of material to be used. Notice of the adoption of such ordinance shall be given by publishing a notice once a week for two consecutive weeks in some newspaper of general circulation in said municipality.

It shall not be necessary to set out in full in such notice said ordinance, but such notice shall state the character of such improvement of improvements, the location and terminal points thereof, and also the time and place, not less than two weeks from the date of first publication of the notice, at which the legislative body of such municipality shall meet to hear remonstrances or protests against the making of...