City of Harriman v. Southern Ry. Co.

• Decision Date: 30 August 1904
• Citation: 82 S.W. 213,111 Tenn. 538
• Parties: CITY OF HARRIMAN v. SOUTHERN RY. CO.
• Court: Tennessee Supreme Court

82 S.W. 213

111 Tenn. 538

CITY OF HARRIMAN v. SOUTHERN RY. CO.

Supreme Court of Tennessee.

August 30, 1904

Appeal from Chancery Court, Roane County; Hugh G. Kyle, Chancellor.

Suit by the city of Harriman against the Southern Railway Company. A decree of the chancellor for complainant was affirmed by the Court of Chancery Appeals, and defendant appeals. Affirmed.

H. N Carr and Jourolman, Welcker & Hudson, for appellant.

S. C Brown and R. B. Cassell, for appellee.

McALISTER J.

This bill was filed by the municipality of Harriman to compel the Southern Railway Company by mandatory injunction to build a bridge or viaduct across its main track on Roane street where the latter crosses the track of the railway 22 to 24 feet above the grade. The bill alleges that complainant is a municipal corporation; that the Southern Railway owns and operates a line of road which runs through the corporate limits of said city for a distance of 1 3/4 miles; that among the enumeration of powers granted complainant in its charter are included the power to require railroad companies to construct at their own expense bridges over their tracks where same cross or extend along public highways or streets that Roane street crosses the track of defendant railway company at a point about midway between the main section of the city of Harriman and that part of said municipality known as "Walnut Hill," and at the intersection of said street with defendant's lines of railway in the city of Harriman there is, and has been for years, a bridge over defendant's railway track, which is located in a deep cut; the bridge has been in continual use for many years, and is the only means the public have of crossing the same in traveling said street, and is about 22 feet above the grade of the railroad; that said bridge is a public necessity, and the only means by which the public can cross said track in traveling said avenue; that the defendant railway company has been exercising ownership and control over said bridge, which is now in need of repairs, and has become in such condition that it is dangerous for the traveling public, and has been so since October 8, 1902; that in that condition of affairs on October 13, 1902, the board of mayor and aldermen passed an ordinance requiring defendant company to build a new bridge at said point. The bill prays for a mandatory injunction to compel the erection of said bridge. An answer was filed by the company denying all the principal allegations of the bill. Proof was taken, and the chancellor decreed in favor of the complainant, granting the full relief sought. On appeal the Court of Chancery Appeals affirmed the decree of the chancellor. Defendant has again appealed, and two assignments of error are filed:

First. The Court of Chancery Appeals erred in decreeing that complainant was entitled to the relief sought by the bill, and that the city of Harriman has authority under its charter to require railroad companies to construct bridges or viaducts over their tracks, and to require defendant railway company to construct a bridge over its tracks where Roane street is now located, and in granting a mandatory injunction requiring the Southern Railway Company to build a bridge over the railroad track upon Roane street in the city of Harriman, and in adjudging that defendant company pay the costs.

Second. That the court erred in decreeing that the defendant company should construct a bridge, because there were no plans or specifications embodied in the ordinance in question, or accompanying the same.

The facts found by the Court of Chancery Appeals are substantially as follows:

The city of Harriman was incorporated by an act of the Legislature passed March 2, 1891, approved March 6, 1891. Acts 1891, p. 93, c. 49. Among the powers conferred by the act upon the city it was given authority "to regulate the use of locomotive engines; to direct and control the location of cable and other railroad tracks; and to require the railroad companies to construct at their own expense such bridges and approaches, tunnels, or other conveniences at public crossings, and such viaducts and their approaches over their tracks where the same cross or extend along public highways or streets, and to put such streets in such condition and state of repair as not to interfere with the free and proper use of said streets or crossings, as the city council may deem necessary; and where a viaduct or viaducts cross the tracks of such railroad companies, to compel them to build their portion of a continuous viaduct or viaducts over said tracks with their approaches; and to regulate the rate of speed of all railroad trains within the city, and their stops at said crossings." That court further finds that 10 years or more ago, when the city of Harriman was laid out, it projected what was known as Roane street or avenue across a deep cut 20 or 24 feet deep where the railroad tracks were laid. This street being convenient and important to the public in passing from one portion of this city to another, a bridge or viaduct was constructed over this cut by private subscription. It appears that the city of Harriman paid the contractor a balance of $30 due on his contract, which he was unable to collect from the subscribers. Since that time the city has made some repairs on the bridge, so as to make it safe, or reasonably safe, for the public to use it. The proof shows that at this time the bridge, on account of its aged condition, has become manifestly unsafe for use by the public. The city authorities demanded that the railroad company should build a new bridge at said point, or repair the old one so as to make it safe. Defendant company declined to make said improvement, claiming that it was not responsible for the existence of said bridge, nor for its condition, and hence was under no obligation to keep it in repair or to build a new one to replace it. To meet this exigency, the board of mayor and aldermen of the city on the 13th of October, 1902, passed the following ordinance:

"An ordinance to require the Southern Railway Company to construct at its expense a viaduct or bridge over its railway track where the same crosses Roane street or avenue in the city of Harriman, Tennessee:

"Section 1. That said Southern Railway be and is hereby required to construct at its own expense a viaduct or bridge over its railroad track where the same crosses Roane street or avenue in the city of Harriman, Tennessee.

"Sec. 2. That the said viaduct or bridge shall be built of good, sound material, and constructed in a substantial and workmanlike manner, with its middle line on the middle line of said street or avenue, at the usual or necessary height over said railway track, and shall have the necessary approaches the full width of the bridge, so as to put said street crossing in such condition and state of repair as not to interfere with the free and proper use of said crossing by the public. Said viaduct or bridge shall be wide enough for a full road-way and foot-way thereon, properly separated by a suitable railing, and completed within sixty days from the publication and service of this ordinance.

"Sec. 3. That upon the passage and publication of this ordinance, the city clerk is hereby required to serve upon the agent of said Southern Railway Company at Harriman, Tennessee, a certified copy of this ordinance, and if, within sixty days thereafter, said company shall fail to construct said viaduct or bridge herein required, the city attorney is hereby directed to institute proper legal proceedings to enforce a compliance with this ordinance.

"Sec. 4. That all ordinances and parts of ordinances in conflict with this ordinance are hereby repealed, and this ordinance shall take effect from and after its publication, the public welfare

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