City of Knoxville v. Heth

• Decision Date: 28 February 1948
• Citation: 210 S.W.2d 326,186 Tenn. 321
• Parties: CITY OF KNOXVILLE v. HETH et al.
• Court: Tennessee Supreme Court

210 S.W.2d 326

186 Tenn. 321

CITY OF KNOXVILLE v. HETH et al.

Supreme Court of Tennessee.

February 28, 1948

Error to Circuit Court, Knox County; John M. Kelly, Judge.

Condemnation proceeding by the City of Knoxville against Jeannette C. Heth and others. The proceeding was dismissed, and the plaintiff brings error.

Reversed and remanded with directions.

Donaldson, Montgomery & Kennerly, of Knoxville for plaintiff in error.

S. B Campbell, of Wytheville, Va., and Cates, Fowler, Long & Fowler, of Knoxville, for defendants in error Jeannette C Heth, Hamilton Bank and J. B. & W. G. Brownlow.

H. T. Kern, of Knoxville, for defendants in error Geo. Cavalaris and Geo. Kotsianas.

BURNETT Justice.

In this suit the City of Knoxville, a municipal corporation, acting by and through the Knoxville Utilities Board, a corporate agency of said municipality, seeks to condemn the real property, a business building adjoining the petitioner's general administrative offices, of the defendants by exercise of the right of eminent domain. We will refer to the City of Knoxville as the 'City'; to the Knoxville Utilities Board as the 'Board', and the property owner and those interested therein as the 'Defendants'.

The petition was filed pursuant to Code Sections 3109-3130, inclusive, these being the Code sections prescribing the procedure for the taking of private property for works of internal improvement.

In substance it is alleged that the City owns and operates an electric system, water system and gas system pursuant to statutory authority and that the Board is charged with the management of these combined systems.

The right of the City to acquire and hold real estate, to erect buildings thereon and other improvements necessary for public purposes, and to condemn property needed for public buildings is alleged under applicable statutory enactment.

The City further says that 'in the construction, maintenance and operation of its electric, water and gas works, plants and systems and as an essential and integral part thereof, (it) maintains offices where persons administering said system work, where records, supplies and equipment are kept, where bills are paid, where the Board meets and where the general management of said systems is carried on.' It is said 'that the principal offices of the Board have been maintained in a building at the northeast corner of Gay Street and Church Street in Knoxville. That the expansion of the operations of the Board's activities has been such as to make the present offices totally inadequate so that the acquisition of additional space for said offices is necessary. That public convenience and economy require that such additional space for offices be secured adjacent to the present principal offices of the Board so that said offices can be operated as a unit and so that the present offices may be continued to be used as a part of such unit, and that accordingly it is necessary, desirable and proper that the City acquire the tract of land sought to be condemned for use as a public building and structure which will constitute an essential part of the City's electric, water, and gas works, plants and systems.'

The Board by a duly and properly adopted resolution authorized this action for the reasons substantially as above set out.

The Defendants demurred to this petition on eighteen separate grounds which are grouped or summarized by the City thus:

'(1) Under the State Constitution and under the Federal Constitution, the condemnations of property for the purposes sought by the present suit is prohibited, so that any statute purporting to authorize the City to condemn property for these purposes is a nullity.

'(2) The statutes giving the City the right to condemn property do not give the City the authority to condemn property for the purposes sought by the present suit.

'(3) The City is not using the proper condemnation procedure by bringing the present suit, and the City has not satisfied all requirements that are necessary to authorize the institution of such a condemnation suit.'

The trial court sustained seven grounds of the demurrer. One of these was cured before judgment by the filing of the resolution of the Board heretofore referred to. The underlying reason for the grounds sustained was that the property sought to be condemned was not an appropriation for a public purpose but was a taking for a private use. The suit was dismissed and this appeal resulted. The Defendants also assign error here to the action of the trial court in overruling their other grounds of demurrer.

'Eminent domain is the right or power to take private property for public use; the right of the sovereign, or of those to whom the power has been delegated, to condemn private property for public use, and to appropriate the ownership and possession thereof for such use upon paying the owner a due compensation.' 29 C.J.S., Eminent Domain, § 1.

The key to the instant litigation is whether or not the proposed taking is for a 'public use'. This presents a 'judicial question, confided by the people to their courts, to insure a practical enforcement of this constitutional guaranty to the citizen. But where the taking is for a public use, the only remaining restriction on the sovereign power is to pay the fair and reasonable value of the property taken, generally denominated 'just compensation." Southern Railroad Co. v. Memphis, 126 Tenn. 267, 281, 282, 148 S.W. 662, 665, 41 L.R.A.,N.S., 828, Ann.Cas.1913E, 153; Federal Constitution, 5th Amendment; Tennessee Constitution, Article I, Section 21.

The determinations of 'public use' by the state or its agencies are entitled to great weight or respect by the courts, since they relate to matters which should and must have been known by the legislative branch. New York City Housing Authority v. Muller, 270 N.Y. 333, 1 N.E.2d 153, 105 A.L.R. 905.

The term 'public use', as here used, is not capable of exact definition, but is elastic, in order to keep pace with changing conditions. The cases on the subject are legion. Many will be found in an annotation in 54 A.L.R. 7 to 45, inclusive. In our judgment the best approach to the question is to be found in the following excerpt from Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834, 840: 'On the whole, although the cases on this subject in Pennsylvania have been comparatively few in number, it may fairly be stated that, while firmly maintaining the principle that private property cannot be taken by government for other than a public use, they justify the conclusion that judicial interpretation of 'public use' has not been circumscribed in our State by mere legalistic formulas or philological standards. On the contrary, definition has been left, as indeed it must be, to the varying circumstances and situations which arise, with special reference to the social and economic background of the period in which the particular problem presents itself for consideration. Moreover, views as to what constitutes a public use necessarily vary with changing conceptions of the scope and functions of government, so that to-day there are familiar examples of such use which formerly would not have been so considered. As governmental activities increase with the growing complexity and integration of society, the concept of 'public use' naturally expends in proportion.' It is such a well recognized principle that the generation and distribution of electric current, supply of water and gas to the people is a 'public use' we do not deem it necessary to cite authority therefor. The only question, therefore, is whether or not the land sought to be condemned is such 'an essential and integal part thereof' as to make its use a 'public use'.

In Nichols v. Central Virginia Power Co., 143 Va. 405, 130 S.E. 764, 767, 44 A.L.R. 727, it was well said: 'It is difficult at times to observe the line of demarcation between private benefit and public use. When the two are thus so blended--1 'the judicial practice in such cases is to approve the undertaking if it is capable of furthering a public use, and disregard the private benefit as a mere incident.''

It is conceded that the City in its operation of the utilities herein does so in its proprietary or individual capacity rather than in its legislative or governmental capacity. It is thus governed, for the most part, by the same rules that control a private, individual or business corporation. 4 McQuillin, Mun. Corp. p. 3836; Memphis Power & Light Co. v. City of Memphis, 172 Tenn. 346, 112 S.W.2d 817. With this statement of the law as a premise the trial court apparently concluded that the City had no more rights herein than a private business concern would have. This is fallacious because there are many instances when a city or municipality thus acting may acquire property for a 'public use' when a private enterprise could not. Notable among these, as an illustration, are: Public Market, 18 Am.Jur. pp. 679, 680; 4 McQuillin, Mun.Corp. pp. 532, 533; 1 Lewis, Eminent Domain, 532, 533; Parking lot for automobiles, Miller v. City of Georgetown, 301 Ky. 241, 191 S.W.2d 403; Cemetery purposes, 10 Am.Jur. pp. 494, 495. We have read numerous cases under these instances. The reasoning of the various courts differs. Be that as it may the above illustrations are instances where a municipality acting in a proprietary capacity has been granted the right of eminent domain.

Common sense and reason dictate to us that in matters of this kind, a much broader latitude should be given a municipality, even in its proprietary function, than is given a private corporation or individual. As was said by Mr Justice Holmes, speaking for the Court in Springfield Gas & Electric Co. v. City of Springfield, 257...