City of Memphis v. Southern Ry. Co.

• Decision Date: 27 January 1934
• Citation: 67 S.W.2d 552,167 Tenn. 181
• Parties: CITY OF MEMPHIS v. SOUTHERN RY. CO.
• Court: Tennessee Supreme Court

67 S.W.2d 552

167 Tenn. 181

CITY OF MEMPHIS v. SOUTHERN RY. CO.

Supreme Court of Tennessee.

January 27, 1934

Appeal from Circuit Court, Shelby County; Ben L. Capell, Judge.

Proceeding between the City of Memphis and the Southern Railway Company to apportion expenses of improving a railway crossing. From a judgment apportioning expenses, both parties appeal.

Modified and rendered.

Walter Chandler and Longstreet Heiskell, both of Memphis, for appellant.

Ewing King & King and Caruthers Ewing, Jr., all of Memphis, for appellee.

GREEN Chief Justice.

This is a controversy between the city of Memphis and the Southern Railway Company over the liability for the cost of the construction of a bridge or trestle carrying tracks of the railway company over the extension of one of the streets within that city. The trial judge apportioned the expenses between the two parties in a manner which satisfied neither and both have appealed. Certain constitutional questions are raised, and the case has been brought directly to this court.

Prior to ASugust 30, 1921, Linden avenue ran up to the right of way of the Southern Railway on either side. The tracks of the railway at this point rested on a trestle, and the trestle was so built as to prevent the extension under it of a street of proper width at suitable grade.

On the date last mentioned an ordinance was passed by the city for the improvement of Linden avenue, connecting the segments of that street divided as stated, and requiring the railway company to carry its tracks over the intersection thus formed, by a proper structure and at its own expense. On July 13, 1922, the city filed a petition in the court below to condemn a right of way for Linden avenue across the right of way of the railway company at the point mentioned. The railway company filed an answer denying the city's right to condemn and the city's right to require the railway company, at its own expense, to construct the overhead bridge that this improvement would require.

Pending this litigation, the city and the railway company entered into an agreement whereby the overhead bridge was built and certain grading, both for the extended street and the relaid tracks, was done. The expense of this work was shared between the city and the railway company upon a stipulation, in substance, that the ultimate expense of the whole work should be adjudged according to the legal rights of the parties as finally determined in the present suit. Each of the parties is accordingly seeking herein a judgment over against the other.

We are therefore called on to decide whether the city had a right to extend Linden avenue across the right of way of the railway company at this point, and, if so, whether the city had a right to require the railway company to bear the expense, or any part of the expense, necessary to this undertaking.

The first proposition advanced by the railway company is that its property at this intersection was already devoted to a public use, and that the city was without power, in the absence of special statutory authority, to appropriate such property for another public use, under the law of eminent domain. Special statutory authority is not claimed by the city. A general power of eminent domain to take private property for municipal or public use is conferred upon the city of Memphis by several statutes. Chapter 11, Acts of 1879; chapter 163, Acts of 1889; chapter 341, Acts of 1907. The city is likewise authorized by statute to regulate the use of its streets, to open and widen streets, and to lay off new streets, and to regulate the laying of railroad tracks and the passage of railroad cars through the city. Klewer's Digest, § § 445, 580.

The right to establish a highway across a railroad is quite commonly held to be conferred on a municipality by a general grant of power to lay out, open, and extend streets and highways and to condemn land for that object, provided such a taking will not destroy the use of the land for railroad purposes. An incidental interference with railroad use will not defeat this right of the city. If, however, the projection or extension of the highway across the railroad property will destroy or render very difficult its use by the railroad company, the taking will not be permitted except upon specific legislative authority. Lewis on Eminent Domain § 276; Elliott on Railroads (3d Ed.) § 1215; 13 R. C. L. 44; 20 C.J. 611, and see cases collected in a note, 24 L. R. A. (N. S.) 1213.

The principle just noted finds expression in many decisions of this court.

"Where property has been legally condemned or acquired by purchase for a public use, and has been or is about to be appropriated for such use, it cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use, unless the intention of the Legislature that it should be so taken has been manifested in express terms or by necessary implication. " Railroad Co. v. Cemetery Co., 116 Tenn. 400, 94 S.W. 69, 71; Southern Railroad v. Memphis, 126 Tenn. 267, 148 S.W. 662, 41 L. R. A. (N. S.) 828, Ann. Cas. 1913E, 153; Mobile & O. Railroad v. Mayor and Aldermen of Union City, 137 Tenn. 491, 194 S.W. 572; Williamson County v. Turnpike Co., 143 Tenn. 628, 228 S.W. 714.

It requires no argument to show that the taking of the railway company's property at this point for the extension of Linden avenue across the railroad right of way was a taking for a use wholly inconsistent with the use of the right of way for railroad purposes. The clearance required by traffic over the street made it necessary to destroy the structure carrying the tracks of the railway company at this intersection. Street use and railroad use at this point, in view of the street level adopted by the city of Memphis, were absolutely incompatible without a reconstruction of the railway company's property.

We think it must follow that the city, proceeding alone under a general power of eminent domain, was not entitled to a decree of condemnation of the railway company's property at this point for the intersection contemplated. The city must resort to its police power, in addition to its power of eminent domain, if its contentions in this suit are to be maintained.

The determinative question, therefore, is whether the city of Memphis was endowed with police power adequate to justify the ordinance requiring the removal of the old bridge and forcing the railway company to abandon its property or to construct a new bridge at its own expense.

The police power of a city is quite broad under general authority commonly granted in municipal charters, but there are well-established limitations upon this power. Among other things, it is uniformly held that a municipality may not pass an ordinance which conflicts with a statute, or indeed with a legislative policy, of the state.

This limitation was well expressed in Long v. Taxing District, 75 Tenn. (7 Lea) 134, 40 Am. Rep. 55, as follows:

"No implied power to pass by-laws, and no express general grant of the power, can authorize a by-law which conflicts either with the national or State Constitution, or with the statutes of the State, or with the general principles of the common law adopted or in force in the State. Ordinances must be consistent with public legislative policy, may regulate not restrain trade, and must not contravene common right."

The language quoted was based on previous decisions of this court cited in Long v. Taxing District, and the rule embodied in the quotation has since been frequently approved. Katzenberger v. Lawo, 90 Tenn. 241, 16 S.W. 611, 13 L. R. A. 185, 25 Am. St. Rep. 681; Jones v. Nashville, 109 Tenn. 557, 72 S.W. 985; Farmer v. Nashville, 127 Tenn. 515, 156 S.W. 189, 45 L. R. A. (N. S.) 240; State ex rel. v. Bates, 161 Tenn. 211, 30 S.W.2d 248.

Elimination of crossings at grade of public roads and railroads is a matter that has received much consideration by courts and by Legislatures of recent years. Whether, under statutes or under the common law, the state was entitled to require a railroad company, at its own expense, to obviate such crossing by carrying its tracks over or under the public highway, is a question that has been in frequent controversy. Such power of the state has usually been...