Colcough v. Nashville & Nw. R.R. Co.

• Decision Date: 31 December 1858
• Citation: 39 Tenn. 171
• Parties: JOHN COLCOUGH v. THE NASHVILLE AND NORTHWESTERN RAILROAD COMPANY.
• Court: Tennessee Supreme Court

39 Tenn. 171

JOHN COLCOUGH

v.THE NASHVILLE AND NORTHWESTERN RAILROAD COMPANY.

Supreme Court of Tennessee.

December Term, 1858.

FROM DAVIDSON

This cause was tried upon demurrer, at the May term, 1858, Baxter, J., presiding. The demurrer being sustained, the plaintiff appealed.

Woods & Merritt, for the plaintiff.

The plaintiff's right to compensation is admitted by the argument. The question is how it is to be enforced. If the act of incorporation had provided for the assessment of damages, it is admitted, that under our decisions, the mode pointed out by the State must be followed to the exclusion of the common-law remedy. But it is insisted for the plaintiff that no mode is pointed out by the statute for anything but the freehold; (see Charter, Acts of 1851-52, pp. 88, 89), and, therefore, either the act is unconstitutional, as failing to provide for the payment of the “just compensation,” as the New York decisions and many in the New England States decide, or else the party is to be permitted to look to the general principles of the common law for the enforcement of an admitted right. If this be so, assumpsit is the only remedy, as the company in the appropriation of this land was in the lawful exercise of a right delegated to it by the Legislature, and was in no sense a trespasser or wrong-doer. Woodfolk v. Nashville and Chattanooga Railroad Company, 2 Swan. The origin and history of the action of assumpsit show that this case is embraced in its principles, and is a fit one for their application.

Ewing & Cooper, for the defendant.

The remedy given to persons for damages arising from the seizure of land by the railroad is very broad, and, as explained in the case of Woolfolk v. Nashville and Chattanooga Railroad Company, reported in 2 Swan,--,embraces the value of the land seized by the road, as well as the incidental damages to the remaining portion. The Legislature evidently, by the provisions of that act, intended to give a full remedy to all owners of land who were injured by a proper and legitimate construction of the road, and, at the same time, give a right of way in fee simple to the railroad company when the damages were paid. If lessees for years are not embraced, then the railroad company could not legitimately seize land thus held--they can get no title to such land by any proceeding under their charter, and their whole enterprise would be balked. We insist, on the contrary, that the words “owners of land” used in the statute, means all owners, whether in fee for life, or for years. That in a proceeding for damages by a seizure of land, all of these owners must, or at least may be included in the petition for relief, and separate damages given to each by the jury in their report, or they may be apportioned by the court on final hearing.

Such is the construction given to similar statutes in other States of the Union. 5 Metc. --; 22 Penn. 29;15 Pick. 198; 2 Sandf. 506.

The courts of other States of the Union have also decided that damages similar to those charged in this declaration are included under the word “owners” given in our statutes. Redf. on Rys., p. 180, and notes. It is hardly necessary to affirm that if this plaintiff has any remedy given him under the charter of incorporation to defendants, that this remedy is necessarily exclusive, and that no other could be pursued.

McKinney, J., delivered the opinion of the court.

This was an action of assumpsit. The case comes upon demurrer to the declaration, which was sustained in the court below.

The gravamen of the action, as alleged in the...