Cunningham v. Memphis R. Terminal Co.

• Decision Date: 22 June 1912
• Parties: CUNNINGHAM v. MEMPHIS R. TERMINAL CO.
• Court: Tennessee Supreme Court

Page 103

149 S.W. 103

CUNNINGHAM v. MEMPHIS R. TERMINAL CO.

Supreme Court of Tennessee.

June 22, 1912.

Certiorari to Court of Civil Appeals.

Condemnation proceedings by the Memphis Railroad Terminal Company against James Cunningham. From the sustaining of a motion by plaintiff to dismiss the proceedings, defendant appealed to the Court of Civil Appeals, and from a judgment therein sustaining the circuit court brought the case to the Supreme Court by certiorari. Reversed and remanded, with directions.

McKellar & Kyser, for plaintiff in error. Fitzhugh & Biggs, for defendant in error.

NEIL, J.

This was an application in the circuit court of Shelby county by the defendant in error to dismiss its proceedings for condemnation of certain property owned by the plaintiff in error, after the condemnation proceedings had reached such a stage as that a jury of view had been appointed to assess the value of the property, had made such assessment, had reported fixing the value of the property at $10,000, and after an order had been entered confirming the report of the jury, and after an appeal from this finding by the defendant in error to the circuit court for a trial before a regular jury upon the subject of damages. It also appears that this motion was made after the defendant in error had given a bond in double the amount of the finding of the jury of view, payable to plaintiff in error; and also an ordinary appeal bond in the penalty of $250. The first mentioned bond was somewhat inartificially worded, but the court thinks it was substantially such as was required by Shan. Code, §§ 1863, 1865, quoted infra.

The trial judge sustained the motion to dismiss, and the plaintiff in error excepted and prayed an appeal to the Court of Civil Appeals. That court sustained the trial judge, and the case was then brought to this court by writ of certiorari.

The motion to dismiss was first made on the 3d of December, 1909, which was during the November term of that year, and was supported by affidavits to the effect that the purposes for which the company was formed had become impossible, owing to its inability to make contracts with certain ten railroad companies which it purposed to serve, and without whose patronage it could not act at all. The motion was at the time refused by the trial court. Afterwards, on the 17th of December, 1910, which was during the November term of that year, the defendant in error renewed its motion. The matter was set down for argument by the trial court on the evidence, and the case was heard before him. The plaintiff in error insisted that the defendant in error by the execution of the bond first mentioned had acquired the right, under the statute, to take possession of the property, and, under the decree of the court, had become the owner of the property, and that it had in fact taken possession, and he submitted considerable evidence on the subject of possession. The defendant in error insisted that the purposes for which the company had become organized had become impossible of execution by reason of its inability to make contracts with the railroad companies. Defendant in error also denied that it had become the owner of the property or had taken possession.

As to whether the railway company became the owner of the property by reason of the proceedings having reached the stage mentioned, this is a question of law, and will be presently considered. Upon the questions of fact stated we find from the evidence that the defendant in error had failed to secure contracts with the railroads referred to; also, that it had never taken possession of the property. This latter point, as to the possession, is much disputed in the evidence, but we do not deem it necessary, in this opinion, to go into a discussion of the subject. Suffice it to say that we have read the entire record, and are fully convinced that the conclusion we have stated is the true one.

The provisions of our statutes applicable to this case appear in the following sections of Shannon's Code, viz.:

"1845. The party seeking to appropriate such land shall file a petition in the circuit court of the county in which the land lies, setting forth, in substance: (1) The parcel of land a portion of which is wanted, and the extent wanted; (2) the name of the owner of such land, or, if unknown, stating the fact; (3) the object for which the land is wanted; (4) a prayer that a suitable portion of the land may be decreed to the petitioner, and set apart by metes and bounds.

"1846. Notice of this petition shall be given to the owner of the land, or, if a nonresident of the county, to his agent, at least five days before its presentation."

"1848. All parties having any interest in any way in such land may be made defendants, and the proceedings will only cover and affect the interest of those who are actually made parties, unborn remaindermen being, however, bound by proceedings to which all living persons in interest are parties.

"1849. After the requisite notice has been given, if no sufficient cause to the contrary is shown, the court shall issue a writ of inquiry of damages to the sheriff commanding him to summon a jury to inquire and assess the damages."

"1855. The jury, before proceeding to act, shall be sworn by the sheriff, fairly and impartially, without favor or affection, to lay off, by metes and bounds, the land required for the proposed improvement, and to inquire and assess the damages.

"1856. The jury will then proceed to examine the ground, and may hear testimony but no argument of counsel, and set apart, by metes and bounds, a sufficient quantity of land for the purposes intended, and assess the damages occasioned to the owner thereby."

"1858. The report of the jury shall be reduced to writing, signed by a majority of the jurors, delivered to the sheriff, and by him returned into court.

"1859. If no objection is made to the report it is confirmed by the court, and the land decreed to the petitioner, upon payment to the defendants, or to the clerk for their use, of the damages assessed, with costs.

"1860. Either party may object to the report of the jury and the same may, on good cause shown, be set aside, and a new writ of inquiry awarded.

"1861. Either party may also appeal from the finding of the jury, and, on giving security for costs, have a trial anew, before a jury in the usual way."

"1863. The taking of an appeal does not suspend the operations of the petitioner on the land, provided said petitioner will give bond with good security, to be approved by the clerk, in double the amount of the assessment of the jury of inquest, payable to the defendants, and conditioned to abide by and perform the final judgment in the premises."

"1865. No person, or company, shall, however, enter upon such land for the purpose of actually occupying the right of way, until the damages assessed by the jury of inquest and the costs have been actually paid; or, if an appeal has been taken, until the bond has been given to abide by the final judgment as before provided."

There are some sections which we have omitted. These contain provisions with reference to the qualification of the jurors, their number, the right of parties in interest to challenge, and the notice to be given to the parties of the time and place of the action of the jury, etc.

We have several cases which, if they do not formulate the proposition, yet are based upon the theory that, where nothing but the assessment of damages is appealed from, the matter only will be affected by the appeal, and the confirmation of the report will in other respects stand, and the petitioner may, by giving bond, take possession of the property and proceed with its work, while in the meantime the litigation on the appeal as to the amount of damages may proceed in the circuit court to its termination. In such a case, when the bond has been given, the right of condemnation of the land involved is regarded as settled, and the litigation as to the damages dissociated therefrom; that is, by such dissociation it takes on the character of a separate litigation for the benefit of the landowner, to enable him to obtain the damages due him.

The dual nature of condemnation proceedings was discussed in the case of Tennessee Central Railroad Co. v. Campbell, 109 Tenn. 640, 75 S. W. 1012.

In that case it appeared that the Tennessee Central Railroad Company in the circuit court of Davidson county brought an action in due form to have a portion of the lands of Campbell set apart for right of way for its railroad over which the road had been located, and to have the damages accruing from this appropriation assessed and adjudged; that defendants denied plaintiff's right to maintain its action for want of power to exercise the right of eminent domain, upon several grounds assumed in the statement; that the circuit judge, upon the preliminary trial of the issues thus made, held that the plaintiff had the right to have the land described in the petition condemned for railroad purposes, and appointed a jury of view to lay it off by metes and...