Department of Highways v. Stepp

• Citation: 266 S.W. 776,150 Tenn. 682
• Parties: DEPARTMENT OF HIGHWAYS ET AL. v. STEPP.
• Decision Date: 13 December 1924
• Court: Tennessee Supreme Court

266 S.W. 776

150 Tenn. 682

DEPARTMENT OF HIGHWAYS ET AL. v. STEPP.

Supreme Court of Tennessee.

December 13, 1924

Appeal from Circuit Court, Coffee County; R. W. Smartt, Judge.

Condemnation proceedings by the Department of Highways and Coffee County against W. O. Stepp. From judgment for damages assessed by jury of view, defendant appeals. Affirmed.

C. D Lamb of Fayetteville, and Ewell & Ewell, of Manchester, for appellant.

J. D Murphree, of Shelbyville, and Warden & Warden, of Manchester for appellees.

COOK J.

According to the provisions of section 8, chapter 149, of the Acts of 1919, the highway commissioners of Coffee county, by approval of the county court, entered into an arrangement with the state department of highways and public works for the construction of the Dixie Highway across Coffee county.

The department of highways and public works exercising powers conferred by sections 7 and 9 of chapter 149 of the Acts of 1919, relocated some portion of the route previously selected by the county, and as relocated the survey covers 1.58 acres across the land of W. O. Stepp. To appropriate this strip of land for the highway, the state highway department, joined by Coffee county, agreeable to section 9 of chapter 149 of the Acts of 1919, and section 5 of chapter 74 of the Acts of 1917, commenced this proceeding in conformity with the provisions of section 1844 et seq. of Shannon's Code.

Defendant Stepp, contests the right of the state highway department and Coffee county to condemn the land for use of the road. He challenges the jurisdiction of the circuit court upon the ground that chapter 154, Private Acts of 1923, denuded the circuit court of jurisdiction and conferred exclusive jurisdiction upon the county court in all matters pertaining to the condemnation of land for public roads. This Private Act of 1923, relied upon to denude the circuit court of jurisdiction, is limited in its application to Coffee county. The act prescribes procedure that may be adopted by the county road commissioner for the acquisition of necessary rights of way for use in road building. Similar provisions are found in the Public Road Laws since chapter 38 of the Acts of 1881, and probably beyond that. Such acts were intended to simplify the procedure by the county road officials when it was found necessary to open, change, or relocate the county roads. They do not conflict with general laws which provide for taking private property for necessary public use. By the provisions of the act under which the county and state joined in a common purpose to construct this highway, the discretion to select the route and supervise the construction lies in the state highway department, and under the provisions of section 9 of chapter 149 of the Acts of 1919, the county is given power to acquire for the benefit of the state the necessary rights of way, either by purchase or the exercise of the power of eminent domain, and if the counties do not provide the rights of way the state highway department is expressly authorized to condemn land for highway construction. The power of eminent domain may, of course, be directly exercised by the sovereign, or it may be delegated, and when the Legislature does not otherwise prescribe the mode of procedure to be adopted by the state, it should proceed in the manner prescribed by the general law.

The state highway department by authority of the acts of 1917 and 1919, instituted this proceeding. These acts do not prescribe the mode of procedure and must be considered as having been passed with reference to the established mode of procedure under section 1844 et seq., of Shannon's Code. State Highway Department v. Mitchell's Heirs, 142 Tenn. 64, 216 S.W. 336; Williamson County v. Turnpike Co., 143 Tenn. 646, 647, 228 S.W. 714.

The assignments of error which relate to the action of the trial judge overruling the defendant's plea to the jurisdiction of the circuit court cannot be sustained. The state was proceeding in the manner prescribed by law. After dismissal of the plea and demurrer to the jurisdiction in their proper sequence, the defendant filed an answer, in which he denied the right of the petitioners to condemn the land for road purposes. The answer averred that the road as located ran through a field in the rear of his residence and store on a route other than that formerly chosen by the county before the contract with the state highway department, and that this change was not made for the public welfare, but conceived in prejudice, caprice, and malice, and will work irreparable injury to the defendant; and that the attempt to take his land for this new location of the route is "a palpable abuse of power."

A jury was demanded to try the issue presented by the answer. Following the answer, a jury of view was appointed, who went upon the land and assessed the value of the 1.58 acres at $350, and the incidental damages at $250. The defendant excepted to the report, because (1) the court was acting without jurisdiction; (2) for inadequacy of the damages; (3) because there was no public necessity for taking the land. At this point of the proceeding the petitioners joined with the defendant in a motion to set aside the report of the jury of view, and have a jury determine the issue tendered by the answer as to the right of petitioners to condemn. Evidence was submitted upon this as an issue, at the conclusion of which the...