Humes v. Mayor

• Decision Date: 31 July 1839
• Citation: 20 Tenn. 403
• Parties: HUMES AND WILLIAMS v. MAYOR AND ALDERMEN OF KNOXVILLE.
• Court: Tennessee Supreme Court

20 Tenn. 403

HUMES AND WILLIAMS

v.MAYOR AND ALDERMEN OF KNOXVILLE.

Supreme Court of Tennessee.

July, 1839.

William Williams and Thomas W. Humes instituted an action of trespass on the case in the circuit court of Knox county, on May 30, 1838, against the mayor and aldermen of Knoxville. At the June term, 1838, the plaintiffs filed their declaration, in which they averred that they “at the time of the grievances afterwards mentioned were and still are the owners of a remaining interest in and to a certain lot of ground, with a stable thereupon, situate and being in the town of Knoxville, on Prince Street in said city, southwest of the intersection of said street by Main street, and known in the plan of said town as lot No. --, now in the possession and occupation of James Williams, tenant thereof to the said plaintiffs; yet the said defendants, well knowing the premises, but contriving and unjustly intending to injure, prejudice, and aggrieve the said plaintiffs in their reversionary interest and estate in the said premises, with the appurtenances, and while the said plaintiffs were so interested as aforesaid, to wit, on the 15th day of May, 1837, and on divers other days and times between that day and the commencement of this suit, wrongfully and unjustly, and without leave of and against the will of said plaintiffs, did cause the said Prince street, in front of and adjoining to said lot of ground, with the appurtenances thereon, as before described, to be dug down and moved away, so that thereby the foundations of said stable were greatly injured and impaired, and whereby the said plaintiffs were hindered from renting the same as profitably to themselves as they would otherwise have done,” etc.

The defendants pleaded: 1st. Not guilty. Upon which plea issue was joined. 2d. “That by the acts of the legislature of the State of Tennessee the town of Knoxville is an incorporated town, and that the said defendants, by virtue of the powers vested in them as the mayor and aldermen of the said town, have the right and power, and had at the time of the alleged grievances in the plaintiff's declaration mentioned, to order and direct the improvements of the public streets in the town of Knoxville, and in virtue of their authority as mayor and aldermen, and acting as such, did cause the said street to be excavated, dug, and graded, it being a public street in said town, in order to improve said street, and in so doing did in some measure reduce the said street below the doors and entrances into the said stable in the declaration mentioned, as they lawfully might, which are the grievances mentioned in the plaintiff's declaration.”

The plaintiffs demurred to this plea, and the defendants joined in demurrer.

This demurrer came on for argument before Judge Scott at the December term, 1839, and, being heard, the demurrer was sustained. The issue of fact was submitted to a jury at February term, 1839, Judge Keith presiding.

It appeared in evidence that one Ethelred Williams was the owner of the lot and stable thereupon situate on Prince street, in the town of Knoxville, and that he had made a deed for the same to William Williams, his son, and his daughter, Cornelia, who had intermarried with plaintiff Humes. It further appeared that James Williams had been in possession of the lot, and was in possession of the same at the commencement of the suit, which was used both as a stable and granary, and was of the value of $800, and that it was situated on the street on the outermost verge of plaintiff's lot.

It further appeared that this street was in a very bad condition, and that, some improvement of it being absolutely necessary for the convenience of the public, in the judgment of the mayor and aldermen, an order was passed by the board directing an excavation and grading of the street as near at and along the edge of the lot as was necessary to effect the purposes of the public; that, in complying with this order, James Park, the duly authorized agent of the corporation, did excavate and grade the street in front of the stable of plaintiffs, leaving eight feet from the street to the...