Illinois Cent. R. Co. v. Moriarity

• Citation: 186 S.W. 1053,135 Tenn. 446
• Parties: ILLINOIS CENT. R. CO. ET AL. v. MORIARITY ET AL.
• Decision Date: 10 June 1916
• Court: Supreme Court of Tennessee

186 S.W. 1053

135 Tenn. 446

ILLINOIS CENT. R. CO. ET AL. v. MORIARITY ET AL.

Supreme Court of Tennessee.

June 10, 1916

Certiorari to Court of Civil Appeals.

Action by J. H. Moriarity and others against the Illinois Central Railroad Company and others. Certiorari to review a judgment of the Court of Civil Appeals affirming judgment for plaintiffs. Judgment affirmed.

Charles N. Burch, H. D. Minor, and Sivley & Evans, all of Memphis for plaintiffs in error.

Evans & McCadden, of Memphis, for defendants in error.

GREEN J.

The defendants in error are the owners of business property on the corner of Main street and Virginia avenue, in Memphis. The premises front on Main street, which runs north and south, 42 1/2 feet, and extend back along Virginia avenue which runs east and west, 100 feet.

The city of Memphis undertook a scheme to do away with grade crossings in certain sections of the municipality, and in the progress of this work it was necessary that the tracks of the plaintiffs in error at the point where they cross Virginia avenue in the rear of the premises described be elevated above the level of the street several feet. This elevation of the railroad tracks was intended to close, and did close Virginia avenue at this point. The obstruction was at a point on Virginia avenue between Main street and the next parallel street east of Main street. There was a contract between the city and the railroad companies by the terms of which the latter were to pay for damages to property.

This suit was brought against the city of Memphis and the defendant railroad companies to recover damages alleged to have been suffered by the property of defendants in error in consequence of the closing of Virginia avenue at the point mentioned. There was a judgment in favor of the property owners for $3,000, which was affirmed by the Court of Civil Appeals, and the case is before us on petition for certiorari filed by the railroad companies. A nonsuit was taken as to the city in the trial court.

It is first insisted in behalf of the railroad companies that the landowners sustained no special damages for which they are entitled to a recovery; that the damages suffered were only such as were common to other members of the community; and that the case is a proper one for the application of the principle of damnum absque injuria.

The contention of the landowners is that there was a taking of their easement of access or easement of way in Virginia avenue, for which they are entitled to compensation under the Constitution of the state and under the federal Constitution.

For more than 50 years this court has in published opinions recognized the right of an abutting landowner to ingress and egress between his property and the street, and a right of passage in the street bounding his property. Such property right has been called an easement of access or an easement of way in the street, and in numerous cases the court has held that such property right could not be taken from the abutting landowner without compensation.

It has been said that such owners had an easement of way in the street in addition to the use of it in common with the people generally; that such easement was private property as much as if it were corporeal property; that the rights of the abutting owners might not be ignored by the municipality, but must be reasonably preserved or compensation paid for injury done them; and that, if such easement was taken away or impaired or incumbered without the consent of the landowner, there was a taking of his property for public purposes for which he was entitled to compensation. Anderson v. Turbeville, 46 Tenn. (6 Cold.) 158; Railroad v. Bingham, 87 Tenn. 530, 11 S.W. 705; Smith v. Railroad, 87 Tenn. 630, 11 S.W. 709; Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 216; State v. Taylor, 107 Tenn. 463, 64 S.W. 766; Coyne v. Memphis, 118 Tenn. 651, 102 S.W. 355.

It is true that some of these expressions of the court were unnecessary to the disposition of the particular matters then under consideration, but none the less they all serve to illustrate the opinion this court has entertained as to the nature of the right of an abutting owner to an easement of access to an adjacent street and to an easement of way in the street.

In all these cases it was distinctly held that the destruction or serious impairment of the landowner's right of ingress and egress was a taking of his property--a taking of his easement of access or easement of way in the adjacent street. This being so, compensation is secured to the landowner by the provisions of the Constitution, art. 1, § 21.

It cannot be doubted therefore, under the adjudicated cases in this state, that, when that portion of the street immediately adjacent to the complaining owner's property is obstructed so as to destroy or substantially impair the owner's aforesaid easement of access or easement of way, such owner is entitled to compensation.

There is one case in Tennessee said to be to the contrary, namely, Humes v. Mayor of Knoxville, 1 Humph. (20 Tenn.) 408, 34 Am. Dec. 657. This, though, is a change of grade case. Perhaps it might be distinguished on that ground. It is not necessary, however, to comment on this case, for its authority has in two later cases been confined to actions in tort, and cases like the one at bar are said not to involve a question of tort, but of taking a valuable property right without compensation. Hamilton County v. Rape, supra; Coyne v. Memphis, supra.

In the case before us we are asked to go beyond our previous decisions. Our former cases have protected the landowner's easement of way in the street immediately adjacent to his premises. They have declared that he might not be deprived of access to the street on which his land abutted, and that his easement of way in this portion of the street might not be taken, without compensation.

We are now asked to hold that this easement of way in the adjacent street extends in both directions beyond the land of the owner, and that the owner is entitled to compensation if the street be closed beyond the limits of his property. In this case there has been no interference with the landowner's easement of way in Main street. Only Virginia avenue has been obstructed, and that obstruction is located at a point in the rear of the premises described, and the easement of way is only impaired to this extent. Still the plaintiff's premises has lost the special value attached to a corner lot.

The question then is: How far does this private right to an easement of way extend?

The answer is to be determined by considering when the damage of the landowner ceases to be special and becomes common to the public. The difficulty lies in determining what is special damage.

In the late case of Lewisburg & N. R. Co. v. Hinds, 183 S.W. 985, this court adopted a recent expression from the Supreme Court of the United States as follows:

"Any diminution of the value of property not directly invaded nor peculiarly affected, but sharing in the common burden of incidental damages arising from the legalized nuisance, is held not to be a 'taking' within the constitutional provision." Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088, L. R. A. 1915A, 887.

It was said in Lewisburg & N. R. Co. v. Hinds, supra, that our own cases are to the same effect, citing Railway v. Bingham, 87 Tenn. 522, 11 S.W. 705; Harmon v. Railroad, 87 Tenn. 614, 11 S.W. 703; Chattanooga v. Dowling, 101 Tenn. 342, 47 S.W. 700; Brumit v. Railroad, 106 Tenn. 124, 60 S.W. 505; Terminal Co. v. Jacobs, 109 Tenn. 727, 72 S.W. 954, 61 L. R. A. 188; Terminal Co. v. Lellyett, 114 Tenn. 368, 85 S.W. 881; Gossett v. Railway, 115 Tenn. 376, 89 S.W. 737, 1 L. R. A. (N. S.) 97, 112 Am. St. Rep. 846.

The converse of the proposition quoted is true, as the cases cited demonstrate, and any diminution of the value of property, directly invaded at least, which is not shared by the public generally, is a taking within the constitutional provision.

The courts have found much difficulty in determining where special damage shades into general damages. A number of well-considered modern cases involving the closing of streets have declared that the landowner's private easement of way extends along the street on which his property abuts to the intersecting streets on either side. This rule, while it may seem somewhat arbitrary, is probably the most satisfactory result that can be reached.

In the cases just mentioned proceedings to recover were had under statutes and Constitutions with varying provisions. The plaintiff's right to recover in all these cases, however, was apparently made to depend on the specialty or peculiarity of his damages. The facts in the cases to which we shall refer were similar to the facts of the case before us.

The New Jersey Court of Errors and Appeals has said:

"There is nothing to be found in the adjudged cases in this state inconsistent with the view that the right of the public in an open highway is of passage over it, and that this right the abutting owner has in common with the public, and suffers in common with it when deprived of such right by an obstruction to that use, and that there is, in addition to this, at least a special right of access to his land from the next adjacent intersecting streets over the highway on which it bounds, and that such right of access, in either direction the street allows, is a special advantage to the lands lying on it between any two intersecting streets. It is not a question whether the land adjoins the vacated portion or not, but rather will its value be impaired if deprived of one of the immediate means of access to it? We are of opinion that such right of access is of

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