Johnson v. City of Chattanooga

• Decision Date: 01 December 1945
• Citation: 191 S.W.2d 175,183 Tenn. 123
• Parties: JOHNSON v. CITY OF CHATTANOOGA.
• Court: Tennessee Supreme Court

191 S.W.2d 175

183 Tenn. 123

JOHNSON v. CITY OF CHATTANOOGA.

Supreme Court of Tennessee.

December 1, 1945

Error to Circuit Court, Hamilton County; Fred B. Ballard, Judge.

Action by N. D. Johnson against the City of Chattanooga to recover for damages resulting from trimming of a shade tree. From an adverse judgment, plaintiff appeals in error.

Affirmed.

Joe Frassrand, of Chattanooga, for plaintiff in error.

Will F Chamlee, of Chattanooga, for defendant in error.

CHAMBLISS Justice.

Johnson is the owner of a residence located on a lot fronting on North Market Street in Chattanooga. He brought this action to recover for damages resulting from the cutting of limbs and branches from a tree standing in front of his residence between the street curb and the sidewalk, which impaired the beauty and usefulness of this tree for shade purposes. The case was heard by the trial court on a stipulation from which it appeared that the defendant City owns and operates through its Power Board a public service system for the lighting of its streets and the private homes and other buildings of the City; that as an incident of such operation it erects poles and strings wires along its streets; that the tree in question was cut and trimmed when, and because, it became necessary in the erection and proper maintenance of these poles and wires. No negligence is charged or shown. The trial judge first gave judgment for the plaintiff, but granted a new trial and dismissed the action. This appeal followed.

The theory advanced through his assignments is that, as an abutting owner, his fee title extends to the center of the street; that defendant city has an easement only in the street for ordinary and usual street traffic and transportation purposes; that these poles and wires are an additional burden upon the fee for which a privately owned company would be liable in damages to the owner of the fee that the defendant in conducting, and operating this lighting distribution plant is acting, not in a governmental capacity but in a corporate capacity and is, therefore, subject to the same rules of liability that apply to a privately owned corporation. It is said, also, that the claims of the plaintiff come within the provision for damages for grade and other highway changes made for purposes of repair and improvement contained in Code Section 3404.

It appears from a memorandum filed in the record by the trial judge that he found the opinion of this Court in Frazier v. East Tennessee Telephone Co., 115 Tenn. 416, 90 S.W 620, 621, 3 L.R.A.,N.S., 323, 112 Am.St.Rep. 856, 5 Ann.Cas. 838, to be controlling. In that case the question was whether or not erection and maintenance of poles and wires of a telephone company along a dedicated street constituted a new taking and added a burden to the fee title of the abutting property owner for which he was entitled to recover damages. Upon full review of the authorities the Court held, Mr. Justice Shields dissenting, that no additional burden was imposed and no right of compensation arose. A...