Lebanon & Nashville Turnpike Co. v. Creveling

• Decision Date: 25 May 1929
• Citation: 17 S.W.2d 22
• Parties: LEBANON & NASHVILLE TURNPIKE CO. v. CREVELING, Com'r, et al.
• Court: Tennessee Supreme Court

Page 22

17 S.W.2d 22

LEBANON & NASHVILLE TURNPIKE CO. v. CREVELING, Com'r, et al.

Supreme Court of Tennessee.

May 25, 1929.

Certiorari to Court of Appeals, on Appeal from Circuit Court, Wilson County; Albert Williams, Judge.

Condemnation proceeding by J. G. Creveling, Jr., Commissioner, and others, against the Lebanon & Nashville Turnpike Company. On appeal from the finding of a jury of view fixing the amount of damages, the judgment was reversed on defendant's appeal and the case remanded for a new trial, and both parties bring certiorari. Decree of Court of Appeals reversed, and judgment of trial court affirmed.

Walter S. Faulkner, of Lebanon, R. T. Smith, of Nashville, and R. H. Crockett, of Franklin, for plaintiff in error.

L. H. Walker, A. A. Adams, Sr., Lillard Thompson, and Louis Chambers, all of Lebanon, for defendants in error.

CHAMBLISS, J.

This is a suit brought by the state and county to condemn for highway uses a toll turnpike, owned and being operated by a quasi public corporation. The turnpike extended from Davidson county line to Lebanon —some 16.3 miles, three tollgates being located thereon. Appealing from the finding of a jury of view fixing, by a majority vote, the value of the roadbed, right of way, easements, and franchise privileges at $40,000, a trial was had in the circuit court, where the jury reported $39,000, with interest from the filing of the petition and the contemporaneous taking of possession by the condemnors, as the amount of the damages. The turnpike company appealed to the Court of Appeals, where the judgment was reversed, and the case remanded for a new trial. Petitions by both parties for writs of certiorari have been granted, and the case has been argued here; voluminous and exhaustive briefs being presented.

Neither the right of the state and county to condemn nor the form of the proceedings is questioned. The amount of the award alone is involved. The learned Court of Appeals was of opinion that reversible error was committed (1) in the improper admission of certain evidence; (2) the exclusion of the testimony offered by at least one witness; (3) in the instructions given the jury as to the measure of damages, including the refusal of certain requests.

The charter of the turnpike company was granted in 1835-1836 for a term of 99 years, expiring in May, 1935. At the time of the taking, September 19, 1925, it had 9 years and 8 months to run. It is a fact of great materiality that the life of the franchise was thus limited and that it was not exclusive. In 1925, by court decree, the number of tollgates had been restricted to three, and in placing these gates the 6 miles of turnpike nearest Davidson county had been left free of gates.

The issues raised by the numerous assignments submitted for our consideration center about the relevancy and materiality of evidence showing (1) the existence of an independent available, public owned, "parallel" road from the Davidson county line to Lebanon, 2 7/10 miles longer, as a competitive factor; and (2) the past and prospective net earnings of the turnpike company as indicated by its books.

The insistence of the turnpike company is that the evidence touching the first of these matters was improperly submitted to the jury, being entitled to no consideration; that, on the other hand, although net earnings is the really determinative factor, this was denied its due consideration; and that a greatly depreciated amount was awarded as the result. In this view the learned Court of Appeals appears to have concurred. We are clearly of opinion that both of these matters are elements or factors bearing upon the value of the property as of the date of its taking, proper to be considered, and that, therefore, the issues raised go rather to the weight of the testimony than otherwise. In this view our consideration narrows to (1) the action of the trial judge in admitting or rejecting evidence; and (2) the instructions given or refused by him.

Under our statutes and system the proceedings in condemnation contemplate a wide scope of inquiry, with flexible limitations in the fixing of a fair and reasonable value. So, as the first step, a jury of view is provided for, to go informally and without restricting instructions upon and over the property, to inspect it, and "view" it, in all its bearings, relations, and aspects, free to make all inquiries and investigations which may tend to throw light on its true present value and report what to them seems fair and just. Then follows on appeal the more formal proceedings in the circuit court, but again it is a jury of 12 men chosen from the community, free from interest or prejudice, who are to have submitted to them all facts which might reasonably be excepted to affect the valuation which a willing purchaser might agree upon when dealing with a willing seller. The door is opened wide to both parties to the controversy to submit all facts deemed by either pertinent to the issue, and objections going to pertinency and relevency should be sustained only in extreme and plain cases. The jury, composed of 12 minds, should be given wide latitude, differing, as they must, as to details respecting controlling or influential elements of value.

And, on principal and authority, as a matter of practice and procedure, when the condemnor has established the right to take, the burden of the evidence of the value of the property taken shifts to the defendant owner. This is his right, as well as his obligation. He recovers the judgment for the value.

Condemnation proceedings are dual in nature. We have recently held that the issues of the right to condemn and of the amount of the award are so far separable as to justify separate hearings on appeal. Nashville v. Dad's Auto Accessories, 154 Tenn. at page 198, 285 S. W. 52.

The rule laid down in 2 Nichols on Eminent Domain (2d Ed.) § 432, p. 1139, that "the burden of proof is upon the owner to establish his right to recover more than nominal damages," finds support in Power Co. v. Cleage, 5 Higgins, 417, and Tenn. Central Ry. Co. v. Campbell, 109 Tenn. 640, 75 S. W. 1012. In Alloway v. Nashville, 88 Tenn. 510, 13 S. W. 123, 8 L. R. A. 123, it was held that the right of opening and closing argument remained with the petitioner, under our state practice, although conceding the majority rule to be otherwise. But the court recognizes that, after the establishment of the right to take, the burden of proof may shift to the other party on other questions, holding, however, that this shifting of the burden of proof does not affect the order of the argument. It follows that, if additional, clearer, and more convincing evidence was not introduced with respect to those elements of value which the turnpike company deems of controlling importance, the omission is not chargeable to the condemnors.

Now, the turnpike company's complaint of the award appears to be grounded mainly on two propositions: First, the alleged failure of the jury to give to net income due consideration, and, second, the consideration accorded by the jury under the instructions of the court to the existence of the parallel free road. As to the first of these, if the failure was in consequence of a want of proof, the owner cannot complain. But counsel say on their brief filed February 14th that, "The net income of the corporation for the unexpired period of its corporate life, approximately nine and three-fourths years, is definitely shown in the record," and this being so, as clearly appears, the question becomes one for the jury, of the weight accorded it, unless its consideration was improperly restricted by the trial judge.

Counsel also say that, "The Court of Appeals reached the conclusion that net income is the controlling element in determining value in a case of this character," and this appears to be the view of that learned court, and we conceive that its reversal of the judgment below was induced chiefly by the fact that this "controlling element" was not permitted to control.

This view is predicated on the theory that the property condemned in this case was wanting in "market value," as the term is applied in condemnation cases generally, but possessed a value peculiar to its owner, a condition calling for the application of an exception to the general rule recognized in exceptional cases, of which Railroad v. Memphis, 126 Tenn. 267, 148 S. W. 662, 41 L. R. A. (N. S.) 828, Ann. Cas. 1913E, 153, is an illustration.

However, in that case the general rule laid down in the leading case of Woodfolk v. N. & C. R. Co., 2 Swan, 427, for determining the measure of just compensation in condemnation cases, ever since followed in this state (see Alloway v. Nashville, 88 Tenn. 516, 13 S. W. 123, 8 L. R. A. 123; McKinney v. Nashville, 102 Tenn. 131, 52 S. W. 781, 73 Am. St. Rep. 859; R. R. Co. v. Hines, 134 Tenn. 312, 183 S. W. 985, L. R. A. 1916E, 420; and others), is approved; this general rule being concisely stated in the recent case of Light & Power Co. v. Beard, 152 Tenn. 354, 277 S. W. 890, quoting from Woolfolk v. Railroad Co., supra, as follows:

"We consider the proper rule to be this, that the fair cash value of the land taken for public use, if the owner were willing to sell, and the Company desired to buy that particular quantity, at that place and in that form, would be the measure of compensation."

This is a sound statement of the rule for arriving at the "market value" — the descriptive term commonly employed in defining the basis for condemnation awards. And here it may be well to quote a pertinent paragraph from R. R. Co. v. Hines, supra, as follows: "The principle on which it acts is that the owner of the land shall be treated as one offering it for sale, at a fair price, while not being under any stress of circumstances that would induce him to sacrifice his property, and the condemnor as an intending buyer, who is alike free from stress, as not being forced to buy."

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