Lewisburg & N.R. Co. v. Hinds

• Decision Date: 19 February 1916
• Citation: 183 S.W. 985,134 Tenn. 293
• Parties: LEWISBURG & N. R. CO. v. HINDS ET AL.
• Court: Tennessee Supreme Court

183 S.W. 985

134 Tenn. 293

LEWISBURG & N. R. CO. v. HINDS ET AL.

Supreme Court of Tennessee.

February 19, 1916

Certiorari to Court of Civil Appeals.

Condemnation proceeding by the Lewisburg & Northern Railroad Company against J. I. D. Hinds, trustee, and others. From a judgment of the Court of Civil Appeals, affirming a judgment awarding damages, plaintiff brings certiorari. Judgment affirmed conditionally upon a remittitur.

Buchanan J., dissenting.

Keeble & Seay and F. M. Bass, all of Nashville, for plaintiff.

Pitts & McConnico, J. Wesley Gaines, Jr., and M. S. Ross, all of Nashville, for defendant Hinds.

NEIL C.J.

This was a condemnation proceeding, instituted in the circuit court of Davidson county, for the purpose of appropriating to the use of the railroad company a right of way through a 56-acre tract of land, lying immediately north of, and alongside of, Shelby Park, in East Nashville. A jury of view was appointed in the usual way, a report made, an appeal from the finding of the jury to a trial by a regular jury, a verdict by the latter, and the assessment of damages both for the land taken and for incidental damages to the residue of the tract. The amount allowed for the value of the 2 31/100 acres taken for the right of way was $5,775. For incidental damages the jury allowed $32,000, making the entire sum $37,775, covering the value of the land actually taken and incidental damages, as stated. An appeal was prosecuted to the Court of Civil Appeals, and the judgment of the trial court on the verdict was affirmed. The case was then brought to this court by the writ of certiorari, and numerous errors assigned by the railway company.

The chief question concerns the measure to be applied in this state for the ascertainment of incidental damages.

Without for the present, taking up the special errors assigned we shall state our conclusions upon the general subject.

The parties widely differ in their theories. The defendants claim that any injury which directly causes depreciation in the market value is a damage within the true sense and scope of the right vouchsafed by law to recover compensation for injuries inflicted by the erection of a public improvement on part of the land of an owner.

Plaintiff insists that in order to arrive at the nature of damages peculiar to the land involved we are bound to exclude damages similar in nature to those suffered by mere adjacent owners, no part of whose land has been taken, and that this would exclude mere propinquity of the railroad, damage of fire, noise, smoke, cinders, dust, and vibration; that these are general damages as distinguished from special damages, and therefore necessarily excluded from consideration. The plaintiff supports this position by the further contention that, though the neighboring owners referred to occupy the same relative local adjacency in respect of the improvement as do those a part of whose land has been taken, they are not entitled to damages under our law, and that an allowance to the former, while denying relief to the latter, would operate as an unjust discrimination, and is not therefore to be tolerated.

The reply of defendants is twofold: First, that the claimed discrimination does not exist, since, as they assert, mere adjacent owners are entitled to the same kind of damages, for the same kind of injuries, at least for noise, smoke, cinders, dust, and vibration; secondly, that the term "general damages" embraces only those inconveniences which impair personal comfort and enjoyment as distinguished from those invasions which affect the use and value of land, instancing, among the former, the ordinary noises created by the operation of the improvement which offends the ears of all, whether they own and reside upon land in the neighborhood or not; as, for example, the noise caused by the rumble of trains, the rattle of vehicles on the paved streets of a city, noise of passing street cars, and the smoke of distant factories.

So, it is obvious that the defendants take their stand upon the broad proposition that every direct impairment of the market value of the land left after a part of the whole tract has been taken, caused by the installation and nonnegligent operation of the improvement, must be considered as an item of incidental damages, and be compensated for as such; while the plaintiff's contention is that the impairment of market value is not a true criterion, but the loss must arise from some physical, observable fact, or facts, special and peculiar to the land so left, as differentiated from other tracts or lots through which, or near to which, the improvement is located and operated; instances of such distinguishing physical features being the shape in which the land is left by the appropriation of a part of it, the separation of a whole tract into two or more parts, the existence of cuts and fills making it more difficult to use the separate parts, cutting off the owner from easy access to his barn or other outhouses, caused by the interposition of the railway between his dwelling and such structures, the diversion of waterways, the destruction of springs, the impairment of access to a public road or street, and the like.

We do not desire to incumber the present discussion with any extended consideration of the rights of adjacent owners, no part of whose land has been taken. There are two important theories upon this question, upon which the authorities are at variance. One of these is that any interference which impairs the value of adjacent property is a taking, and is to be compensated for as such; the other is that the interference must amount to a nuisance before relief can be granted. We adopt from a very recent decision of the Supreme Court of the United States the common-law rule, as we understand it, governing the rights of mere adjacent owners, no part of whose property has been taken for the public improvement, in respect of mere consequential damages:

"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. The immunity is limited to such damages as naturally and unavoidably result from the proper conduct of the road and are shared generally by property owners whose lands lie within range of the inconveniences necessarily incident to proximity to a railroad. It includes the noises and vibrations incident to the running of trains, the necessary emission of smoke and sparks from the locomotives, and similar annoyances inseparable from the normal and nonnegligent operation of a railroad. Northern Transp. Co. v. Chicago, 99 U.S. 635, 641, 25 L.Ed. 336, 338; Beseman v. Pennsylvania R. Co., 50 N. J. Law, 235, 240, 13 A. 164, affirmed in 52 N. J. Law, 221, 20 A. 169. That the constitutional inhibition against the taking of private property for public use without compensation does not confer a right to compensation upon a landowner, no part of whose property has been actually appropriated, and who has sustained only those consequential damages that are necessarily incident to proximity to the railroad, has been so generally recognized that in some of the states (Arkansas, California, Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, South Dakota, Texas, West Virginia, and Wyoming are, we believe, among the number) Constitutions have been established providing, in substance, that private property shall not be taken or damaged, for public use without compensation. The immunity from liability for incidental injuries is attended with a considerable degree of hardship to the private landowner, and has not been adopted without some judicial protest. But, as pointed out by Chief Justice Beasley in the Beseman Case, 50 N. J. Law, at page 238 , if railroad companies were liable to suit for such damages upon the theory that with respect to them the company is a tort-feasor, the practical result would be to bring the operation of railroads to a standstill. And, on the whole, the doctrine has become so well established that it amounts to a rule of property, and should be modified, if at all, only by the lawmaking power. But the doctrine, being founded upon necessity, is limited accordingly." Richards v. Washington Terminal Co., 233 U.S. 546, 554, 34 S.Ct. 654, 657, 58 L.Ed. 1088, 1092 (L. R. A. 1915A, 887).

Our own authorities are in substantial accord. Railroad v. Bingham, 87 Tenn. 522, 11 S.W. 705, 4 L. R. A. 622; 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; L. & N. Terminal Co. v. Lellyett, 114 Tenn. 368, 85 S.W. 881, 1 L. R. A. (N. S.) 49; Gossett v. Railroad, 115 Tenn. 376, 89 S.W. 737, 1 L. R. A. (N. S.) 97, 112 Am. St. Rep. 846; Coyne v. Memphis, 118 Tenn. 651, 102 S.W. 355, and cases cited. The cases in other jurisdictions to the same purport are so numerous that we shall not attempt to cite them.

Relief is granted in several states under Constitutions and statutes which authorize recoveries when any property has been "damaged" or "injured" by a public improvement, and in England where land has been "injuriously affected." Among these states are those mentioned in Richards v. Washington Terminal Co., and, in addition, we believe, the states of Oklahoma, Virginia, Washington, Minnesota, Kentucky and Alabama. 1 Lewis on Eminent Domain (3d Ed.)§ 346, and note; 10 Ruling Case Law, pp. 164, 165, § 145.

The course of decision on this subject, in the jurisdictions referred to, is quite fully shown in sections...