Mason v. City of Nashville
| Decision Date | 26 March 1927 |
| Citation | 291 S.W. 1074 |
| Parties | MASON v. CITY OF NASHVILLE. |
| Court | Tennessee Supreme Court |
Proceeding by H. M. Mason against the City of Nashville to review a decision of the condemnation commissioners refusing to make an award to petitioner. Judgment was rendered against petitioner, and he was granted an appeal in the nature of a writ of error to the Court of Appeals, and the case was transferred by that court to Supreme Court. Reversed and remanded.
Byrd Douglas, of Nashville, for Mason.
A. G. Ewing, Jr., of Nashville, for City of Nashville.
By ordinance duly adopted the city of Nashville made provision for the widening of Church street westward from the intersection of Church street and Eighth avenue.
The plaintiff in error, H. M. Mason, occupied the second story of a building located at the southwest corner of said street intersection, by lease from the owner. Notice was given to Mason, by the proper officers of the city, that a portion of said building had been condemned in order that the street might be widened, and that he would be required to deliver possession of his leased premises within 10 days from the receipt of the notice.
Mason complied with the terms of the notice by vacating the premises, and thereafter commissioners were appointed by the city, under the terms of its charter, which adopted the procedure outlined in sections 1387-1391 of the Code of 1858 (Shannon's Code, §§ 1980-1984), who were directed to examine the premises and assess the damages to which the owners of property condemned were entitled.
These commissioners reported that the plaintiff in error was entitled to no damages for the condemnation of his leasehold, and the report of the commissioners was adopted and approved by ordinance of the city council.
Thereafter the plaintiff in error filed a petition in writing in the circuit court of Davidson county, with certified copies of said proceeding and ordinances of the city attached thereto as exhibits; the prayer of the petition being that the petition be treated and filed as the appeal of the plaintiff in error, and that a copy thereof should be served upon the city of Nashville for answer. The judge of the circuit court issued a fiat for the filing of the petition and for the issuance of process against the city.
The city made several motions to dismiss the appeal, for lack of jurisdiction, because the appeal was filed after the time allowed by law, etc., which several motions were overruled.
The case came on to be heard on its merits at the February term, 1926, of the circuit court, whereupon a plea of not guilty was interposed by the city, and a jury was impaneled to try the issues joined.
After the jury had been impaneled, the petition for the appeal and the exhibits thereto were read to the jury, and thereupon counsel for the plaintiff in error and for the city agreed in open court to stipulate as to certain material facts. The stipulation resulted from statements and counter statements of counsel in open court, and the substance of the stipulation is set out on the brief filed for the city as follows:
After the foregoing stipulation had been made, counsel for the city and the learned trial judge engaged in a colloquy as to the legal question involved in the suit, and counsel for the city stated his position to be that, since the entire leasehold of the plaintiff in error was taken by the city, the lease was terminated by the condemnation, and that the compensation paid to the owner of the fee included compensation for the leasehold. Thereupon, without any evidence having been introduced by either party, other than the stipulation above referred to, counsel for the city made a motion for a directed verdict. The motion contained three grounds, all of which were in effect that, because the entire leasehold was destroyed and terminated by the condemnation, the plaintiff in error had no further interest in the property condemned, and therefore was not entitled to recover anything for the taking of his leasehold.
The merits of this motion were then argued by counsel, and the trial judge indicated that he would grant the motion when counsel for the plaintiff in error asked that he be permitted to introduce his evidence before the motion was ruled upon, stating that he thought his client entitled to state his case and get his facts in the record. Objection was made by counsel for the city, and the objection was sustained. Counsel for the plaintiff in error then questioned the procedure of a motion for a directed verdict before the introduction of proof, and called attention to the fact that the only proof offered was the stipulation that the plaintiff in error had been ousted from his place. The trial judge ruled that the case presented only a question of law and not a question of proof or fact, and that the stipulation had presented all the facts necessary to the determination of the legal question involved. The final ruling of the trial judge was as follows:
"I am not sure I am right now, but, after listening to repeated arguments of two very able and persuasive lawyers and decisions from the law books, I am constrained to believe there is nothing here but a legal question; that condemnation can only be resorted to for the purpose of recovering compensation for a fee estate, and cannot be resorted to for the purpose of acquiring personal property."
Verdict for the city was then entered under the direction of the trial judge, and, after a ...
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