McKinney v. City of Nashville

• Decision Date: 14 August 1899
• Parties: McKINNEY v. MAYOR, ETC., OF NASHVILLE.
• Court: Tennessee Supreme Court

52 S.W. 781

102 Tenn. 131

McKINNEY v. MAYOR, ETC., OF NASHVILLE.

Supreme Court of Tennessee.

August 14, 1899

Appeal from circuit court, Davidson county; J. W. Bonner, Judge.

Condemnation proceedings by the mayor and aldermen of Nashville against H D. McKinney and wife. Defendant McKinney appeals on the ground of inadequacy of damages. Affirmed.

E. H East, for appellant.

Price & McConnico, for appellees.

BEARD J.

This is a condemnation proceeding instituted by the municipal authorities of Nashville. The right to condemn the property in question is conceded by its owner, the plaintiff in error. The controversy is as to the rule for ascertaining value submitted by the trial judge. In his charge to the jury he said: "In considering the uses for which the property was adapted, you must consider all legitimate purposes for which it may be used, and must not confine yourselves to any one special or particular use, as going to indicate its value." And again: "You will consider its location and publicity, its situation with reference to the Public Square and Deaderick street, and its vicinity to other property used for business or other purposes. *** You will also consider the adaptability of the property to any and all legitimate purposes to which it might be applied, and its rental value for any and all such legitimate purposes, as well as other elements of value developed by the proof," in fixing the compensation to which the owner of the property was entitled upon its appropriation to a public use.

The record disclosed that this property was more valuable, by reason of location, for saloon purposes, than any other, and that at the time of the institution of the present proceedings it was under lease for a term of five years for a good annual rental, and was then used to carry on a saloon business. In view of this condition, the contention of plaintiff in error is best stated in the words of his counsel, taken from his brief and argument, which are as follows: "If a saloon keeper, because of the location of property, and its adaptability to his intended uses, will give more for it than another, whose occupation is different can afford or will give, looking to his intended use of it why should the owner not receive the highest value which any one would give for the property? I do not mean this highest value for one use should be considered in connection with its value for other uses, in order to diminish its value, but that it constitutes its value,--is its value in the market." And again: "Instead of saying to the jury, 'You must consider all legitimate purposes for which it might be used,' *** he should either have said to the jury, 'The owner has a right to its value for the use for which it would bring the most in the market,' or that they should value the property on the basis of its most valuable use." These paragraphs, taken from the instructions of the trial judge, and the argument of the counsel criticising them, present sharply the issue on this point which is presented for our determination. On this issue we do not hesitate to approve the charge of the trial judge. Lewis, in his work on Eminent Domain (section 478), says: "In estimating the value of property taken for public use, it is the market value of the property which is to be considered. The market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of having it. In estimating its value, all the capabilities of the property and all the uses to which it may be applied, or for which it is adapted, are to be considered, and not merely the condition it is in at the time, and the use to which it is applied by the owner." To this text many cases are cited by the author. One of these cases is Bridge Co. v. Ring, 58 Mo. 491, in which the court say, "The correct rule to be applied relates to the value of the land to be appropriated, which is to be assessed with reference to what it is worth for sale, in view of the uses to which it may be put, and not simply in reference to its productiveness to the owner in the condition in which he has seen fit to have it." Nor do we find the authorities relied upon by plaintiff in error to support his contention out of line with the rule thus announced, with one possible exception. We will now examine these authorities.

In Railroad Co. v. Jacobs, 110 Ill. 414, the trial court had said to the jury, as is insisted should have been done in this case, "that the owner of property to be condemned is entitled to its actual value for its highest or best use to which the property *** could be put, and in case [it] has an actual value for a specified use, and *** such property is devoted and adapted to such use, then the owner is entitled to such value." On appeal this was held to be error, and the supreme court said: "The jury should have been instructed in such a way that they would look to the market value of the property. But the instruction opens up a wider field of investigation. It was a fair invitation to the jury to enter into another field of inquiry as to the value of the lots,--to ignore the market value, and determine the actual value for a specified use." The case was, therefore, reversed for this error of the...