Memphis Freight Co. v. Mayor & Aldermen of Memphis

• Citation: 44 Tenn. 419
• Court: Supreme Court of Tennessee
• Decision Date: 30 November 1867
• Parties: Memphis Freight Company v. Mayor & Aldermen of Memphis.

44 Tenn. 419

Memphis Freight Company

v.Mayor & Aldermen of Memphis.

Supreme Court of Tennessee.

November Term, 1867.

FROM MEMPHIS.

The petition of the Memphis Freight Company, to have certain lands in the city of Memphis condemned for the use of the company, was dismissed at the ______ Term, 1866; and they have appealed to this Court. Judge GEO. W. REEVES, presiding.

BROWN, MCRAE, PERKINS and WALKER, for Complainants.

A. J. MORGAN, HUMES, and GEO. GANTT, for Respondents.

SHACKELFORD, J., delivered the opinion of the Court.

This is a petition filed in the Circuit Court of Shelby, to have a portion of the land lying in the city of Memphis, between Poplar and Beal Streets, known as “The Promenade,” condemned for the use of the petitioners. The substance of which is: The petitioners were incorporated on the 18th of May, 1866, by the Legislature, under the name and style of “The Memphis Freight Company,” to have succession for fifty years. That privilege was given to it by its charter, for loading and unloading freight, goods, cotton, etc., on or from steamboats, or other water craft, that may touch at the port of Memphis; and, for the purpose of carrying on said business, the company is granted the right and privilege of erecting, upon the summit of the East bank of the Mississippi River, in the city of Memphis, and between Poplar and Beal Streets, such sheds, railroad tracks, engines, and other equipments, as may be necessary for the prosecution of the business of hauling freight. They shall have the right to lay down railroad tracks from the sheds referred to, to the margin of the Mississippi River; provided, between Union Street and Market Street, said sheds shall be at least one hundred feet West of the buildings on the East side of Front Street; provided, in laying down said tracks, and the building of such shed, no greater inconvenience shall be given to the public, than can be avoided; and said track shall be so constructed, and the cars so operated as not to inconvenience the public in the use of the street and levee. That on the -- day of ____, 1820, John Overton, and others, being the owners and proprietors in fee of the lands, included in the limits of the territory between Poplar and Beal Streets, and did dedicate the same as public ground, for the purpose of a promenade, for the use of the citizens of Memphis and the public generally; and the same has been used and controlled by the city authorities of Memphis, up to the present time. They being privileged to construct lines of railroad, and to have the right of loading and unloading boats, as set forth in their charter, they are authorized to take the real estate of individuals not exceeding the amount prescribed by law, as set forth in their charter, for the use and purposes therein prescribed, upon the payment of such damages as may be duly inquired of and assessed. And they pray, in order to carry out and perform the objects of their charter, to have allotted to them, out of the parcel of ground bordering on the Mississippi River, between Poplar and Beal Streets, known as “The Promenade,” two double railroad tracks, of sixteen feet width, each, from the West side of Front Street to the margin of the river; also, a space for ten sheds, of one hundred and twenty-five feet front, each, on Front Street, running back West, fifty feet, etc., to be used and enjoyed by said company for the term of their charter; that the same be decreed to them; that a jury be summoned to inquire of the damages, etc. The Mayor and Aldermen were made parties, and, in answer, admit the ground sought to be condemned for the use of the company, was, in 1820, by the proprietors of the lands dedicated to the city of Memphis as a public promenade; and, by long usage, they have acquired a right to the same. They resist the said application, and insist the said company have no right to have the same condemned, and the value assessed by a jury, as in case where private property is taken for public use, because said charter does not make any provision for such compensation, and is, therefore, null and void; and because the grounds have been dedicated for a special public purpose--a public promenade--and accepted by the Mayor and Aldermen; and this acceptance having been recognized and ratified, is not subject to be condemned for any other purpose; and the use for which it is proposed to be condemned, is not a public one,but a private and speculative one. The cause was submitted to the Court, upon the agreement of counsel upon the statements in the petition and answer.

The Court was of opinion that the petitioners were not entitled to relief, and dismissed the petition; from which an appeal was taken to this Court.

The principal question presented for our consideration, is: Is the charter of the Memphis Freight Company, such as will authorize the Legislature to take private property for the use of the company, upon compensation? For the determination of this question, it becomes necessary to examine the charter of this company, and see if the object and purposes of its creation, are such a public use as will authorize the Legislature to vest in it the right to take private property, upon compensation, for its use; and if it falls within that class of internal improvements embraced within the provisions of chap. 10 of the Code, the company is authorized to construct railways from their sheds to the margin of the river, for the prosecution of their business of loading and unloading boats, to erect machinery, etc. These railways are not designed for public travel, but as a means to enable the company to carry out the object and purposes of their charter, in the prosecution of their business. The public is not interested in the erection of these railways, except in the facilities that may be afforded in the loading and unloading of boats; it is purely a private enterprise, giving superior advantages to the corporation, over those who have not the use of machinery. The grounds of this public promenade, were given, by the Act of incorporation, to build ten sheds, one hundred and twenty-five feet front, and fifty feet deep. The public is not benefited by the building of these warehouses, except as a convenience. Can it be seriously insisted, the building of railway from these sheds to the river falls within the provisions of the Code, ch. 10, sec. 1325, which provides: “Any person or corporation authorized by law to construct any railroad, turnpike?? canal, toll-bridge, road, causeway, or other work of internal improvement, to which the like privilege is conceded, may take the real estate of individuals, not exceeding the quantity prescribed, upon compensation, as provided by the other sections of the chapter.” We think the provisions of the sections embraced in ch. 10 of the Code, have no application to works designed alone for private enterprise, how muchsoever, they may be a convenience to the public. To authorize the taking of private property by An Act of the Legislature, it must be for a public use. What is a public use, does not seem to be very clearly defined. Railroads, turnpikes, public roads, canals, etc., are means of intercommunication between different sections of the State, and are of public use; the streets and alleys of a city or town, are necessary for the use and convenience of the citizens.

In the case of the West River Bridge Company vs. Dick et als., 6 How., 547, it was held, it was...