Memphis & S.L.R. Co. v. Union Ry. Co.

• Decision Date: 30 June 1906
• Citation: 95 S.W. 1019,116 Tenn. 500
• Parties: MEMPHIS & S. L. R. CO. v. UNION RY. CO. et al.
• Court: Tennessee Supreme Court

95 S.W. 1019

116 Tenn. 500

MEMPHIS & S. L. R. CO. v. UNION RY. CO. et al.

Supreme Court of Tennessee.

June 30, 1906

Application by the Union Railway Company and others for certiorari and supersedeas to review condemnation proceedings whereby the Memphis & State Line Railroad Company obtained a condemnation of lands belonging to the Union Railway Company. Petition for certiorari and supersedeas refused.

Charles N. Burch and Albert W. Biggs, for plaintiff.

Thos B. Turley and Henry Craft, for defendants.

McALISTER J.

This is a proceeding by the Memphis & State Line Railroad Company to condemn for railroad purposes a tract of land owned by the Union Belt Railway Company lying within the corporate limits of the city of Memphis. The property is generally described as a tract of land in the Fifteenth Ward of the city of Memphis, triangular in shape and lying between the tracks of the Nashville, Chattanooga & St. Louis Railroad Company and the Union Railway Company.

The petitioner alleges that it is now engaged in laying a line of track on its railroad from a point where the Yazoo & Mississippi Valley Railroad crosses the state line between the states of Tennessee and Mississippi, to the town of Woodstock, in the county of Shelby, state of Tennessee, and that for said purpose it is necessary that the petitioner should have a portion of the land above described, as an easement or right of way for its road.

It is also averred that the petitioning railroad company is obliged, in reaching said described land, to cross the track of the Union Belt Railway Company, and it asks the condemnation of a strip of land across said defendant's railroad track. The portions of the land sought to be condemned are then specifically described; one tract containing .53 acres, more or less, and the other containing .78 acres, more or less.

The defendant filed an answer to the petition, in which the right to condemn its land was resisted upon the following grounds:

(1) That the petitioner is not duly incorporated and organized under the laws of the state of Tennessee, and that it has not the right to condemn under its charter and the general laws of the state of Tennessee.

(2) That it is not a bona fide corporation, but is a paper corporation, whereby the Illinois Central Railroad Company, a foreign corporation, is seeking to acquire valuable rights of way and franchises from the state of Tennessee through the county of Shelby and city of Memphis.

(3) That said corporation will not exercise its franchises, and does not intend to engage in the hauling of freight and passengers, and is not a common carrier.

(4) By the charter of the Memphis & State Line Railroad Company, it was limited to construct a road from Etters, Tenn., to Lake View, Miss., points entirely south of the city of Memphis whereas the property described in the petition lies in the city of Memphis.

(5) The Memphis & State Line Railroad, which is owned by the Illinois Central Railroad Company, is a parallel and competing line to the Illinois Central Railroad.

(6) The amendment to the charter of the Memphis & State Line Railroad Company was not authorized by law because the line had been finally located before said charter was obtained.

(7) Chapter 39, p. 112, of the Acts of 1887 is unconstitutional and, if not unconstitutional, is repealed by implication by chapter 116, p. 271, of the Acts of 1897.

(8) That the property sought to be condemned was not necessary for the purposes and uses of the petitioner.

(9) That the property sought to be condemned is property which was purchased by defendant to be used as storage yards, and the appropriation of this property would amount to the destruction of said yards and cripple the defendant in its service of the public and the carrying on of its business, and do it irreparable injury.

(10) The property sought to be condemned is situated wholly within the limits of the city of Memphis, and the petitioner has not obtained permission or secured a franchise from the city of Memphis for the purpose of building this line through said city or any part thereof.

Proof was taken, and on the hearing, his honor, A. B. Pittman, circuit judge, upon consideration of the whole case, ordered, adjudged, and decreed as follows:

First. The defenses set up in the answer and amendment thereto are not well taken, and the same are all disallowed.

Second. The petitioner, Memphis & State Line Railroad Company, is, under its charter and amendment thereto and by the laws of the state of Tennessee, authorized to condemn the property of defendant company for the purpose of constructing and operating a line of railroad as described in the petition.

Third. It is necessary to take the property of defendant described in the petition for that purpose and to condemn a crossing of the track of defendant Union Railway Company, as therein set out.

Fourth. The petitioner is entitled to have set apart for its use as an easement or right of way for the construction and operation of a double track across the lands and tracks of defendant the following described land, viz.: "A strip of land not exceeding 100 feet in width across the tracks and right of way of the Union Railway Company in the Fifteenth district of Shelby county, Tenn., in the city of Memphis, which was then more particularly described by metes and bounds, containing in all .53 acres, more or less"; also another tract of land lying in the Fifteenth district of Shelby county and adjacent to the above-described tract, which was then specifically described by metes and bounds, and containing .78 acres, more or less.

A jury of view was then appointed to lay off said land by metes and bounds over the lands of the defendant, and to assess the damages. The jury of view set apart for the Memphis & State Line Railroad as an easement or right of way for the construction and operation of a double-track railroad across the tracks and right of way of the defendant, a strip of land 70 feet in width across the tracks and right of way of the Union Railway Company in the Fifteenth civil district of Shelby county, Tenn., in the city of Memphis, which was then specifically described by metes and bounds, containing in all .53 acres.

The jury of view also set apart to the petitioner as an easement or right of way over the lands of the defendant company another strip of land 100 feet in width, lying in the Fifteenth civil district of Shelby county, Tenn., and adjacent to the strip above described, which was then more particularly described by metes and bounds, and containing .78 acres, more or less.

The jury of view assessed the damages for the value of said easement, as well as the incidental damages to the residue, of both of said tracts, at $5,000. The report of the jury of view was in all things confirmed by the circuit court. A writ of possession was then awarded the Memphis & State Line Railroad Company upon the execution of a bond in the sum of $10,000, payable to the Union Railway Company and others, and conditioned to abide by and perform the final judgment to be rendered in this cause.

At this point the Union Railway Company filed a petition in this court for writs of certiorari and supersedeas to arrest the occupation of this land by the petitioning railroad company and to remove said cause into this court for a trial.

It is insisted on behalf of the Union Railway Company that the property sought to be condemned and appropriated by the Memphis & State Line Railroad Company is not within the route of the latter company as authorized by its charter and finally located by it. The record reveals that the Memphis & State Line Railroad Company was chartered on the 21st day of July, 1903, under the general incorporating act of 1875 (Acts 1875, p. 142, c. 142), "for the purpose of constructing a railroad from a point at or near the south margin or boundary of the city of Memphis in a southwesterly direction to a point at or near where the Yazoo & Mississippi Valley Railroad crosses the Mississippi and Tennessee state line." Two years after the incorporation of said road, and on the 27th day of July, 1905, under an amendment to the charter, the board of directors adopted a resolution fixing the northern terminus of the Memphis & State Line Railroad at Woodstock, a point in Shelby county some miles north of the city of Memphis.

The right of way sought to be condemned is situated between McLean and Cooper avenues in the city of Memphis, and several miles distant from the original chartered route, but within the new route as fixed by the board of directors of said company on July 27, 1905.

It is said on behalf of the Union Railway Company that this action of the board of directors of the petitioning company was illegal--first, because chapter 39, p. 112, of the Acts of 1887, under which the petitioning company, through its board of directors, adopted the amendment to the charter, is unconstitutional; and, second, that, if constitutional, it is inapplicable, since the Memphis & State Line Railroad Company had already and finally located its route.

It is claimed that under the original charter the route was fixed from Lake View, Miss., to Etters, Tenn., or East Junction, about three miles from the south boundary of the city of Memphis. This fact, it is said, is shown in the first condemnation suit, which was brought in October, 1903, for the purpose of building, as stated in the petition, a road from Lake View, Miss., to Etters, Tenn., and reciting the fact that at that time the road was being built.

It is further said that the entire right of way was acquired from East Junction to Lake View, and the road as originally incorporated was treated as completed.

The following contentions are made on...