Miss. Ry. Co. v. McDonald

• Decision Date: 30 April 1873
• Citation: 59 Tenn. 54
• Court: Tennessee Supreme Court
• Parties: The Mississippi Railway Company v. J. H. & W. L. McDonald.

59 Tenn. 54

The Mississippi Railway Company

v.J. H. & W. L. McDonald.

Supreme Court of Tennessee.

April Term, 1873.

FROM SHELBY.

From the First Circuit Court of Shelby County, January Term, 1873. C. W. HEISKELL, J.

W. H. STEPHENS for Plaintiff.

SMITH, SCOTT & JEFFERSON for Defendants.

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

This is a proceeding to have the land of the defendants, or such part of it as may be required, appropriated to the use of the road of the petitioner, a chartered railroad company, either under the charter, or under the general provisions of law in the Code, sec. 1325, etc.

A jury was appointed, who made a report, which was excepted to by the defendants; and, by consent, the exceptions were sustained, and the report set aside, for several good and sufficient reasons.

There was no notice to the owners of the time of making the inspection of the premises; the report did not describe the land set apart; and it did not assess the incidental damages.

The report being set aside, the previous order for the report was revised and made more specific, and the same jury were directed to proceed again.

A second report was thereupon made, and excepted to by the petitioner; but the exceptions were overruled, the report confirmed, and a final decree rendered; from which the petitioners have appealed.

The charter of the petitioner was granted by the same Legislature that enacted the Code of 1858, and there are some slight discrepancies between the mode of procedure pointed out by the charter for this proceeding, and the general provisions on that subject in the Code.

These discrepancies relate principally to matters of form, and are in no respect essential. We are to be governed, we think, by the general law. The provisions of the charter, in the parts referred to are not in the nature of a contract that may be considered as impaired by the subsequent general provisions; and, beside, there is nothing to show that the charter had been accepted, or acted upon, before the general provisions were passed.

The first one of the exceptions now relied upon is, that the jury failed to offset the incidental advantages against the incidental damages.

The report shows, first, the value of the land actually appropriated; second, the incidental damages; and third, that there are no incidental advantages over and above the general advantages to other lands in the neighborhood; by which we understand that the only advantages are in the general advance in the price of land, resulting from the construction of the railway. To ignore this was, we think, strictly correct. See Woodfolk v. The Nashville & Chattanooga Railroad Company, 2 Swan, 440; The E. Tenn. & Va....