Nashville, M. & S. Turnpike Co. v. Davidson County

• Decision Date: 19 January 1901
• Citation: 61 S.W. 68,106 Tenn. 258
• Parties: NASHVILLE, M. & S. TURNPIKE CO. v. DAVIDSON COUNTY.
• Court: Tennessee Supreme Court

61 S.W. 68

106 Tenn. 258

NASHVILLE, M. & S. TURNPIKE CO. v. DAVIDSON COUNTY.

Supreme Court of Tennessee.

January 19, 1901

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Action by the Nashville, Murfreesboro & Shelbyville Turnpike Company against the county of Davidson. From a judgment of the court of chancery appeals affirming a decree of the chancellor dismissing complainant's bill, it appeals. Reversed.

John J Vertrees and Parks & Harwood, for appellant.

J. A Cartwright, for appellee.

WILKES J.

This is a bill by the turnpike company to enjoin the county of Davidson from opening and building a public road near Nashville, to be called "Arlington Avenue." The road as projected is about one-half a mile long, and extends from a point on the company's pike just beyond its first tollgate, in an oblique or diagonal direction, to the Stone River or Chicken pike, near the southeast corner of Mt Olivet Cemetery. The road simply extends from the one pike to the other, and not beyond either, in either direction. The theory of the bill and ground of complaint is that the proposed road will be used and will operate as a shun pike whereby payment of tolls will be avoided at its first and most valuable and important tollgate; but if not, technically speaking, a shun pike, still the turnpike company has a right to prevent the opening of the road, because it violates a provision of its charter, and injures or destroys an exclusive right which the charter of the turnpike company confers upon it. The chancellor held against the complainant company, and denied it any relief and dismissed its bill, and the company appealed. The court of chancery appeals reached the same result as the chancellor, but upon different grounds, and the complainant has appealed to this court and assigned errors.

The case, as it comes to this court, depends upon the validity of the charter provision, and its proper construction and interpretation. The court of chancery appeals report as facts that the proposed road if opened, would be a great public convenience, and that it was not designed or intended as a shun pike, for the purpose of depriving complainant company of its tolls, but from a sincere purpose to subserve the public convenience, but that it will materially injure the plaintiff, inasmuch as it will be used by a large number of people as a way of getting into the city of Nashville and leaving it without having to pay toll at gate No. 1 upon complainant's road, and this damage is estimated at from $500 to $1,500 per annum. It is not insisted that, outside and independent of the charter provision referred to, the complainant could prevent the building of this road, so that we pass at once to the consideration of this feature of the case, inasmuch as complainant now bases its right to the relief prayed for upon the provision in the charter. Upon this point, see the case of Hyde's Ferry Turnpike Co. v. Davidson Co., 91 Tenn. 291, 18 S.W. 626; Clarksville & R. Turnpike Co. v. Montgomery Co., 100 Tenn. 417, 45 S.W. 345.

The complainant company was chartered in 1831 under chapter 46 of the Acts of that year, and was organized and has been operated under that charter ever since. That act gives to the company all the rights, privileges, and immunities which had previously been conferred by the act of January 4, 1830, upon a turnpike to be built from Nashville to Murfreesboro, and it is in this latter charter that the provision in question is found at sections 7 and 8. Section 7 is as follows: "That it shall not be lawful to open or establish any other road so near as to injure or prejudice the interest of the said Nashville and Murfreesboro T. P. Co." Section 8 provides that the rights, privileges, and immunities granted to the original members or stockholders of the company should pass to and vest in their successors. This is all that is necessary to set out of the charter; and conceding, as found by the court of chancery appeals, that the present company is entitled to all the rights, privileges, and immunities of the original company, the question recurs, is the complainant company, by virtue of these charter provisions, entitled to enjoin the opening and use of this road as projected? It is not necessary to give any technical definition of the terms, "rights, privileges, and immunities," as used in the charter. It is sufficient to say that under these terms are embraced such things as are valuable to the company in the exercise of the franchises conferred upon it. There can be no serious doubt but that the legislature could grant to the complainant company such a right, privilege, or immunity as is contained in this act. Railroad Co. v. Hicks, 9 Baxt. 442; In re Binghamton Bridge, 3 Wall. 51, 77, 18 L.Ed. 137; Humphrey v. Pegues, 16 Wall. 244, 21 L.Ed. 326. Nor can there be any serious doubt but that, upon the acceptance of a charter with such provisions, it became a contract between the state and the complainant company, which, under section 10, art. 1, of the federal constitution, would become inviolable. As to what will be the ultimate effect or result of this holding, we will consider further on. We are now considering the question of the validity and proper construction of the provision. The court of chancery appeals was of opinion that it was not sufficiently definite to found a right in complainant to the relief asked in this case; and that court cites and relies in its holding upon principles announced in the following, among other, cases: State v. Clarksville & R. Turnpike Co., 2 Sneed, 90; Talmadge v. Transportation Co., 3 Head, 338; Gas Co. v. Williamson, 9 Heisk. 326; Clarksville & R. Turnpike Co. v. Montgomery Co., 100 Tenn. 417-421, 45 S.W. 345. In the first of these cases it is said, "Nothing passes against the state or public by implication." In the case last cited it is said, "Nothing is taken or conceded to a corporation but what is given in unmistakable terms or by an implication equally clear." And, again, the contract, to be effective, must be clearly expressed in the charter. Page 421, 100 Tenn, and page 346, 45 S.W. To the same effect, see, also, Railroad Co. v. Dennis, 116 U.S. 665, 6 S.Ct. 625, 29 L.Ed. 770; Slidell v. Grandjean, 111 U.S. 412, 4 S.Ct. 475, 28 L.Ed. 321. The correctness of this holding we are not disposed to question, but readily approve.

The court of chancery appeals was of opinion that the charter provision was indefinite, in that it did not define the territorial limits or distance within which the...