Piercy v. Johnson City

• Decision Date: 10 October 1914
• Parties: PIERCY v. JOHNSON CITY.
• Court: Tennessee Supreme Court

169 S.W. 765

130 Tenn. 231

PIERCY v. JOHNSON CITY.

Supreme Court of Tennessee.

October 10, 1914

Certiorari to Court of Civil Appeals.

Action by H. H. Piercy against the City of Johnson City. A judgment of the circuit court for the defendant was reversed by the Court of Civil Appeals, and the defendant brings certiorari. Judgment of the Court of Civil Appeals reversed and of the circuit court affirmed.

James B. Cox, of Knoxville, for plaintiff.

Geo. C Sells, of Johnson City, for defendant.

WILLIAMS J.

This action was commenced by the issuance, at the instance of plaintiff, of a summons from the circuit court of Unicoi county commanding the defendant, the city of Johnson City to answer in that court the plaintiff "in an action of damages caused to his land in Unicoi county by the diversion of the waters of two large springs out of their natural channel and away from his land below, by said city of Johnson City, and to his damage in the sum of $2,000.00."

This writ was addressed to the sheriff of Washington county, in which the defendant city lies, and was by the sheriff there served on the mayor, S.E. Miller, the highest officer of the city.

The city defended on the ground that it was not thus subject to be sued out of the county of its situs.

The circuit judge held that the circuit court of Unicoi county had not jurisdiction of the city under the process referred to. On appeal the Court of Civil Appeals, Judges Wilson and Hall dissenting, reversed the judgment; and the city has filed a petition for the writ of certiorari to have here reviewed the judgment of the Court of Civil Appeals.

The city, in the exercise of the power of eminent domain given it by statute, had taken for its waterworks system the output of certain springs the waters of which had flowed and would have continued to flow through plaintiff's land; this, without resorting to condemnation proceedings.

The point thus raised appears to have been decided in but few cases. In Baltimore v. Meredith, etc., Turnpike Co., 104 Md. 351, 65 A. 35, 10 Ann. Cas. 35, the court, for reasons that are not satisfying, held that a municipal corporation may be sued outside the county in which it is located in an action for trespass on realty lying in another county. The contrary was held by the Supreme Court of Pennsylvania in Heckscher v. Philadelphia, 6 Sadler (Pa.) 346, 9 A. 281, in respect of a suit for damages for injuries to plaintiff's colliery in a county other than that of the municipal corporation.

The landowner, in event his land is taken or occupied by another by the exercise of the right of eminent domain without resort to condemnation proceedings, may proceed to sue the taker in an ordinary action of damages. Saunders v. Railroad, 101 Tenn. (17 Pickle) 210, 47 S.W. 155; Railroad v Cochrane, 3 Lea (71 Tenn.) 478.

We need not discuss or decide whether the action for damages to realty growing out of the diversion of the flow of water from the springs is one transitory or local in character, as to which see Railway v. Weaks, 13 Lea (81 Tenn.) 149 and Mattix v. Swepston, 127 Tenn. 693, 155 S.W. 928.

If we assume, and proceed on that basis, that an action for injury to realty is local in character, then we have two rules seemingly applicable, which are in opposition, the one to the other. The first would remit the party plaintiff for action to Washington county in which is located the municipality to be...