Tenn. & Ala. R. Co. v. Adams

• Decision Date: 31 December 1859
• Citation: 40 Tenn. 596
• Parties: THE TENNESSEE & ALABAMA R. CO. v. E. W. ADAMS.
• Court: Tennessee Supreme Court

40 Tenn. 596

THE TENNESSEE & ALABAMA R. CO.

v.E. W. ADAMS.

Supreme Court of Tennessee.

December Term, 1859.

FROM DAVIDSON.

This cause was tried before his Hon. Judge Baxter, at the September term, 1858.

Ewing and Cooper, for the plaintiff in error; J. C. Thompson, for the defendant in error.

WRIGHT, J., delivered the opinion of the court.

The plaintiffs in error were incorporated for the purpose of constructing a railroad from Nashville, by the way of Franklin, to the line between the State of Tennessee and Alabama, in the direction of Florence; and the first question is, whether, under their charter, they had the right, in the construction of their road, to enter the corporate limits of the city of Nashville? The Circuit Judge was of opinion they had, and we think the weight of authority sustains him. The words, from a town or city, used in a charter for a work or improvement like this, it has been held, must be taken inclusively. The case of the Commonwealth of Pennsylvania v. The Erie and North East R. Co., 27 Penn. 339, is directly to this effect, and is supported by numerous other decisions. 1 Strange, 179, 181; 10 Johns. 389, 392; 6 Paige, 554; 7 Barb. 416.

The right of the legislative power to authorize the building of a railroad within a town, or city, or upon a street or other public highway, is not now to be doubted. 27 Penn. 339; 1 Barn. and Ad. 30; 23 Pick. 328;7 Barb. 509; 2 Am. Railw. C. 269; 1 Craine, 177.

Having a right then to enter the city, did the charter of the plaintiffs in error authorize them to occupy the bed of the particular alley in question with their road; and in so doing were they guilty of any actionable injury to the defendant? They can claim nothing that is not clearly given them by the act of incorporation. Any ambiguity in the terms of the charter must operate against them, and in favor of the public. 11 Pet. 544;27 Penn. 339. Yet this rule of construction is not to deprive them of the benefit arising from the obvious sense of the charter; and, moreover, whatever is essential to the enjoyment of the thing granted will be, necessarily, implied in the grant.

This charter confers upon them all the rights, powers and privileges, and makes them subject to all the liabilities and restrictions contained in the charter of The Nashville and Chattanooga Railroad Company. In the charter of this latter corporation power is given to construct its road across or along any public road, so that said road shall not be thereby obstructed. And in another section it is prohibited from obstructing any public road, without constructing another as convenient as may be. The term public road as here used may not, and we think does not, embrace the streets and alleys of a city. But whether it does or not, there is nothing in the record to show that the plaintiffs in error, in the use of this alley, had been guilty of any trespass, or wrong toward the defendant. If it does not, the power to come within the city of Nashville carries with it, by implication, the power, if need be, to locate the road upon a street or alley; for instance, if a company be authorized to make a railroad, by a straight line between two designated points, this implies the right to run upon, along, or across all the streets or roads which lie in the course of such line. So the power to enter the city, of necessity, gives the right to locate the road somewhere, and if need be, upon a street or alley. 27 Penn. 354-5; 1 Am. Railw. C. 238, 328, 578, 580. It is not contended, nor is it shown that this alley was an unsuitable or improper location; and how can we assume that another alley, or a street, or private property should have been used in its stead? How can we say the plaintiffs have exceeded the discretion given them in the charter? Is it, prima facie, true even that in the construction of a railroad in a city, private property, rather than a street or alley, is to be taken? It does not appear how far the use of this alley for ordinary purposes, is interfered with by this railroad; and if it did, it is not shown that the plaintiffs in error were not fully justified in its appropriation to the use of their road. 9 Paige, 170; 2 Am. Railw. C. 579. Prima facie at least, we must take it they were. But if the term public road, as used in the charter of The Nashville and Chattanooga Railroad Company, embraces streets and alleys, still, although the company is allowed to use them so as not to obstruct them; yet it has been held, in order that the grant may have effect, that such a clause does not entirely forbid the company from going on any street or alley, and that they must be allowed to create such impediments as cannot be avoided. 27 Penn. 356; Redf. 520. But those which are not absolutely necessary to the making and using of the railroad are unlawful; and this is so whether the obstruction be expressly prohibited or not, and whether the company be expressly required to construct another road, or passway, or not. It is alike the duty of the railroad company to leave the street or alley, as nearly free from obstructions as they can, and...