Tennessee Coal, Iron & R. Co. v. Paint Rock Flume & Transportation Co.

• Decision Date: 08 November 1913
• Citation: 160 S.W. 522,128 Tenn. 277
• Parties: TENNESSEE COAL, IRON & R. CO. v. PAINT ROCK FLUME & TRANSPORTATION CO.
• Court: Tennessee Supreme Court

160 S.W. 522

128 Tenn. 277

TENNESSEE COAL, IRON & R. CO. v. PAINT ROCK FLUME & TRANSPORTATION CO.

Supreme Court of Tennessee.

November 8, 1913

Appeal from Chancery Court, Cocke County; Hal H. Haynes, Chancellor.

Suit by the Tennessee Coal, Iron & Railroad Company against the Paint Rock Flume & Transportation Company. From a decree dismissing the bill, complainant appeals. Affirmed.

W. J. & W. D. McSween, of Newport, for appellant.

Holloway & Hickey, of Morristown, for appellee.

GREEN J.

This suit was brought by complainant, the Tennessee Coal, Iron & Railroad Company, to enjoin the defendant, the Paint Rock Flume & Transportation Company, from the occupation of complainant's land with a flume, and from diverting to said flume a portion of the waters of Paint Rock creek. The bill also sought to recover damages from defendant. Answer was filed, and the chancellor dismissed the bill, and complainant has appealed to this court.

The defendant company was organized under chapter 138 of the Acts of 1901. This act provides for the incorporation of flume companies, and confers upon such companies the right of eminent domain, authorizing them to condemn "a right of way not more than thirty feet over the lands of private individuals in pursuance of the general law authorizing condemnation of the easement of right of way for works of internal improvement as set forth in sections 1325 to 1348 inclusive, in the Code of Tennessee."

The said act also authorizes flume companies to erect and operate flumes "for the reception of and passage of water, for the floating of lumber, tan bark, and to do and perform the general duties of common carriers of goods so far as practicable." The act further provided that companies organized thereunder should furnish equal facilities to all persons without discrimination in service or charges, and imposed upon such corporations all the duties responsibilities, and liabilities now resting on other quasi public corporations under the laws of the state of Tennessee.

It was averred in the bill that the condemnation proceedings by which defendant claimed to have acquired a right of way for its flume across complainant's land were irregular and illegal in several particulars. There has been much discussion in argument and briefs of counsel with reference to the said proceedings. We think, however, it is unnecessary at this time to consider the propriety of the methods used by defendant in obtaining this right of way. The flume has been erected, and, rightfully or wrongfully, defendant company has come into possession of a right of way across complainant's land, and is occupying the same with its flume.

Our Code provisions as they appear in Shannon's Compilation are as follows:

Section 1865: "No person or company shall, however, enter upon such land for the purpose of actually occupying the right of way, until the damages assessed by the jury of inquest *** have been actually paid; or, if an appeal has been taken until the bond has been given to abide by the final judgment as before provided."

Section 1866: "If, however, such person or company has actually taken possession of such land, occupying it for the purpose of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages as upon the trial of an appeal from the return of a jury of inquest."

This court has repeatedly held that the several remedies, given by our statutes to parties whose land has been occupied for purposes of internal improvement by public service corporations, are exclusive. That is to say, the landowner must obtain redress in the condemnation proceedings, or in an appeal therefrom (Shannon's Code, § 1861), or he may, upon his own petition for a jury of inquest, have his damages assessed, or he may sue for damages in the ordinary way (Shannon's Code, § 1866). He cannot bring a suit of ejectment against the corporation, nor is he entitled to an injunction which will have the effect of dispossessing such corporation from a right of way already occupied by it. Colcough v. N. & N. R. R. Co., 2 Head, 172; Tennessee & A. Co. v. Adams, 3 Head, 597; Railroad v. Cochrane, 3 Lea, 479; Parker v. Railroad, 13 Lea, 670; Saunders v. Railroad, 101 Tenn. 206, 47 S.W. 155; Doty v. Telephone & Telegraph Co., 123 Tenn. 329, 130 S.W. 1053, Ann. Cas. 1912C, 167.

The flume company, therefore, if it be a public service corporation lawfully endowed with the right of eminent domain, cannot be deprived of the easement which it has obtained over the lands of complainant, even though it may have secured such right of way in an illegal manner. The complainant must look to its statutory remedies for redress.

The complainant, however, insists that the act conferring the right of eminent domain upon companies such as this is unconstitutional, for the reason, as it urges, that a flume is not a public use, and a flume company cannot be considered a public service corporation, or corporation for internal improvement, which may legally be clothed with the right of eminent domain. More particularly, as applicable to the facts of this case, complainant maintains that, at any rate, this defendant company is not undertaking to serve the public, and its flume is not devoted to the public use, nor adapted to such a use.

It appears that the Patterson Lumber Company owns a large body of timber in Cocke and Green counties in the mountains some eight or nine miles from the railroad. It was found very expensive to haul this timber out of the mountains to a place where it could be transported to market. Persons interested in the ownership of the Patterson Lumber Company accordingly incorporated the defendant flume company, and proceeded to construct a flume from the property of the Patterson Lumber Company in the mountains to the railroad, a distance of about nine miles. The flume is fed by the waters of Paint Rock creek, and is constructed along the banks of this creek, passing through the property of complainant for about one mile.

The proof shows that the greater part of the lumber, by far, that has been transported in this flume was the property of the Patterson Lumber Company. The flume company, however has transported lumber and bark for other patrons and exhibits certain contracts which it now has for further service to individuals other than the Patterson Lumber Company.

This flume runs from a rough and sparsely settled country. There is however, undoubtedly valuable timber and bark in this section, which can be gotten out much more readily by means of the flume than in any other way. While the greater part of this timber, bark, etc., is owned by the Patterson Lumber Company other parties, including the complainant, have extensive and valuable holdings in this locality, and the flume can be operated to the advantage of all these persons. Under its charter, the flume company is required to serve all such persons alike, without discrimination in charges or the character of service rendered.

We are of opinion that the fact that only a comparatively small number of people will be benefited by the operations of this flume does not deprive the enterprise of its public nature.

A public use may be limited to the inhabitants of a small or restricted locality. Gilmer v. Lime Point, 18 Cal. 229; Talbot v. Hudson, 16 Gray (Mass.) 417; Township Board of Education v. Hackmann, 48 Mo. 243; Coster v. Tide Water Co., 18 N. J. Eq., 54; Pocantico Waterworks v. Bird, 130 N.Y. 249, 29 N.E. 246.

An enterprise does not lose the character of a public use because of the fact that its service may be limited by circumstances to a comparatively small part of the public. Dietrich v. Murdock, 42 Mo. 279; De Camp v. Hibernia Underground R. Co., 47 N. J. Law, 43.

A belt line railroad (Collier v. Railroad, 113 Tenn. 96, 83 S.W. 155) has been held by this court to be a public service corporation, although under the facts of that case it was apparent that said corporation could serve directly only a limited portion of the public. Although the number of persons who will be benefited by the operation of this flume is small, the section through which it passes being sparsely settled, nevertheless, it may be operated to the great advantage of all persons owning timber and bark in this community, and we are satisfied that such a flume may properly be considered as of public use.

Boom companies have been held to be lawfully endowed with the right of eminent domain. Cotton v. Miss., etc., Boom Co., 22 Minn. 372; Patterson v. Miss., etc., Boom Co., Fed. Cas. No. 10,829. So have oil pipe lines ( West Va. Transp. Co. v. Volcanic Oil Co., 5 W. Va. 382), and canals and waterways (15 Cyc. 594 and cases cited).

As said in Ryan v. Terminal Co., 102 Tenn. 111, 50 S.W. 744, 45 L. R. A. 303, anything which will "enlarge the resources, increase the industrial energies, promote the productive power of, or afford increased facilities for, the rapid exchange of thought or trade, or otherwise answer the growing needs of the community as such," may be treated as a public use, and, as before seen, the fact that the particular community served is small does not affect the question.

The Legislature, therefore, was well within constitutional limitations in authorizing the incorporation of flume companies as public service corporations, and conferring upon such companies the right of eminent domain.

These companies may be of the utmost advantage in this state, where we have numerous bodies of fine timber inaccessible to railroads, rivers, and other ordinary...