Tennessee Public Service Co. v. Price

• Decision Date: 16 April 1932
• Citation: 65 S.W.2d 879
• Parties: TENNESSEE PUBLIC SERVICE CO. v. PRICE.
• Court: Tennessee Supreme Court

65 S.W.2d 879

TENNESSEE PUBLIC SERVICE CO. v. PRICE.

Court of Appeals of Tennessee, Eastern Section.

April 16, 1932.

Certiorari Denied by Supreme Court October 15, 1932.

Appeal from Chancery Court, Knox County; Robt. M. Jones, Chancellor.

Bill by the Tennessee Public Service Company against Mrs. Katherine Price. From an adverse decree, complainant appeals.

Affirmed.

Cates, Smith & Long, of Knoxville, for appellant.

De Vault & Dawson and L. M. G. Baker, all of Knoxville, for appellee.

PORTRUM, Judge.

This bill was filed to enjoin the defendant, Mrs. Katherine Price, from molesting or interfering with the workmen of the complainant in the construction of a high-power transmission line over and above eight of her adjoining town lots in the suburb of the city of Knoxville. The right to construct the line at the place is asserted under a conveyance executed by a predecessor in title of Mrs. Price, conveying an easement for rights of way purposes. This deed was executed September 17, 1912, by J. A. McCampbell, the then owner of the land, to the Tennessee Power Company, its successors and assigns, and the complainant, Tennessee Public Service Company, is the successor of the grantee. The complainant sought a construction of this deed, and prayed for a decree defining its right under it; but, in the event the construction was not favorable to the complainant, then it asserted the right to appropriate the land under its power of eminent domain. The defendant, in her answer, resisted the construction placed upon the deed by the complainant, and also denied the right of the complainant to condemn the land, under the condemnation statute, in the chancery court; she did not seek to have her damages ascertained and decreed her in this proceeding. An injunction was issued, and the complainant went into possession and constructed its power line pending this proceeding, and at the hearing the chancellor construed the deed favorable to the defendant, with the effect that the company had no right, under the deed, to construct its line at the place it did. The chancellor declined to permit complainant to prosecute a condemnation proceeding in his court and in this cause; the complainant prosecuted a special appeal to this court, calling in question only the chancellor's construction of its deed.

The deed grants in general terms an indefinite easement, and the court is called upon to construe this indefinite grant and make the easement definite. The pertinent portions of the deed (which is a printed form) reads:

"* * * Do hereby grant, sell and convey unto the party of the second part, its successors and assigns, the perpetual right, privilege and easement to enter, and to erect, maintain, repair, rebuild, operate and control one or more lines of poles and towers, and wires or cables strung upon the same and from pole to pole and from tower to tower, for the transmission of electric current, with all necessary foundations, anchors, guys and braces, to properly support and protect the same, and also a telephone or telegraph line or lines with all necessary poles, cables, wires, appliances and fixtures for said lines, upon, over and across the land owned by the party of the first part in the Second Civil District of Knox County, Tennessee, bounded and described as follows: [Here follows a description of the McCampbell tract of land. This description is filled in with pen and ink.]

"This is not a conveyance of the fee in said land, but only of the rights, privileges and easements herein set forth.

"The exact location of said wires, cables, poles, towers, lines, etc., is to be selected by the party of the second part after its final survey has been completed.

"The party of the first part may cultivate the land under said line of wire in such a way as not to interfere with the rights and privileges hereby granted or the usages and purposes herein set forth, and the party of the first part (except as above provided) shall not have any right to, or claim for damages of any nature against the party of the second part resulting from the exercise and enjoyment of the rights and privileges hereby granted.

"The party of the second part shall have the right to place or replace any of said poles or towers at any time it may desire."

There was never any formal selection made by the party of the second part of the bounds of the right of way after its final survey had been completed. However, there was then in existence — at the date of the execution of the deed — a blueprint prepared by engineers in the city of New York detailing the manner and place of construction of power lines over this property, as well as other property over which this line as well as other lines ran into the city of Knoxville. This blueprint defined a right of way of one hundred feet, and established a center line, dividing the right of way into two sections of fifty feet each. It designated a line of poles in the center of each of these sections. In 1913 the Tennessee Power Company constructed a power line over this property on the fifty feet lying to the south of the center line. And adjoining property was condemned for the width of one hundred feet conforming to this blueprint (we assume it conformed to the blueprint, the record shows a strip of one hundred feet of the adjoining property was condemned).

Since 1913 McCampbell sold his boundary of land, referring in his deed to this and another right of way. And his then deed conveyed the lands, which finally passed into the hands of the defendant, Mrs. Katherine Price, but her deed makes no reference to the right of way. At the time she purchased her portion was platted and laid off in eight town lots, fronting upon an established street called Upland avenue; this street was...