Union Ry. Co. v. Hunton

• Decision Date: 24 April 1905
• Citation: 88 S.W. 182,114 Tenn. 609
• Parties: UNION RY. CO. v. HUNTON et al.
• Court: Tennessee Supreme Court

88 S.W. 182

114 Tenn. 609

UNION RY. CO. v. HUNTON et al.

Supreme Court of Tennessee.

April 24, 1905

Appeal from Circuit Court, Shelby County; J. P. Young, Judge.

Condemnation proceedings by the Union Railway Company against Mrs. E. M Hunton and another.From a judgment of the circuit court on appeal from the determination of a jury of view, the petitioner appeals.Reversed.

McFarland & Canada, for appellant.

Wilkinson & McGehee and Carroll, McKellar, Bullington & Biggs, for appellees.

NEIL J.

This was a condemnation suit brought by the Union Railway Company on the 25th of May, 1903, against the defendants, Mrs. E. M Hunton and S. M. Wright, for the purpose of condemning a right of way 200 feet in width across the property of the defendant Mrs. Hunton, fully described in the petition.

The defendantS. M. Wright was a lessee, having a lease upon the property executed April 29, 1903, for a period of 10 years from May 1, 1903, to May 1, 1913, at a rental of $500 per year.According to the terms of this lease the tenant was to keep down taxes, and to turn over to the landlord at the end of the term any improvements he might erect upon the land during the term.Having this claim to the premises in question, he was a necessary party to the proceeding.

The parties, therefore, who are the defendants in error, and who were the defendants named in the petition of the Union Railway Company for condemnation, are Mrs. E. M. Hunton, the owner in fee, and S. M. Wright, the alleged lessee.

In making the defendantS. M. Wrighta party, and seeking the condemnation of the leasehold interest claimed by him at the time of the condemnation of the fee of Mrs. Hunton, the petition, as to the lease and the title of S. M. Wright thereunder, alleged as follows:

"Petitioner is advised that the said Wright wrongfully obtained whatever lease he has upon this land as against this petitioner, and in bad faith to it, and had been previously advised of the necessity of petitioner occupying this land for its roadbed, and had pretended to assist petitioner in the obtention of this right of way for its purposes, but, instead of doing so, secured this lease wrongfully to himself.

"Petitioner now makes the said S. M. Wrighta partydefendant hereto, in order that he may appear and set up whatever interest he has, and that upon condemnation of this land and determination of what compensation shall be paid for the taking of the same this compensation may be distributed between the defendant Mrs. Hunton and the said S. M. Wright, if it appears that he has any interest in the said land."

The defendantS. M. Wright filed an answer to the petition for condemnation, in which, after denying the prior knowledge and fraud and bad faith charged against him, he continued:

"On the contrary, respondent avers that he obtained the lease in good faith, for the purpose of erecting a manufacturing plant thereon, and has already expended the sum of about $800 in the erection of said plant; that the property is peculiarly valuable for the uses to which he desires to put it; that, being at the junction of several railroads above mentioned, it affords respondent splendid opportunities to advertise the wares to be manufactured by him, and he states that it will be a great injury to him for the said land to be taken for the uses of the petitioner."

The court, upon the petition and the answers of the defendants thereto, appointed a jury of view, who assessed the damages to both of the defendants at $5,500, $1,000 of which was to go to the defendant and lessee, Wright.

From this report of the jury of view all the parties, the petitioner and the defendants, appealed.

The case subsequently came on for trial before the circuit judge and a jury in the usual way, at the conclusion of which trial the jury returned a verdict in favor of Mrs. Hunton for $7,650, with interest, and in favor of the defendant Wright for $1,500 and interest.

Upon this verdict the court rendered judgment against the petitioner for said sums of $7,650 and $1,500, respectively, with interest, making a total of $9,653.25, and all costs.

A motion for new trial was made and overruled, whereupon an appeal was prayed by the railway company to this court, and errors have been assigned.

The first, second, and sixth assignments all depend principally upon the contention of the petitioner that Wright's lease was procured under such circumstances as prevented it being properly considered as a fair expression of the rental value of the land by reason of the matter set forth in the excerpt above taken from the petition.It was contended by the petitioner that Wright, having learned from the company that it deemed the land in question essential to the further progress of its road, and that it must be acquired either by purchase or condemnation, sought out Mrs. Hunton, and procured the lease from her, not with a view of really using it, but for the purpose of, and with the expectation of, reaping a profit out of the condemnation proceedings in the valuation of the lease; that the taking of the lease by Wright was a mere speculation, based upon the certainty that the property would soon be taken from him, and that he would thereby obtain a profit from the lease without bearing its burdens, or after having borne only a small proportion of its burdens.

Having reference to this contention, the appellant assigned errors 1, 2, and 6, as follows:

"(1)The court erred in permitting the alleged lease to the defendantS. M. Wright to be used as an absolute criterion for value, and to permit Le Master and all the other witnesses to state the value of the property predicated upon this alleged lease.

"(2)The court erred in not permitting the cross-examination of the defendantS. M. Wright with reference to the bona fides of his lease, and as to his having deliberately made the lease, and erected hastily certain improvements with a full knowledge of the fact that the railway company had surveyed the land in question, and was preparing to institute condemnation proceedings."

"(6)The court erred in not permitting any testimony to be introduced upon the issue made in the pleadings as to the bona fides of the lease to S. M. Wright, and in not permitting all the facts and circumstances of the lease to be shown."

The first assignment, in so far as it makes the point as a general one, directed to the whole record, that the court allowed the lease to be used as an absolute criterion of value, cannot be entertained, because too general.In so far as it is directed to special questions and answers indicated under the assignment, it is equally untenable.

The first question specified was not answered at all.In lieu thereof, after a ruling of the court, the following questions were asked, viz.: "What would you consider the fair cash value of property that produced this $500 net per year?Q.By Witness: Are you speaking now of this particular property?Reply of Counsel: Any property that produced a yearly return of $500 net.Ans.By Witness: Of course, that would indicate a valuation of $8,300."The witness had previously stated that a fair rental would be 6 per cent. on the value of the property.

This witness had already been examined touching the various elements of value proper to be considered in cases of the character before the court, and had given his opinion that the property was worth $3,000 in acre, or $4,000 for the one and a quarter acres.The questions above set out were asked the witness on cross-examination for the purpose of testing the correctness of his previous opinion.The substance of the matter was that counsel for the defendant, cross-examining the witness, pressed upon his attention one especial element of value, or means of arriving at value, for the purpose of demonstrating the incorrectness of the opinion previously expressed by the witness.We are of opinion that this was a fair use of the point in question, inasmuch as the court has held that the rental value is one consideration to be looked to in condemnation cases.McKinney v. Nashville,102 Tenn. 137-140, 52 S.W. 781, 73 Am. St. Rep. 859.

The questions and answers quoted in the brief from the testimony of Mr. Snowden are subject to the same explanation and disposition as that given in respect of the testimony previously considered--that of Mr. Le Master.

So much of the first assignment as concerns the informity of the lease as an element of value by reason of the circumstances under which it was taken will be considered in connection with the second and sixth assignments.

It is true, as complained in the second assignment, that the court below refused to allow the petitioner to cross-examine defendant Wright for the purpose of showing that he had procured the lease under the circumstances stated in the petition; but it is also true that this refusal of the court occurred after counsel for the petitioner had stated, in the same connection, in substance, that he did not hope to obtain anything by the cross-examination, and also after he had stated that his purpose was not to weaken the effect of the lease as evidence of the value of the land, but to lay grounds for denying to Wright any compensation at all for the lease.In view of these two statements of counsel, the court acted correctly in refusing the right to cross-examine upon the subject.If the counsel expected to obtain no benefit by the cross-examination, and so stated to the court, it would have been an idle thing to take up time in going through such an examination.For the same reason he could not hope to impair the lease in any way by such examination.Moreover the time for wholly preventing a recovery on the part of Wright came to an end when the judgment of...