Wilkey v. Cincinnati, N. O. & T. P. Ry. Co.

• Decision Date: 29 June 1960
• Citation: 47 Tenn.App. 556,340 S.W.2d 256
• Court: Tennessee Court of Appeals
• Parties: Walter WILKEY et al., Complainants, Appellees, v. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY, et al., Defendants, Appellants. 47 Tenn.App. 556, 340 S.W.2d 256

Page 256

340 S.W.2d 256

Walter WILKEY et al., Complainants, Appellees, v. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY, et al., Defendants, Appellants.

47 Tenn.App. 556, 340 S.W.2d 256

Court of Appeals of Tennessee, Eastern Section.

June 29, 1960 Certiorari Denied by Supreme Court Sept. 9, 1960.

[47 TENNAPP 558] Whitaker, Hall & Haynes, Chattanooga, and C. P. Swafford, Dayton, for appellant Railway Company.

Geo. F. McCanless, Atty. Gen., and James M. Glasgow, Asst. Atty. Gen. and Solicitor, for appellant State Com. of Highways.

Walter Cheers and O. W. McKenzie, Dayton, for appellees.

McAMIS, Presiding Judge.

The State Commissioner of Highways and C. N. O. & T. P. Ry. Co. appeal from a decree of the Chancery Court of Rhea County permanently enjoining the Railway Company and the City of Dayton from closing a railway crossing on West Second Avenue in Dayton.

Wilkey and other property owners who had used the crossing on West Second Avenue in going to and from schools and the business sections of Dayton for as long as fifty years filed the bill against the Railway Company for an injunction requiring it to remove barricades placed in the street. Later, the bill was amended to make the City of Dayton a party defendant and to require it to show cause why a mandatory injunction should not issue enjoining it to remove the barriers and to keep West Second Avenue open for the use of complainants and any other persons lawfully entitled to its use.

The Railway Company answered the bill denying that it had obstructed the crossing and asserting that the State [47 TENNAPP 559] Department of Highways or its contractor had closed the crossing by erecting barriers on both sides of its tracks in connection with the elimination of the grade crossing for State Highway 30 on West Second Avenue and after the State, acting under contract with the Railway Company, the Federal Government and the City of Dayton, had re-routed Highway 30 to West Sixth Avenue, four blocks to the north, where an underpass had been constructed and opened for public travel and which was available for the use of complainants and the public generally.

The City of Dayton answered the amended and supplemental bill denying that it had participated in any way in the closing of the crossing and asserting that the crossing had been closed by the State Commissioner of Highways, in the proper exercise of the power conferred by statute upon the State Department of Highways to eliminate grade crossings. It was admitted that the City had never passed an ordinance permitting the closing of the crossing.

At the hearing on the Railway Company's motion for a dissolution of the injunction on bill and answer on August 1, 1959, the Chancellor refused to dissolve the injunction and reserved a ruling on whether the City should be required to remove the obstructions until a hearing on the merits which was set for August 31, 1959. By the same order the Honorable George F. McCanless, Attorney General for the State, was invited to intervene in behalf of the State Department of Highways.

On the date of the hearing on the merits, the State filed an answer and a cross bill against the City of Dayton alleging in substance that, acting jointly, and under contract with the Railway Company, the City of Dayton and the [47 TENNAPP 560] Federal Government, it had re-routed Highway 30 over West Sixth Avenue where it had constructed at great expense an underpass. It was specifically alleged that this public improvement project had been undertaken in reliance upon a resolution of the governing body of the City of Dayton agreeing to close the grade crossing on West Second Avenue upon completion of the underpass. It was admitted that the crossing had been closed by the State's contractor as required by his contract with the State, and it was asserted that this action was a lawful and proper exercise of the power conferred by statute upon the State Commissioner of Highways to eliminate grade crossings but, if not, an injunction should issue requiring the City to close the crossing by ordinance or, in the alternative, respond to it in damages. The cross bill was later dismissed by the State and need not be further noticed.

It is important to note, however, that the answer of the State Department of Highways admits that the City of Dayton is a municipal corporation organized under T.C.A. Sec. 6-1801, generally known as the City Manager Act; that, under T.C.A. Sec. 6-1901(15), it is invested with power to regulate and close streets within the City and that the City had taken no action effectually closing the crossing on West Second Avenue. Thus, there emerges from the pleadings the principal question: Does the State Department of Highways retain jurisdiction over the Streets of a municipality once, but no longer, used as a part of the State Highway System? If, as the Chancellor held, this question is to be answered in the negative are complainants remitted to an action for damages for a taking by the State of their proprietary rights under power of eminent domain?

[47 TENNAPP 561] As to the first question: T.C.A. Sec. 54-531 requires the State, through its Department of Highways, to 'construct, reconstruct, improve and maintain streets in municipalities over which traffic from state highways is routed * * *.'

T.C.A. Sec. 65-1107 provides:

'Elimination of grade crossings over public highways. The state department of highways and public works through its commissioner, shall have the power to eliminate grade crossings of any railroad or interurban railway track on any of the main traveled roads designated by the commissioner as included in the general highway plan of the state, whenever, in the discretion of said commissioner, the elimination of any such grade crossing is necessary for the protection of persons traveling on any such highway or any such railroad.'

T.C.A. Sec. 65-1108 empowers the commissioner, upon ordering...