# Lewisburg & N. R. v. Hinds

> Tennessee Supreme Court · December 15, 1915 · 134 Tenn. 293

URL: https://www.frixlaw.com/law-library/cases/8301360

## Case

- **Full name:** Lewisburg & N. R. Co. v. Hinds
- **Court:** Tennessee Supreme Court
- **Decided:** December 15, 1915
- **Citations:** 134 Tenn. 293
- **Precedential status:** Published
- **Opinion:** Dissent by Buchanan
- **Judges:** Buchanan, Neil
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8301360

## Opinion text

BuchaNAN, J.
(dissenting).
From time to time for more than sixty years the subject of incidental damages in condemnation cases has occupied the attention of the able judges and distinguished lawyers whose labors are part of the judicial history of Tennessee. During that time there has been no provision in the constitution of this State dealing with the subject of incidental damages. The leading case (Woodfolk v. N. & C. R. R. Co., 32 Tenn. [2 Swan], 422) calls attention to this fact, in respect of the constitution in force then, and no change has since been made. During all this time such right as now exists in a landowner to recover incidental damages in condemnation cases has been regulated by legislation, and by judicial construction of such legislation. The cases construing our legislation, and touching the right directly and remotely, are cited in Vaulx v. Railroad, 120 Tenn. (12 Cates), 316, 108 S. W., 1142 . See, also, the later case of Hord v. Railroad, 122 Tenn. (14 Cates), 399, 123 S. W., 637 , 135 Am. St. Rep., 878 , 19 *355 Ann. Cas., 331. In each of these eases the opinion was by the present chief justice of this court.
To the point made by condemnors in the present case that in none of the former adjudications in this State was there to be found a holding that “sparks, fire, noise, smoke, soot, cinders, escaping fumes, gases, and vibration, caused by the operation of a railroad,” were to he regarded as incidents of the taking and elements to be considered in ascertaining damages incidental to the taking, the majority opinion responds as follows:
“It is'insisted in behalf of the plaintiff that our cases have already fixed, as the only true criterion of incidental damages, the loss caused by the special physical consequences resultant from the erection of the railroad as distinguished from those caused by its operation, such as the separation of the land, one part from the other, by the railroad track, the making of cuts and fills, the inconvenience of reaching barns and other outhouses, the impairment of access to roads or streets, and the like, and that the recognition of impairment to the market value of the residue of the land not taken, from other causes, is a distinct departure from precedent. This is a mistaken view. In several of our cases the obvious physical inconveniences just referred to, and others like them, are mentioned as instances, but in no case are they held exclusive, or held out, or suggested, as covering the whole field. We have no case which holds that impairment of market value is not a true criterion. On the contrary, we have two in which it was held that this was a proper matter to consider in *356 estimating the damages. Paducah & Memphis Railroad Co. v. Stovall, 59 Tenn. (12 Heisk.), 1, 3, 4; Acker v. Knoxville, supra. In the first of these cases the court approved, as unexceptionable, the charge of the trial judge in which he had instructed the jury to consider as an element ‘the increase or decrease in the price of the remainder of the tract.’ In the second case the direct point was ruled, in a controversy between an ' abutting owner and the city of Knoxville, under a statute allowing damages resulting from a change in the grade of streets. As indicated in the last case, the only way in which the open physical inconveniences of the kind we have previously referred to could be made available as elements of damage would be the extent to which they had impaired the market value. ‘ These incidents,’ said the court, ‘would be all such as one would take into consideration in estimating the value of the property, after the grading had been completed. So that the test of the difference between the market value, just before the grading and just, afterwards, would be a true one, and would indicate the real injury suffered; the incidents referred to sufficing to direct the attention of the jury to the special elements of the injury and the benefits arising out of the grading, and necessary to be taken into consideration in forming an estimate of the value.of the property before and after.’ But it was never supposed in these cases, or in any other of our cases, that if other elements impairing market value appeared that these were to be excluded. Indeed, as we have already pointed out, in the case of *357 Alloway v. Nashville, supra, the damages to be apprehended from the mere propinquity of the erection must he considered in estimating the incidental damages. . . . We need say no more than we have already said as to the overwhelming weight of authority in other jurisdictions as to the propriety of considering” such a matter and “all that it reasonably portends in the way of direct injury to the property, and hence impairment of market value. Indeed we think it would he an impeachment of the fairness of our jurisprudence if the rule were otherwise. It would be nothing less than saying that our courts could, not only within our constitution, hut under a true-conception of justice, compel one of our citizens to surrender a part of his” tract of land to another,- a public service corporation, without an adequate return for the impairment of his estate, so imposed, or that a man could be compelled to surrender part of his “land for, say, the erection of a public pesthouse, and receive no compensation for injury to the market value of the rest of his -tract. To exercise 'such a power would be, not to administer justice, but to inflict oppression. Moreover, it would deny and destroy the very principle by which the courts profess to be guided in conducting such matters — that the landowner should be considered as one willing, but not compelled, to sell, and the condemnor as one willing, but not compelled, to buy. No one can suppose that the landowner would consent to sell a specific part out of a tract without considering how the taking of that part would affect the rest of the tract, and without exacting *358 compensation for the lessening of th& market valne of the latter thereby. He would do this, if left free to act, by adding to the price of the part sold. In condemnation cases he cannot do this, but must look to the obtention of a separate sum from the purchaser to cover such incidental damage. Can any one suppose that if free to contract, he would demand anything less than the whole damage to the market value of the land left in his tract? Can any one say his demand would not be just? . . .
“Haying stated the principles which we think control the controversy, we shall now inquire whether the objections made to the charge of the court are well taken.”
The response quoted above, in my judgment, begs many questions involved in the point made by con-demnors.
The response, if sound law, under our jurisprudence cannot fail to strike with amazement all who read our former decisions, and realize that of all the brilliant judges and counsel whose names appear in our reported cases not one has seen the force of the argument embodied in the excerpt from the opinion of the majority. From the Woodfolk Case, decided more than sixty years ago, to the fiord Case, decided in 1909, bar and bench alike stand condemned of overlooking in the construction of our statute the elements of incidental damages aforesaid. And many worthy litigants, seeking all their rights in condemnation cases, have gone forth from a trial of their causes in our courts of justice with *359 only part of the full relief to which they were in law entitled. Bnt, says the Opinion of the majority:
“In several of onr cases, fhe obvious physical inconveniences jnst referred to, and others like them, are mentioned as instances, bnt in no case are they held exclusive, or held out, or suggested as covering the whole field. ’ ’
Now the question is, Why was the whole field not covered? It was the duty of attorneys for property owners litigant in condemnation suits to cover the whole field in their demands for their clients. It was the duty of the courts to cover the whole field in the construction of the statutes.
The opinion in the Woodfolk Case is devoted to a general discussion of the subject of the exercise of the right of eminent domain, as well as the subject of damages sustained by the landowner, incident to a taking under that right. The opinion in that case was rendered by Judge Cabuthers. His associates were Judges TotteN and McKiNNey, all illustrious men. The case was presented to that great court by the most eminent counsel of that day. There is similarity in the character of the real estate involved in that case and in this. There, as the opinion shows—
“the defendants located their road for about five hundred feet on a six-acre lot of plaintiff in the vicinity of Nashville. The road runs through the corner of the lot, separating about three-quarters of an acre from the main lot. The plaintiff has his family residence on the lot, and it is handsomely and tastefully improved. *360 The part separated has upon'it some negro houses, a cowhouse, well, and springhouse. ’ ’
The property in the present case lies in the vicinity of Nashville, was vacant before the taking, inclosed by a wire fence, and comprised fifty-six acres.- A strip of it was taken, one thousand feet long, near the eastern margin of the tract, but leaving on the east side of the strip taken a part of the original tract containing three and twenty-one one-hundredths acres, and leaving west of the tract taken the remainder of the original tract, this remainder comprising fifty and forty-three one-hundredths acres. Before the taking this tract was irregular in shape; its east line was one thousand feet; its north line two-thousand and two hundred and twenty-five feet; its south line, two thousand and two hundred and seventy-five feet. It had not been subdivided, but was acreage property.
All the elements of incidental damage were involved in the Woodfolh Case which could possibly be involved in the present case. There the proximity to the railroad line of all the land not taken was much greater than in the present case, and there the family residence of the owner was located on the part of the tract which was not taken, while in the present case there is no such thing. How happened it that no one in that great case, either lawyer or judge, observed the existence of the elements of incidental damage which are said to exist in this case by the majority opinion? I cannot believe that so great an oversight was made. I think the bar and court alike must have seen the distinction between an *361 incident of taking and an incident of operation, and that an incident of operation is a mere consequence of taking. Again I think they must have had in mind a principle so well expressed by another great judge in Railroad v. Bingham, 87 Tenn. (3 Pickle), 522, 11 S. W., 705 , 4 L. R. A., 622, where, in speaking for the court, Judge Lurton said:
“The railroad company, in so far as its occupation and use of this street is permitted by its contract and the taxing district ordinances, is not a trespasser. "What the law expressly authorizes is not unlawful, and cannot he regarded as a nuisance. The running of railroad trains along a public street devoted to residential purposes, and without any actual obstruction of the right of an abutting owner to light or air, or ingress and egress to and from his premises, may in most cases, be regarded as injurious to the property of lot owners. A resident upon such a street will undoubtedly he subjected to more or less discomfort and inconvenience by the mere passage of trains in front of his premises. Unpleasant odors and disagreeable noises at inconvenient hours are likely to be experienced. Life will not be altogether so comfortable. But does the law give damages for such consequential injuries'? To entitle a plaintiff to recover damages there must not only be an injury, but the injury must be the result of some wrongful conduct. Where an injury results merely from the lawful and reasonable use of a neighboring estate, no wrong- is done and no remedy exists. By the obstruction of a view, or of light, or of air, or by *362 the erection of an unsightly structure, or the conduct of a lawful business, injury may be inflicted upon an adjoining property; but, as remarked by counsel, ‘in these and like cases there is an implied agreement by every one who is a member of civilized society that he will submit to such consequential injuries without action.’ ”
I am sure it was realized by both court and counsel in the Woodfolk Case that article 1, section 21, of the constitution went no further than to prohibit a taking without just compensation of private property for a public use. Indeed such was the express holding in that case. The court said:
“Here the constitutional provision ends; its inhibition upon the government goes no further.”
And it was then pointed out that:
‘ ‘ The legislature may make any regulations it thinks right and proper for an account or estimate of incidental loss or damages or injuries to the landowner.”
At the time that case was decided the legislature had only made “regulations” to the extent of allowing the landowner to recover for damages incident to the taking, and that-'is as far as that branch of the government has ever gone on that subject. Section 1844, Shan. Code, provides:
“Any person or corporation authorized by law to construct any railroad, turnpike, canal, toll bridge, road, causeway, or other work of internal improvement to which the like privilege is conceded, may take the real estate of individuals, not exceeding the amount *363 prescribed by law or by the charter under which the person or corporation acts, in the manner and upon the terms herein provided. ’ ’
Section 1856 of said Code reads:
“The jury will then proceed to examine the ground, and may hear testimony but no argument of counsel, and set apart, by metes and boiinds, a sufficient quantity of land for the pürposes intended, and assess the damages occasioned to the owner thereby. ’ ’
■In the same Code, section 1857, is:
“In estimating the' damages, the jury shall give the value of the land without deduction, but incidental benefits which may result to the owner by reason of the proposed improvement may be taken into consideration in estimating the incidental damages.”
We see, in section 1844, a purpose to take private property for public use, in section 1856 a purpose to have a jury of view assess damages occasioned to the owner by the taking, and in section 1857 a purpose to allow benefits resulting from the taking to be set off against the damages incident to the taking; but there is conspicuously absent from this legislation any evidence of a purpose to allow the recovery of damages by the owner which are not incidents of the taking, but are merely consequences thereof, and are of a character for which adjacent owners, no part of whose property has been taken, although they may suffer to the same degree, can have no recovery. I repeat, such a purpose is conspicuously absent from this legislation when it is fairly construed. No doubt the absence of a purpose in *364 this legislation to allow a recovery for consequential damages is attributable, in large part, to a recognition by the lawmaking department of the salutary character of those principles so well expressed in the excerpt supra from the opinion by Judge Lurton.
We cannot ascribe to the legislative department of our State, ignorance of the construction which the highest court of the State has given to the existing legislation on this subject; and therefore it is fair to assume that this department of the State still entertains the view that it is not wise to enlarge the rights of the landowner so as to allow him to recover for consequential damages. The majority opinion in this case in effect performs the office of an act of the legislative department of the State, and with all due respect to the majority I maintain this court to be wholly without power so to act. Its legitimate function is the construction of legislative acts, but as there is no legislative act authorizing a landoAvner to recover consequential damages, the court oversteps the legitimate function of construction and passes into the zone of judicial legislation when it declares such right to exist; and, in so doing, as I see it, runs counter to article 2, sections 1, 2, of our constitution, by which the powers of the State government are distributed into three distinct departments, and a person or persons belonging to one of these is forbidden to exercise any of the powers belonging to either of the others except in cases by the constitution directed or permitted. The present is not one of the excepted cases.
*365 A landowner, part of whose land has been taken for a public nse, has enjoyed the full measure of relief afforded to him under our constitution and statutes when he recovers in money, lawful coin of the United States, the fair market value of the land actually taken, and the net amount of damages incident to (but not consequent upon) the taking. This was the measure of his right laid down in the Woodfolk Case, and the doctrine of that case on this point has never been questioned in all the more than sixty years since its announcement.
The landowner cannot enlarge his right. It has never been -enlarged by the constitution. The legislature, in its wisdom, has not seen fit to enlarge it, nor is it enlarged by the common law, for, as said by Judge Lurton in the Bingham Case, supra:
“In these and like cases there is an implied agreement by every one who is a member of civilized society that he will submit to such consequential injuries without action.”
See Railroad v. Bingham, supra; also Harmon v. Railroad, 87 Tenn. (3 Pickle), 614, 11 S. W., 703 ; Chattanooga v. Dowling, 101 Tenn. (17 Pickle), 342, 47 S. W., 700 ; Brumit v. Railroad, 106 Tenn. (22 Pickle), 124, 60 S. W., 505 ; Terminal Co. v. Jacobs, 109 Tenn. (1 Cates), 727, 72 S. W., 954 , 61 L. R. A., 188; Terminal Co. v. Lellyett, 114 Tenn. (6 Cates), 368, 85 S. W., 881 ; Gossett v. Railroad, 115 Tenn. (7 Cates), 376, 89 S. W., 737 , 1 L. R. A. (N. S.), 97, 112 Am. St. Rep., 846 ; Coyne v. Memphis, 118 Tenn. (10 Cates), 651, 102 S. W., 355 .
The damages for which the majority opinion allows recovery are not based on some special injury done to *366 the remaining part of the tract by unskillful or negligent construction, or negligent operation, so as to fall within the exception noted to the general rule by the cases aforesaid; but the majority opinion approves the charge of the trial court which tohhthe jury, among other things:
“But everything necessarily connected with and directly and proximately resulting from the taking of the right of way strip, and the proper and careful construction and operation of this railroad, which has the effect of directly and especially reducing or pecuni-arily damaging the fair cash market value of the remainder of the land taken, are to be considered by you in awarding incidental damages to the remainder of the land not taken, and the mere fact that other pieces of land lying in similar proximity to the railroad, and no part of which is taken, suffers similar damages to that especially resulting, as aforesaid, to the remainder of the tract of land in question constitute no reason or excuse why you must not award such incidental damages. to the remainder of this tract of land not actually taken. ’ ’
In another portion of its charge, the court told the jury :
“Then you must take into consideration the necessary danger and peril from sparks or fire from trains while on said strip, and the necessary noise, smoke, soot, cinders, escaping fumes, and vibrations so resulting.”
*367 This charge promotes consequential damages. It moves them np a step higher than that plane on which they have been supposed to rest during the past sixty years of the judicial history of this State. It places consequential damages upon the same plane as incidental damages, wholly ignoring the manifest distinction between an incident and a consequence of the act of taking, and overlooking a discrimination thus made between the landowner whose land is taken, leaving him the owner of adjacent property, and other adjacent landowners whose property may be equally or more seriously damaged by the taking, but who nevertheless can have no recovery. These distinctions, however, which the charge overlooks have never been overlooked by this court heretofore, and manifestly have never been overlooked by the lawmaking department of the State. It is affirmatively shown by the transcript, as I see it, that the major part of the large verdict in this case was based on consequential damages pure and simple. I find no warrant under the common law, under our statutes, or under our constitution, for affirming a judgment based on such a verdict.
The opinion of the majority cites cases from other jurisdictions, many of which no doubt rest on statutes and constitutions entirely dissimilar to ours. In respect of such authorities, Judge Caruthers said, in the Woodfolk Case:
“Though we entertain very great respect for decisions of other States, we cannot yield to them as au *368 thority any further than they are sustained, in our judgment, by sound reason and settled principles.”
Pie also spoke of the diversity in the views of other courts, which then existed, in respect of the questions he had discussed, in that opinion, as a reason for basing the decision of the court upon our own constitution and legislation rather than having resort to authority from other jurisdictions, resting upon dissimilar constitutions and statutes. In substance, the same observations have been made in other of our cases.
By the opinion of the majority a venerable rule of law in this State is given its quietus. Hail to the new rule! Its virgin fruits are great! Note them: Less than two years before the taking by the condemnors of two and thirty-one one-hundredths acres of land out of a tract of fifty-six acres, the owners of that tract were willing to sell the entire tract at $30,000. Evidently no purchaser was found willing to pay the price, for the then owners still hold fifty-three and sixty-nine one-' hundredths acres of the tract. The jury awarded damages in the circuit court for the two and thirty-one one-hundredths acres actually taken in the sum of $5775, and for incidental damages to the land not taken the verdict of the jury was $32,000. The judgment based on this verdict in favor of the owners was for the sum .of $37,775, together with interest in the sum of $5452.20. When the case was affirmed by the court of civil appeals, the total judgment was for $45,107.57 and costs. Interest has been accumulating since the date of that judgment. The owners were, of course, entitled to the *369 interest if they were to the principal; but were they entitled to so large a principal?
For the owners it is said that between the date when they were willing to sell this property for $30,000, and fonnd no purchaser for it at that price, and the date of the taking, a public park was established adjacent to the tract, and greatly enhanced the value thereof. No doubt the establishment of the park did enhance the value of the tract, but I do not believe its fair market value was so enhanced as to justify the conclusions reached by the jury. The evidence as to the degree of enhancement was greatly in conflict, yet, under the new rule, after the public had enhanced the value of the tract by the establishment of the park, a further burden is imposed upon the ptiblic. Ultimately the burden of the judgment in this case falls upon the public. The public pays the freight and passenger rates of common carriers, and these rates must be so fixed as to care for burdens so imposed; else common carriers must cease to exist. The public merely cajoles itself by specious reasoning when it supposes such burdens to be destined for other shoulders than its own. The public, by the verdict in this case, under the new rule, relieves these landowners of their fair share of a public burden. It allows them a recovery for consequential damages for which other adjacent landowners can have no recovery, though they may suffer loss in the value of their property to the same degree, and even greater degree, than these landowners.
For these reasons I respectfully dissent from the opinion of the majority, I might mention others, but cui hono.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8301360. Public record. Not legal advice.