The opinion
On PETITION FOR REHEARING.
This cause is before the court upon the complainants’ petition to rehear on two questions, as follows:
(1) That the city should be enjoined from closing the east end of McGhee street by the construction of the Broadway viaduct until an ordinance is passed abolishing that end of said street.
*582 (2) That under sections 1981 and 1982 of Shannon’s Annotated Code it is necessary for complainants’ rights to be first condemned, and the damages to which complainants will he entitled must he paid into the office of the city recorder before the east end of McGhee street can be closed.
The first contention above stated was not discussed in the opinion rendered and filed in this cause at a former day of the term for reasons hereinafter to be stated.
The second contention was not stressed in complainants’ assignment of error and brief filed.
Now, as to the first contention made in the petition to rehear, the record discloses that in the contract entered into between representatives of the city and the Southern Railway Company, and confirmed by the city council, the city obligated itself as follows:
“To pass all proper and necessary ordinances for closing Broadway (or Broad street, as shown on the blueprint) as a street at grade from approximately the north line of Jackson avenue northwardly to approximately the south line of Depot street, and for the construction by the railway company, as agent for the city in so doing, of a viaduct along Broadway from, to-wit, the north line of Jackson avenue, to-wit, the south line of Depot street, together with the necessary track changes, and generally in accord with the general plan hereto attached and made a part hereof, the work on the viaduct to begin within sixty (60) days from the date of the final passage and approval of the necessary ordinances . . .
“To pass all necessary ordinances to close and forever abandon McGhee street, from that point on the west *583 where McGhee street enters the property of the railway company; thence eastwardly across the tracks of the railway company to the west line of Broadway.”
By section 5 of the Charter of the city of Knoxville (chapter 412, Private Acts of 1923), it is provided:
“ That the city as incorporated under this act shall have power by ordinance,” among other things, “to make all necessary appropriations therefor and to open, alter, abolish, widen, extend, establish, grade, pave or otherwise improve, clean and keep in repair streets, alleys and sidewalks; or to have the same done, and to regulate, establish and keep in repair bridges, culverts, sewers and gutters; to regulate the use of all sewers and sewer connections, and fix service charges therefor; and to make provisions and contracts for lighting the streets, and for erection of all buildings necessary for the use of the city.”
The power just above quoted is contained in subsection 10 of section 5 of said charter. So it will be seen that the city has not only contracted to close the east end of McGhee street by ordinance, but that the city’s charter expressly provides that it must be so done, and there is no proof in the record tending to show that the city does not intend to close the east end of McGhee street in the manner prescribed by its charter. It was for this reason that this question was not discussed in the opinion. There is no warrant for complainants’ assumption that the provisions of the . charter will not be complied with. Certainly this court cannot presume, in the absence of proof to the contrary, that the city will not pass the necessary ordinance closing the east end of McGhee street.
*584 Now, coming to the second contention of complainants, which is whether or not it is necessary for complainants’ easement in McGhee street to be first condemned under sections 1981 and 1982 of Shannon’s Annotated Code, and the damages to which complainants will be entitled he paid into the office of the city recorder before that portion of the street can be closed, we are of the opinion that this contention is not well grounded.
Section 1981 provides: “When the owner of the land through which any street or alley or common is to be extended, requires damages' for the same, the mayor and aldermen shall appoint freeholders, not exceeding seven in number, who, after first being sworn, shall examine the premises and assess the damages, and report the same to the mayor and aldermen, who shall cause the said report to be spread upon their minutes by the recorder. ’ ’
Section 1982 provides: “On payment of said damages into the office of the recorder, for the benefit of the owner of the land, the mayor and aldermen, first allowing said owner a reasonable time therefor, may order the street, alley, or common to be opened. ’ ’
We are of the opinion that these sections have no application to the facts of the present cause. They apply to cases where the owner’s land is taken for the extension of a street. The incorporeal and incidental rights which complainants have in McGhee street are not “land through which any street or alley or common is to be extended.” No part of complainants’ premises is to be appropriated by the city. Whatever damage complainants may sustain is purely incidental, and results from an impairment or destruction of their easement in the street *585 to be closed, and no part of the land owned by them will be invaded or taken.
Complainants rely on Woolard v. Nashville, 108 Tenn., 353 , 67 S. W., 801 , to support their contention that their easement in McGhee street must first be condemned under the sections of Shannon’s Annotated Code above quoted, and the damages paid into the office of the city recorder, before said street can be closed.
We do not think this case is controlling. That was an action brought to recover damages for the appropriation of a part of plaintiffs’ lot for the construction of a viaduct built along and over a portion of Church street in the city of Nashville, which ran in front of their lot. The lot which belonged to the plaintiffs expended to the middle of the line of the street, and therefore, in constructing the viaduct, a portion of plaintiffs’ property was actually appropriated by the city; while in the instant cause no part of the lots or premises of complainants will be appropriated. Any damages which they may sustain by reason of the impairment or destruction of their easement in the portion of McGhee street to be closed are purely incidental, to recover which they will have a plain and adequate remedy at law, as heretofore expressly held in the opinion of this court rendered and filed in said cause.
The petition to rehear is therefore denied, with costs.