The opinion
On PetitioN to Rehear.
An exceptionally able petition is presented for a rehearing in this case on three specific grounds: (1) That there had been no approval by the city council of the report of the condemnation commission; (2) that the application to this court was premature; and (3) that the act of 1925 has been misconstrued. We treat these points briefly in inverse order.
3. The construction given the apparently conflicting clauses of the act of 1925 was adopted after full and mature consideration, and, conceding the force and plausibility of the argument now presented, is adhered to, reference being made to the statement of our grounds for so holding contained in the original opinion. However, should the provision in section 1390, to the effect that if the owner ‘ ‘ contests the right or legality of such condemnation then the obligation” shall not obtain until such question shall be finally determined, be construed to give the right to retain possession pending litigation, as well as confer immunity from fine, the term, “right or legality of such condemnation,” must be limited to issues which involve strictly “the right” of condemnation, either (a) a want of lawful power in the condemnor, or (b) a state of immunity from application to condemnation of the specific land.
*204 Under section 1844 of Shannon’s Code will be found notes illustrating both classes of cases. For example, power is lacking in a private manufacturing corporation (see Phosphate Co. v. Phosphate Co., 120 Tenn., 260 , 113 S. W., 410 , 22 L. R. A. [N. S.], 701), and immunity from sncb taking exists where land has previously been devoted to cemetery or railroad uses. See Railroad Co. v. Cemetery Co., 116 Tenn., 400 , 94 S. W., 69 . Of the latter class was the recent case of Chattanooga v. N. C. & St. L. Ry., 284 S. W., — -,- cited by petitioner. If it was being here contended that the purpose was to condemn property for a street already devoted to a public use, it would no doubt be conceded that such right must have been conferred by the legislature, either in express terms or by necessary implication, but how our municipal condemnation statutes are to be construed in this regard is not for decision. We have no such questions before us. Aside from certain incidental questions of regularity in procedure, the real issue is as to the compensation— whether much, less or any at all. Having found that protection is fully provided to the owners in this case against loss of such damages as may be finally awarded, no “right” is involved of that character which, either by the terms of the proviso in question or by law otherwise, -remains undetermined, and the condemnor is entitled to immediate entry, and this court may properly protect this right.
2. In addition to the expression heretofore made of our views as to the right of this court to intervene at this stage of the proceedings, we add that the right of immediate entry on or possession of private property without stay or delay, being fundamental and essential, *205 whenever condemnation has been instituted by a lawfully empowered agency and has so far proceeded that provision has been made — or exists by operation of law, as we hold to he true when a municipality acts — -for payment of damages, then any order of an inferior court which denies this right of immediate possession is so far and in such sense final as to justify the intervention of this court. In Railroad v. Campbell, 109 Tenn., 640 , 75 S. W., 1012 , from which expressions are quoted and relied on by petitioner, the opinion clearly shows that the commissioners had “not filed any report of their action,” and no provision had been made for the payment of damages (page 651 [ 75 S. W., 1012 ]). Nor was it a municipality which was moving, in which class of cases specific provision for compensation is not to the sanie extent constitutionally required. And, as already indicated, in the instant case neither a want of power to exercise the right of eminent domain, nor immunity from appropriation by condemnation of the particular property, is involved. The real issue remaining for determination relates alone to the amount of compensation and the provision for payment thereof, except for a question of irregularity of procedure to be next considered.
1. It is urged that this “court has overlooked the fact that the city council of Nashville has never approved the award.” The amendment of 1925 to Code sections 1388,1389, provides that the legislative “body shall cause said report (of the jury, or commission, of view) to be spread upon its minutes with its action thereon,” and that on payment of the compensation or damages, which have been assessed by the condemnation commission and *206 approved Tby the municipal legislative body, into the office of the recorder or .city clerk,” etc., possession may be taken by the city. While it appears that the report “was received, read and ordered spread upon the minutes,” it is said that the minntes fail to show “its action thereon,” and that this affirmative showing of approval was an essential condition precedent to a lawful taking of possession by the city.
In the first place, we think the records as a whole indicate a substantial compliance with the statutory requirements in this regard. When the city council by formal action appointed the commission, received its report without objection and spread it on its minutes, and thereupon proceeded to act on it through its board of public works and city engineer, it bindingly “approved” the report. It is quite apparent from a reading of the exception and appeal filed by petitioner before the city council (tr. 114) that the proceedings which had been had and were recognized by petitioner at that time as having the effect of adoption or approval of the report. But if this were not technically so, it is clear that the irregularity or omission in formal “action thereon” would be matter of defense only on the part of the city by way of avoidance of any claim or demand based on the report, and it is equally clear that the city would be estopped from making such question by its conduct here-inbefore noted. It results that this alleged defect in the condemnation proceedings lacks substantiality. It may be pertinently added that the exception and application for appeal presented by petitioner to the city council, already mentioned, quite clearly shows that the real con *207 troversy was with respect to the matters of compensation. for the property proposed to he taken by condemnation. This phase of the “dual” litigation may yet be determined pursuant to the remand heretofore ordered. The petition to rehear must be denied.