Barron v. City of Memphis
113 Tenn. 89
Tenn.
1904
Check Treatment
Mr. Chief Justice Beard

delivered the opinion of the Court.

■ This is an action in the nature of trespass on, the case to recover damages for injuries alleged to have been inflicted by the city of Memphis on the property of Mrs. Venorah Barron.' The suit was brought by her and her husband. Upon the trial a demurrer interposed by the defendant below to the evidence of plaintiffs was sustained. To this action of the court plaintiffs assign error.

The testimony discloses that Mrs. Barron is the owner of a lot in the city of Memphis, the rear of which extends to and is bounded by Bayou Gayoso, a stream which passes through the city and discharges into the Mississippi river. Over this stream, and near the property of Mrs. Barron, a bridge has been standing for many years. The center of this bridge was supported by a stone pier. *91Some time before tbe institution оf tbis suit, under tbe direction of tbe municipal authorities, tbis central pier was extended or enlarged in order that it might bear tbe additional weight of one of tbe city’s sewers. In making tbis extension tbe pier was so constructed that it stood, when completed, at a small angle across tbe channel of tbe streаm. Tbe result was to divert tbe current of tbe bayou and throw it across tbe lot of Mrs. Barron, so that by a process of erosion a large part of it has been destroyed. To such extent did tbis injury go that tbe pillars of a bouse standing on tbe lot were undermined and to relieve it from threatened destruction tbe bousе was moved by plaintiffs in error.

Upon these facts it is maintained by tbe owners that there was a taking of Mrs. Barron’s property within section 21 of article 1 of tbe constitution ‍​​​​​‌​‌​‌​‌​‌‌​‌​​​‌‌‌‌‌​​​​‌​‌​​‌‌​​‌​‌​‌​​‌​‌‍of Tennessee, which is in these words: “No man’s property shall be taken or applied to public use . . . without just compensation.”,

To put tbis рrovision in operation, it is not essential that there should be an actual appropriation of tbe property taken to tbe public use. “It is enough if any right of tbe owner respecting tbe thing owned be impaired so that be cannot apply tbe thing to all tbe uses of which it was formerly capablе.” Taylor on Corporations, section 173.

Mr. Woods is in accord with tbis statement of tbe rule. In bis work on Nuisances (section 762) be says: “Whenever tbe exercisе of right (asserted) operates to *92destroy an easement incident to real property, or amounts to an actual physical invasion of property by Some agency that produces injury thereto or imposes a burden thereon, this is a taking of property.”

The texts of these authors arе supported by a citation of many cases, and we think it may be safely stated that, even in the absence of the appropriation by the government, or one of its agencies, to a public use, yet if, in carrying on its work, it seriously interrupts the ‍​​​​​‌​‌​‌​‌​‌‌​‌​​​‌‌‌‌‌​​​​‌​‌​​‌‌​​‌​‌​‌​​‌​‌‍common and necessary use of the property by its owner, this is a talcing within the meaning of the constitutional provision. Much more so must it be when by the act of the government the invasion amounts to a practical destruction of a part of the whole of the property.

As was said by the supreme court of the United States in Pumpelly v. Canal Co., 13 Wall., 166, 20 L. Ed., 557: “It would be a very curious and unsatisfactory result if, in construing a provision of constitutional lаw, . . . it shall be held that, if the government refrains from the absolute conversion of real property to the‘uses of the public it. can destroy its value entirеly; can inflict irreparable and permanent injury to any extent; can, in effect, subject it to total destruction — without making any compensation, beсause in the narrowest sense of that word it is not taken for public use. Such a construction would pervert the constitutional provision into a restrictiоn upon the rights of the citizen, as these stood at common law, instead of the government, and making it an authority for invasion of private right under the *93pretеxt of the public good.” So in that case it was held where persons, authorized by an act of the legislature of Wisconsin to' construct a dam across an outlet of Lake Winnebago, in doing this work threw the waters of the lake so as to render of little value the land of an adjoining proprietor, that this was a taking within the constitutional provision of that State. The same rule was announced with regard to facts similar in Conniff v. San Francisco, 67 Cal., 45, 7 Pac., 41; Eaton v. Boston, etc., R. R. Co., 51 N. H., 504, 12 Am. Rep., 147, and. in Baltimore, etc., R. R. Co. v. Reaney, 42 Md., 117.

But'it is unnecessary to resort to cases’determined by other courts for the purpose of finding illustrations of the application of this rule, as our own reports furnish authority for the contention of plaintiffs in error; cases in which this court has given an interpretation of this provision sufficiently liberal to protect owners from any direct or indirect invasiоn of their property rights.

In Telegraph Company v. Electric, etc., Co., 93 Tenn., 492, 29 S. W., 104, a telephone company sought to recover from a street railway corporation compensation for injuries received from an overflow of electricity from the latter’s works to the practical destruction ‍​​​​​‌​‌​‌​‌​‌‌​‌​​​‌‌‌‌‌​​​​‌​‌​​‌‌​​‌​‌​‌​​‌​‌‍of the works of the former, and it was ruled thаt this was a taking for which the telephone company was entitled to compensation. In dealing with this phase of the case the court said:

“The injury by ‘conduction’ is a taking of the property of the telephone company by the street railway *94company within the constitutional provision requiring compensation to be made for private property taken for public use. It imposes a burden upon, /the telephone company’s рroperty that impairs its use a/nd value. The loss is fixed and definite in amount. It makes no difference that no material thing was taken, or that the loss resulted, not frоm contact of material things, but. through the agency of the subtle and impalpable electric fluid. The important consideration is that a thing of value has been taken■ from the telephone company for the benefit of the street railway-company, as the representative of the public, and for that thing compensation must be made.”

In Hamilton County v. Rape, 101 Tenn., 222, 47 S. W., 416, it was held the impairment or destruction of the right of ingress or egress of adjoining property by a change оf grade in a public highway, under the authority of the county, was a taking of property for which its owner was entitled to compensation.

Other cases in our State might be referred to-, but these are sufficient to the present purpose. We think, if the serious interference with the telephone service аs the consequential ‍​​​​​‌​‌​‌​‌​‌‌​‌​​​‌‌‌‌‌​​​​‌​‌​​‌‌​​‌​‌​‌​​‌​‌‍result of electricity in the first, and the impairment of the right of ingress and egress in the last of these cases entitled the property /owner so injured to compensation, a fortiori it would follow that, where property is invaded, and to a great extent destroyed, by a government agency, as in thе present case,*95its owner can invoke the protection of the provision of the constitution in question.

But it is insisted that the city of Memphis is protected by reason of an act of the legislature (chapter 96, p. 111, Sess. Laws 1881) exempting taxing districts, of which the city of Memphis was one, from liability in certain cases, and the case of Williams v. Taxing District, 16 Lea, 531, is relied on for this contention. To this it is sufficient to say, if it be conceded that this act is still operative for the proteсtion of the city of Memphis, and if it was necessary to hold that such an action as is complained of in this case ‍​​​​​‌​‌​‌​‌​‌‌​‌​​​‌‌‌‌‌​​​​‌​‌​​‌‌​​‌​‌​‌​​‌​‌‍falls within its terms, it then would be equally necessary for this court to hold it to that extent unconstitutional; for “the legislature has not the power ... to authorize the taking of private property for а public use without compensation.” Telegraph, etc., Co. v. Electric, etc., Co., supra; Taylor on Corporations, section 173.

So it follows that Williams v. Taxing District, supra, gives no color to the insistence of the defendant in error in the present case.

The judgment of the court below is reversed, and the case is remanded for the ascertainment of damages.