117 Tenn. 500 | Tenn. | 1906
delivered the opinion of the Court.
This was a proceeding begun by a petition of the citizens of Morgan county, filed before the.defendant in er
The leading question made in the assignments of error is that the road commissioner had no> authority to lay off the road involved, or to assess damages. The controversy really turns upon the question whether the road law, chapter 136, p. 287, of the Acts of 1901, is constitutional. The proceedings in the present case were conducted under that act as amended by chapter 533, p. 1415, of the Acts of 1903. Section 7 of that act, as amended by the act of 1903, reads as follows:
*503 ‘‘Sec. 7. Be it further enacted, that all applications to open, change, close or restore to the public use any and all public roads in this State shall be made by written petition to the road commissioner of the district in which the road is located, and if said road is intended to be located in more than one district, then the petition shall be made to the commissioners of all districts interested, and they shall act jointly. The road commissioner, within ten days after the application has been filed with him, shall notify the person first named on the petition of the date at which he will be present at the beginning point mentioned in the petition to act on the application. Five days’ written notice of the date and beginning point shall be given by the petitioners to all persons controlling land to be affected by the proposed change; the road commissioner shall attend at the appointed time and place, and, if the proper notice to interested parties has been given, shall act upon the application, assess damages, if in his judgment there should be any, and report his action to- the chairman or judge of the county court. With his report he shall file the original petition, the notice to landowners, and the names of material witnesses. The chairman or judge of the county court shall consider the whole matter and make such orders as to opening, changing, closing, or restoring to the public the proposed road, as the court may deem proper; any interested party may appeal as heretofore, provided such appeal be perfected before the clerk of the county court within ten days.” - *
In this view of the matter, it appears that the objection taken to the constitutionality of the act is not well founded.
When the present case was tried before the chairman of the county court, after establishing the road, he divested title out of the plaintiff in error and vested it in the public, and this was affirmed by the circuit judge. This matter is complained of here. We are of opinion that the order of the county court, and also the judgment of the circuit court, was in that respect erroneous. The public obtains no title to the road, but only an easement, or right of way, so far as the same may be necessary to render effective and operative in the public the right to occupy and use as a public road the land laid off as such.
The chairman of the county court also directed that the damages should be paid out of the road funds of the ninth district of Morgan county. This was erroneous. The order should have directed payment out of the general fund of the county. The circuit judge, in affirming
It is insisted by the plaintiff in error that the circuit judge committed error in refusing to allow the plaintiff in error to introduce proof upon the subject of damages. There is a general statement of that kind in the bill of exceptions, but it appears that the circuit judge subsequently did allow proof on this subject. Mr. Carroll himself gave testimony on this head. This assignment must therefore be overruled.
The result is that the judgment of the circuit court will be affirmed, except in the two particulars above mentioned, and in respect to these matters it will be modified, and the cause will be remanded to the circuit court of Morgan county, with directions to remand it to the county court of the county, to the end that a warrant may be issued for the damages assessed, in accordance with the directions contained in this opinion.
The costs of this court will be paid by the county of Morgan. The costs of the court below will be paid as directed by the circuit judge.