BERT C. Cоx and wife, MARY VIRGINIA Cox, Appellants, v. STATE OF TENNESSEE, DONALD M. MCSWEEN, Commissioner of Commerce and Conservation of Tennessee, et al., Appellees.
Supreme Court of Tennessee
March 4, 1965
Petition for Rehearing Denied April 7, 1965
399 S.W.2d 776
Jackson, April Term, 1964.
GEORGE F. MCCANLESS, Attorney General, Nashville, HEATHCOCK & CLOYS, Union City, for appellees.
This is an appeal by the complainants from a decree of the Chancery Court sustaining a demurrer filed оn behalf of the defendants, State of Tennessee, Tennessee Game and Fish Commission, George F. McCanless, Attorney General of the State of Tennessee, Fred W. Stanberry, Director of the Tennessee Game and Fish Commission, and Dоnald M. McSween, Commissioner of the Tennessee Department of Commerce and Conservation.
The original bill, which was filed December 12, 1963, alleges that the complainants are the owners of certain described lands loсated in Obion County, Tennessee, having acquired title to same by general warranty deed on July 18, 1861. It is alleged that complainants’ grantor acquired title to the lands by decree of the Chancery Court of Obion County, dated October 6, 1958, cоnfirming a tax sale of the property for the sum of $201.58, which decree is duly recorded in the Register‘s Office of Obion County. The bill alleges that all taxes on this property for the years 1956-1963 have been paid by the complainants or their grantor. The bill further alleges that
The bill prays that the complainants be adjudged the owners of the described tract of land, that the deed from Hines and wife and Finch and wife to the State for the use and benefit of the Tennessee Game and Fish Commission be set aside and held for naught and removed as a cloud upon complainants’ title. The bill prays, in the alternative, that complainants recover damages from defendants to the extent of the сonsideration paid by the State to its grantors.
The demurrer of the State and its officials, who are sued in their official capacities, is based upon the sovereign immunity of the State. The demurrer states:
“This suit may not be prosecutеd against the State of Tennessee or any of its officers named as co-defendants because the State has not authorized it to be maintained nor has the Legislature excepted such suit from the application оf either Section 17 of Article I of the Constitution of Tennessee or Section 20-1702 of Tennessee Code Annotated.”
The State Game and Fish Commission, by
By
“Suits may be brought against the State in such manner and such courts as the Legislature may be law direct.”
“No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds, or property, and all such suits shаll be dismissed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state.”
A suit against a state official in his official capacity is a “suit against the state.” Brooksbank v. Leech, 206 Tenn. 176, 332 S.W.2d 210, A. L. Kornman Co. v. Moulton, 210 Tenn. 491, 360 S.W.2d 30.
In Fritts v Leech, 201 Tenn. 18, 296 S.W.2d 834, a bill in chancery was filed alleging that the Department of Highways and Public Works of the State, acting through its representatives, asserted title to certain property belonging to the complainant and took ovеr the property without obtaining any deed and without exercising its right of condemnation. The bill in that case prayed for a decree declaring the complainant to be the owner of the property and prayed for dаmages and for an injunction enjoining defendant from entering upon the land. Later the bill was amended by striking out the prayer for damages and inserting a prayer for writ of mandamus to put complainant in possession of his property or to require defendants to take the property by eminent domain. In affirming the action of the Chancellor in sustaining a demurrer to the bill in Fritts, the Court stated:
“Taking the allegations of the bill as amended as true, as we are required to do, the bill states in so many words, that both parties, complainant and defendants, are asserting title to said piece of land and that the State is in possession thereof. It is evident, therefore, that the suit in this aspect is an ejectment suit. In the other asрect the suit is in the alternative to require the Highway Department to exercise the power of eminent domain.” 201 Tenn. at 21, 296 S.W.2d at 836.
The Court, in Fritts, held that the suit in the aspect of an ejectment suit was one to reach the property of the State in violation of
In Fritts, the Court further pointed out that this Court, in Stubblefield v. Warren County, 170 Tenn. 211, 93 S.W.2d 1269, held that, when the Highway Department took possession of plaintiff‘s land without condemnation
In a number of cases it has been held that the revеrse condemnation statute, now
“The reason for this rule is that the law authorizes such corporations to take proрerty to effectuate public purposes for which they were chartered, and in taking such property such corporations commit no unlawful act, which may be redressed by ordinary remedies.” 160 Tenn. at 492, 26 S.W.2d at 145.
Since, as heretofore pointed out,
In Dickens v. Shelby County, 178 Tenn. 305, 157 S.W.2d 825, the County acquired property for school purposes by deed which purported to convey a fee simple title from
“* * * The bill seeks nothing more than the recovery of the land and mesne profits. No such equitable relief is prayеd as would confer on the chancery court jurisdiction to allow damages for the appropriation of the land, even had such damages been sought.
“As held in the original opinion of the court, the chancery court was without jurisdiction to entertain the suit, and the decree of the chancellor dismissing the same was without error.” 178 Tenn. at 309, 157 S.W.2d at 827.
There has been no legislation enacted which would permit the State to be sued in the action now before the Court. Jurisdiсtion to try condemnation and reverse condemnation suits is conferred upon the circuit courts, and not upon chancery courts. Since complainants are not entitled to any relief within the jurisdiction of a court of еquity, that court cannot retain jurisdiction of an action for unliquidated damages to property. Union Planters’ Bank & Trust Co. v. Hotel Co., 124 Tenn. 649, 667, 139 S.W. 715, 39 L.R.A., N.S., 580; Tucker v. Simmons, 199 Tenn 359, 362, 363, 287 S.W.2d 19.
The Chancellor was correct in sustaining the demurrer of these defendants and dismissing the bill as to them. In view of the conclusions we have rеached, it is not necessary to discuss other questions presented in the briefs of the parties.
The decree of the Chancery Court is affirmed at appellants’ cost.
On Petition to Rehear
The complainants have filed a petition to rehеar, which states:
“Now, the point we are raising is simply this:
“That we are entitled to have Your Honors decide in the case at Bar whether or not the original complainants have a right to have the Chancery Court of Obion County at least determine title to this land, because it is only after the Chancery Court has determined title to it that we would be entitled to sue under the reverse condemnation statute.”
In our original opinion we pointed out that in Fritts v. Leech, 201 Tenn. 18, 296 S.W.2d 834, both the complainant, Fritts, and the defendant, Leech, as Commissioner of Highways and Public Works of the State, were asserting title to a parcel of land that was in the possession of the State. One prayer of the bill in Fritts was for a decree declaring the complainant to be the owner of the property. The Court there held that, by reason of
If, within the time allowed by law, an action is commenced under
In Johnson v. Roane County, 212 Tenn. 433, 370 S.W.2d 496, the opinion shows that in an action instituted under
Also, in Southern Railway Co. v. Griffitts, 42 Tenn. App. 494, 304 S.W.2d 508, in an action brought under
In any action brought under
The appeal before the Court is from the decree of the Chancellor sustаining the demurrer of the State and the State officials sued in their official capacities. Any rights the complainants may have against the defendants, W. H.
The Chancellor properly sustained the demurrer of the State and State officials. The petition to rehear is denied.