150 Tenn. 682 | Tenn. | 1924
delivered the opinioji of tiie Court.
According to the provisions of section 8, chapter 149, of the Acts of 1919, the highway commissioners of Coffee county, by approval of the county court, entered into an arrangement with the State department of highways and public works for the construction of the Dixie Highway across Coffee county.
The department of highways and public works exercising powers conferred by sections 7 and 9 of chapter 149 of the Acts of 1919, relocated some portion of the route previously selected by the county, and as relocated the survey covers 1.58 acres across the land of W. 0. Stepp. To appropriate this’ strip of land for the highway, the State highway department, joined by Coffee county, agreeable to section 9 of chapter 149 of the Acts • of 1919, and section 5 of chapter 74 of the Acts of 1917, commenced this proceeding in conformity with the provisions of section 1844 et seq. of Shannon’s Code.
Defendant, Stepp, contests the right of the State highway department and Coffee county to condemn the land for use of the road. He challenges the jurisdiction of the circuit court upon the ground that chapter 154, Private Acts of 1923, denuded the circuit court of jurisdiction and conferred exclusive jurisdiction upon the county court in all matters pertaining to the condemnation of land for public roads. This Private Act of 1923, relied upon to denude the circuit court of jurisdiction, is limited in its application to Coffee county. The act prescribes procedure that may be adopted by the county
The State highway department by authority of the acts of 1917 and 1919, instituted this proceeding. These acts do not prescribe the mode of procedure and must be considered as having been passed with reference to the established mode of procedure under section 1844 et seq., of Shannon’s Code. State Highway Department v. Mitchell’s Heirs, 142 Tenn., 64, 216 S. W., 336; William
The assignments of error which relate to the action of the trial judge overruling the defendant’s plea to the jurisdiction of the circuit court cannot he sustained. The State was proceeding in the manner prescribed bylaw. After dismissal of the plea and demurrer to the jurisdiction in their proper sequence, the defendant filed an answer, in which he denied the right of the petitioners to condemn the land for road purposes. The answer averred that the road as located ran through a field in the rear of his residence and store on a route other than that formerly chosen by the county before the contract with the State highway department, and that this change was not made for the public welfare,'but conceived in prejudice, caprice, and malice, and will work irreparable injury to the defendant; and that the attempt to take his land for this new location of the route is “a palpable abuse of power.”
A jury was demanded to try the issue presented by the answer. Following the answer, a jury of view was appointed, who went upon the land and assessed the value of the one and fifty-eight hundredths acres at $350, and the incidental damages at $250. The defendant. excepted to the report, because (1) the court was acting without jurisdiction; (2) for inadequacy of the damages; (3) because there was no public necessity for taking the land. At this point of the proceeding the petitioners joined with the defendant in a motion to set aside the report of the jury of view, and have a jury determine the issue tendered by the answer as to the right of petitioners to condemn. Evidence was submitted upon this
The trial judge correctly held that this was not a question for submission to a jury. The State was exercising the power of eminent domain through the department of highways and public works and Coffee county, agencies designated by the legislature to select and appropriate land for the public highway. When the power was delegated to these agents, and they exercised it in the manner prescribed by law, for the purpose of acquiring the right of way for the public road, the landowner could not challenge the power to take for public use, nor contest such questions as the utility of the improvement, the choice of the route, and the necessity for taking, because these are legislative questions which the courts cannot review. Anderson v. Tuberville, 6 Cold., 151; McWhirter v. Cockr ll, 2 Head, 110. While the courts could not review the legislative discretion which inheres in those agencies clothed with authority ,to exercise the power of eminent domain, questions arise in condemnation cases which invite judicial inquiry, but afford no issue of fact for a jury. When the preliminary question, involving the power to condemn, is presented to the court, while it cannot supervise the selection of the location nor deny the appropriation if legally applied for, it may pass upon the legality of the demand and prevent an unlawful taking.
The term “palpable abuse of power” is said to be an abuse of the discretion, delegated by the legislature, by an attempted appropriation in utter disregard of the possible necessity for its use, or a use of the power as the cloak of some sinister private scheme. The charge that the act of taking, on the part of the county, constitutes a palpable abuse of power, is a matter for the determination of the court and involves the preliminary question of the right to take. 10 R. C. L., section 159, p. 184. - '
A review of the evidence does not sustain the charge that the location was prompted by prejudice, malice, or caprice; nor does it show palpable abuse of power. The defendant offered evidence to the effect that the route, through his premises, which he offered to give, was more suitable than that adopted by the highway department,
Such a controversy between the landowner and the agency of the State seeking to take land for public use cannot be treated as a litigious issue of fact, otherwise every condemnation proceeding would involve a long sharp controversy between the landowner and the State, not only as to whether the taking was for the public good, but as to the choice of a location with the ultimate choice lodged in a jury.
After disposing of this question adversely to the defendant’s contention, the trial judge again appointed a jury of view, who went upon the premises and assessed the value of the land at $350 and the incidental damages at $250. Exceptions were filed to the report of the jury: (1) Because the compensation was inadequate; (2) because the court had no jurisdiction to try the cause. But the defendant did not appeal from the finding of the jury, and no steps were taken to have a trial anew under the provisions of 1861 of Shannon’s Code.
There is no assignment of error to the action of the court in'adopting thg value fixed by the jury as compensation for the land, and incidental damages. The only questions presented on appeal are those challenging the ■ jurisdiction of the circuit court to condemn, at the instance of the petitioners, the constitutionality of the acts of 1917 and 1919, and the refusal of the court to submit to the jury the question of palpable abuse of power in the effort to take, and because of the erroneous taxation of costs against defendant.
We find no error in the action of the trial court.
Affirmed.