130 Tenn. 270 | Tenn. | 1914
delivered the opinion of the Court.
It is true that, where a public service corporation takes land under condemnation proceedings, it is not a trespasser, and cannot he sued as such, but the remedy of the landowner is that only which is prescribed by the charter. Mitchell v. Turnpike Co., 22 Tenn. (3 Humph), 456; Tennessee & Alabama R. R. Co. v. Adams, 40 Tenn. (3 Head), 596; Colcough v. Nashville & N. W. R. Co., 39 Tenn. (2 Head), 171; Simms v. Memphis, Clarksville & Louisville R. Co., 59 Tenn. (12 Heisk.), 621. The same result would necessarily follow where condemnation proceedings were instituted under the general statutes regulating the exercise of the right of eminent domain, although there might be no provision in the charter on the subject. Shannon’s Code, sec. 1844 et seq., Therefore ejectment would not lie. Saunders v. Railroad, 101 Tenn. (17 Pick.), 206, 47 S. W., 155; Doty v. Telephone & Telegraph Co., 123 Tenn. (15 Cates), 329, 130 S. W., 1053, Ann. Cas., 1912C, 167. But such a corporation about to enter upon land to appropriate it without the institution of condemnation proceedings, or not in pursuance of any.
“If, however, such person or company has actually taken possession of such land, occupying it for the purposes of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as-hereinbefore provided; or he may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest.”
The plaintiff in error entered upon the land in controversy without any condemnation proceedings and without any special provision in its charter on the subject. The defendants in error, under authority of the-section quoted, sued for damages. The plaintiff in. error denied defendants in error’s ownership of the property. The latter proved a deed executed by one I. T. Foster and wife, but did not deraign title back to and from the State, or provide any basis for the curative presumption that takes the place of proof of title, nor even show they were ever in the actual possession of the land. Plaintiff in error insists that ac
The result is the judgment of the court of civil appeals must be reversed, and the suit dismissed, with costs.