| Tenn. | Dec 15, 1872
delivered tbe opinion of the Court.
Article 10, § 4, of the Constitution of the State ordains :
“ New counties may be established by the Legislature,” etc. After a general proviso there is, among exceptions, the following: “ New counties may be established by the present or any succeeding Legislature, out of the following territory.” . . . “ Out of fractions of Sumner, Macon and Smith. Counties, but no new line of such new county shall approach the Courthouse of Sumner or Smith Counties nearer than ten miles, nor include any part of Macon County lying within nine and a half miles of the Court-house of said county, nor shall more than twenty square miles of Macon County, nor any part of Sumner County lying due west of the western boundary of Macon County be taken in the formation of said new county.”
On June 21, 1870, the Legislature passed an Act establishing the county of Trousdale out of fractions of the counties of Sumner, Macon, Smith and "Wilson, around the town of Hartsville, defining the boundaries. Ch. 27, Acts of' Second Session 1869-70.
It is insisted this creating statute violates the clause of the Constitution already quoted, in' taking more of the territory of Smith and Macon Counties than is granted.
In discussing and determining the question we are
“The question in this case is, in its terms, very simple. - The plaintiff had bought from the defendant a public house called “ The Lord Holland,” and the defendant covenanted that he would not carry on the business of a publican within the distance of one half-mile of the premises called “The Lord Holland,” and the question is, how the distance of half a mile is to be measured. The plaintiff contends that the true mode of measurement, that is, the true construction of the language used, is that a circle of half a mile radius is to be drawn round The Lord Holland, and that if the defendant carries on the business of a ■publican within this space, then he has broken the covenant. The defendant, on the other hand, contends that the true construction of the covenant is, that if there be a half mile between The Lord Holland and the house where the defendant carries on business, • measured by the nearest way of access, there is no breach of the covenant.
Now if the question were new and had never before arisen, I think the plaintiff’s contention is right.
Again, supposing that by the existing mode of access the distance was upwards of half a mile, but by a new road the distance was reduced to less than a half mile, there would be no breach of the covenant until the new road was made, but there would be afterwards. I can not but think such a construction of the covenant would be unreasonable, giving it one operation in one state of things, and another in another; and if I had to decide the question independently of all authority, I would be of opinion
But in my judgment the authorities are conclusive. • Passing over for the present the case of Wing v. Earl, the first case in order of time is Wood v. Dennett, and there Lord Ellenborough expressed his opinion at Nisi Prius that the nearest way of access was the proper mode of measurement. The next case was Leigh v. Hind. The covenant there was, that the defendant would not carry on the business of a victu-aller within the distance of half a mile of the premises assigned, a public house in Bishopgate street, in London. It was found by an arbitrator that the defendant carried on the business of victualler within half a mile by the nearest way of access, and of necessity Avithin the radius of a half mile, and the unanimous judgment of the Court was that the covenant was broken, but Lord Tenterdon and Mr. Justice Littledale stated their opinion to be that the distance was to be measured by the nearest way of access, and Mr. Justice Littledale stated that if this coven-antor took a public house, the distance of which by the then shortest way of access,'was greater than the half mile, there would be no breach of covenant, but if a new street were opened, whereby the distance became less than a half mile, there would be a breach. On the other hand, Mr. Justice James Parke declares his dissent from this construction, and said he was of opinion that the proper mode of measuring the dis
The next case is Lake v. Butler. The question was
There was another casé cited, Wing v. Earl. The defendant had sold the plaintiff wood, which was to be gotten four miles from Bye, in Sussex. The defendant pleaded that the wood, by the nearest and
It was said that one construction was to be given to these words in an act of parliament, and another in a deed or contract'. I should be very loth to do so. It may be that circumstances may exist in a peculiar case to justify such construction, but in my opinion there is nothing in this calling for it.
It Ayas also stated that the measurement of straight line, as stated in some of the judgments, is not practicable.
“1 have inquired as to this from one of the most competent persons in this kingdom, and have been informed that it may be easily measured with sufficient correctness for all practical purposes, by means of the Ordinance map.”
We have cited, almost entire, the opinion of the Court in the case quoted, in order to give to the
The question is a new one in this country, made perhaps for the first time in this case.
From the opinion quoted Cleasby, B., dissented. Taking the opinion of the Court and tempering it with the dissenting opinion, we think it peculiarly applicable to the case at bar.
The dissenting opinion takes a distinction, (for which many good reasons may be given,) between an act of parliament and an agreement between private parties. In criticising the cases cited, Cleasby, B., says: “ In Stokes v. Grissell which was pressed on behalf of defendant, the question was, how the distance of twenty miles, mentioned in an act of parliament, was to be measured, and the cáse has no bearing upon the construction of an agreement like the present, when the subject-matter and intention of the parties must be considered.”
In commenting on Lake v. Butler, he says: “ The question was the same as in Stokes v. Grissell, viz., the measurement of twenty miles mentioned in 9 and 10 Vic. c. 95, and the Court adopted the view expressed in the former case; but there is nothing in the judgment indicating an opinion in favor of the straight line rule, in such a case as the present.”
In noticing Jewel v. Stead, he says: “ The question arose upon a turnpike act, which provided that no toll-gate should be erected within three miles of
From these extracts we see there was no difference in opinion in the application of the straight line rule in the construction of acts of parliament, and that the whole difference is in applying it to contracts between individuals.
We are called upon to construe a provision of the Constitution, and to that we distinctly confine ourselves, adopting the straight line rule, intimating no opinion' as to what should be the rule in contracts or agreements between persons.
We may add to the reasons contained in the authorities that the term “miles” used in the Constitution, derives some aid in the interpretation we have given from the term “ square miles ” used in the same instrument, the latter meaning an area which can
Our conclusion is tbe more satisfactory in tbe fact of tbe spirit of improvement Avhicb prevails, developing each day turnpikes and railroads by which mountains are tunneled, bills leveled and low places raised, thereby shortening distances in every 'quarter with constantly increasing improvements in that direction, making tbe only safe and always certain and unchanging rule of measurement, tbe air line.
Tbe act of the Legislature, so far as it merely established tbe county of Trousdale, is valid, but so far as by tbe boundaries prescribed it has entrenched upon tbe counties of Macon and Smith, lessening their constitutional area, it is void.
Tbe causes will be remanded to their respective Chancery Courts, whence they come, that surveys may be made in accordance with the rule laid down in this opinion.