62 Tenn. 338 | Tenn. | 1874
delivered the opinion of the Court.
This suit was brought by Mrs. Nichol and others, to recover damages to a house and lot, produced by a change of grade of the street on which the same was situated, under the direction of the corporate authorities of the city of Nashville; verdict was for the plaintiff, and an appeal was taken to this Court.
Two questions are presented for reversal. First, it is insisted the Court below erred in his construction of §§1392, 1393 and 1394, of the Code, the last Section being the one under which the suit was probably brought.
The first Section referred to, authorizes any owner of property within the corporate limits, who desires to build on or improve such lot, to apply to the corporate authorities, and requires such authorities to fix and establish the grade of the street or streets, on which the applicant proposes to build, that he may construct his improvements so as to conform to the grade established. The next Section provides, that “ the authorities” shall pay such applicant full damages that he may sustain in consequence of any subsequent change of grade of such street by said authorities.
The last Section is: “ Said corporate authorities shall also pay to any citizen who has made permanent and
There is no little difficulty in construing these provisions. We think, however, it is the duty of the Court to give a liberal construction to Statutes in favor of the right of a citizen to be reimbursed for damages done to his property by city authorities, occasioned by works for the advantage of the general public. The citizen whose property is thus injured, ought not to be required to bear the entire burden, the benefits of which he shares perhaps very slightly, in common with other inhabitants of the city, the improvements frequently being of no personal advantage to him, whatever. The facts of this record, however, present the following case, and we can only construe the provisions of the Code, with reference to such facts.
In 1866, the grade of the street was raised by the corporation about three feet, and Nichol, the husband of plaintiff, raised the floors of the main building, so as to correspond with this new grade, adding, also, an extension to the street. This action of the corporation had fixed the grade in 1866, and though this was not done literally under §1392 of the Code, upon application, it had been acquiesced in and conformed to by the owner, who had constructed his subsequent improvements in conformity with this grade. In 1868, the grade was changed, the street raised about two feet, working
The next question is presented on the action of the Court in permitting the plaintiffs to withdraw certain deeds from the, jury, during the argument of the cause, and also during the delivery of his charge to the jury. Plaintiffs had introduced various deeds constituting their chain of title to the lot. A deed was introduced from F. R. Nichol, (the husband) and his wife, one of the plaintiffs, to Matthew Shie and wife, dated in 1867, and then a deed from said Shie and wife, conveying the property back to E. R. Nichol, the husband, alone. F. R. Nichol having died, Catharine, his widow, would only have been entitled to dower, the lot descending to his heirs. Parol proof had been introduced of assignment of the lot in dower to the widow, but, on objection, the Court, in his charge, proceeded to state