39 Tenn. 9 | Tenn. | 1858
delivered the opinion of the Court.
This is a contested road case. The plaintiffs are petitioners for a county road, to pass over the lands of the defendant, in Robertson’s Bend, on Cumberland river, about six miles from Nashville. The petitioners live in White’s Bend, on the opposite side of the river from Robertson’s Bend, and propose to establish a ferry, by which to pass over to the bank of defendant, and then over his land in the direction of Nashville, about the distance of -.
The defendant has the whole bend enclosed and arranged for stock-raising at considerable expense, and resists the application to run a public road through it, because it would inflict irreparable injury upon him, without any corresponding advantage to the public. Much proof was introduced to support the positions assumed on both sides — the public demand for the road on the one part, and the private injury on the other.
The County Court decided in favor of the petitioners, and ordered the laying out and establishment of the road; but upon an appeal to the Circuit Court. that judgment.was reversed and the petition dismissed, and an appeal to this Court. It is now for us to decide upon the evidence presented in the bill of exceptions, which tribunal gave the proper judgment.
It is assigned for error here, first, that the Circuit Judge refused to refer the question to a jury, instead of passing upon the evidence himself. We think he did not err in this. Such a practice has never been adopted, and it is not contemplated by any act of Assembly on the subject of roads. It is not a proper
The public is entitled to all necessary roads and thoroughfares, and it is the duty of the Courts to grant them, wherever they are needed, although they may he injurious to individuals, upon making compensation for the injury, as provided by law. This is to be done, however, with as little injury to private property as practicable. It does not follow that a road is to be granted because a portion of the people may desire it; not even in every case where it is manifest that it would be of some convenience or advantage to them. The advantage to the public must be sufficiently great to overbalance the private injury. That is, in a case where the necessity is not imperative, very serious harm will not be done to individuals by the establishment of a public road. In the exercise of this very delicate and important jurisdiction, by which private property is taken lor public use, the Courts should look, carefully, to the
Both parties have used every exertion to present all the facts in this case calculated to assist the Courts in arriving at a correct conclusion. We have a map of the two bends, the river, adjacent turnpikes, and other public roads and ferries. The situation of all the families in “White’s Bend,” together with the opinions of men as to the necessity of the proposed road for each inhabitant. From all which it appears that a few of the families would be benefitted by shortening the distance to Nashville, provided they succeeded in getting a good ferry kept up. But taking all the circumstances into view, as they are presented in the proof, we are
Some of the witnesses are of opinion that the road would be of vital importance to the families in White’s Bend ” — at least tor some of them — and others think it would be of very little or no benefit to them. Some say that the ferry to be established upon the new road, at the head of Robertson’s Island, would be safe and convenient, and others, that it would be exceedingly dangerous, and, in high water, almost impassable. So we are left, as in most cases of this kind, to judge between them upon the reasons they assign and the facts they state. The proof shows that there are from twenty to forty families in the bend — some of them renters; that most of them, by proper roads leading to the turnpikes on either side, could reach Nashville more easily and safely than by the proposed road, though the distance might be somewhat greater to a majority of them. ■ It is clear that the general public have no
We concur with the Circuit Judge in his conclusion upon the facts, and affirm his judgment disallowing the petition.