141 Tenn. 197 | Tenn. | 1918
delivered the opinion of the Court.
This proceeding was instituted by the Southern Railway Company to condemn a lot in Johnson City for depot purposes. Both sides were dissatisfied with the result in the circuit court and appealed in error to the court of civil appeals. The judgment of the lower court was there affirmed, and the case has been brought here.
The suit was instituted December 26, 1916, and the property sought to be condemned had already been taken and was covered by the freight depot of the railway company.
Prior to the erection of the depot, the lot was a strip of land about thirty feet wide, was vacant, and had been used as an alleyway. The railway company, assuming that there had been a dedication, procured from the city an ordinance closing this alley, and, further
It developed that the defendants herein also claimed title to this lot, and in litigation, formerly reaching this court, were given a decree for the land.
In the former suit, the railway company did not assert its right to hold the land as a condemnor, hut resisted on the strength of its title merely as a defendant in ejectment.
Some other proceedings were had below áfter the other suit was decided in this court against the railway company, and it resulted that the railway company filed the petition herein to condemn. As stated above, the company had erected a large structure, used as a freight depot, covering this lot, several years ago, on the assumption that it was entitled to possession thereof.
The controversy is whether the railway company shall pay the value of the lot as it was when the company entered, or whether, it shall be required to pay for the lot as it now is, with the improvements thereon. The trial judge held that defendants were only entitled to damages equivalent to the value of the lot as it was when the railway company entered.
Defendants assign this action of the trial judge as error and insist that they are entitled to recover the value of the lot as it now lies. They rely on Southern Railway Co. v. Jennings, 130 Tenn., 450, 171 S. W., 82. That was a case in which the railway company took a conveyance of land from the life tenant, ignoring the rights of the remainderman. When the life estate fell in
The efforts of defendants in this suit is to recover the value of the improvements placed on the land by the railway company, upon the theory that the latter was a trespasser.
There is some authority for the defendant’s position, notably, St. Johnsville v. Smith, 184 N. Y., 341, 77 N. E., 617, 5 L. R. A. (N. S.), 922, 6 Ann. Cas., 379, and United States v. A Certain Tract of Land, 47 Cal., 515. When these cases are analyzed, however, it is doubtful if the harsh rule applicable to a trespasser would be applied to a public service corporation endowed with the right of eminent domain which enters under a color of title, even in these jurisdictions.
The great weight of authority both in England, and America is to the contrary, and it is generally held that the measure of damages to which the owner of land is entitled under such circumstances is the value thereof without the improvements. It is usually so ruled, although the condemnor enters without color of right.
It is said that the compensation to which the owner is entitled as against an enterer possessed of the forum of eminent domain is merely just compensation for the loss and injury he has sustained; that the improvements placed upon the land are dedicated to public
Very elaborate discussions of this question are to be found in St. L., etc., R. Co., v. Nyce, 61 Kan., 394, 59 Pac., 1040, 48 L. R. A., 241, and Jacksonville, etc., R. Co. v. Adams, 28 Fla., 631, 10 South., 465, 14 L. R. A., 533; these cases being in harmony with the majority rule just announced.
So we are of opinion that defendants are not entitled to recover for the value of this property with the improvements thereon, and this was their sole contention below.
The trial judge limited damages to the value of the lots at the time of the entry by the railway company. No distinction was taken by defendants between the present value of the lot without the improvements, and the present value of the lot with the improvements. It
It results that defendants’ assignments of error are overruled.
The railway company assigns for error that the amount allowed as damages in the lower courts is- excessive. This assignment must likewise he overruled. When there is a concurrence in the two lower courts on the amount of damages, this court will not interfere except under very unusual circumstances: Grant v. Railroad, 129 Tenn., 398, 165 S. W., 963; Carolina, etc., R. Co. v. Shewalter, 128 Tenn., 363, 161 S. W., 1136, L. R. A., 1916C, 964, Ann. Cas., 1915C, 605.
The railway company also makes an assignment of error with reference to the allowance of interest. This matter, however, was not called to the attention of the trial court on the motion for a new trial, and the assignment of error is therefore overruled.
Other points made by the railway company do not require discussion.
The judgment of the court of civil appeals is affirmed.