141 Tenn. 493 | Tenn. | 1918
Lead Opinion
delivered the opinion of the Court.
Complainant filed this bill in the chancery court against the Interurban Transportation Company, a corporation, to enjoin it from using trucks upon the roads of the complainant. The hill shows in brief that the defendant is engaged in the transportation of freight over certain roads in Sumner county, which were formerly turnpike roads, built by corporations organized for such purposes. The county bought the turnpikes, and it and the state levied certain taxes upon defendant, which were all paid. Defendant owned a number of heavy trucks and operated them between the city of Nashville and points in Sumner and Trousdale counties, and over the roads which the county had purchased from the turnpike companies. The trucks and loads hauled over the roads and bridges in Sumner county weighed something more than ten tons, and are heavier than the roads and bridges, built by the turnpike
An injunction was granted upon the following condition :
‘‘But said injunction to stand dissolved when the defendant files with you [the C. & M.] a bond in the penalty of one thousand dollars, conditioned to pay the complainant such damages as it may sustain and the court award for any excessive or unreasonable use of the highways and bridges of Sumner county, under the charges and allegations of the original bill.”
The Hartford Accident & Indemnity Company became surety upon the bond.
The chancellor held the defendant liable for all damages to the roads and bridges occasioned by the use of the heavy, loaded trucks upon them. There is no showing that the use of the roads and (bridges was in an unreasonable way other than might be attributed to the use of heavy trucks. Judgment was rendered for more than $5,000 against the transportation company and for $1,000 against the surety. The surety appealed to the court of civil appeals, and as there was no showing in the evidence for “any excessive or un
The surety has filed this petition for certiorari, and contends that the decree of the court of civil appeals, although undertaking to save the questions made upon the merits of the controversy, nevertheless in effect adjudges the transportation company liable for excessive and unreasonable use of the highways and bridges, and its decree is therefore res adjudicata. We think this view is correct, and that it is necessary for us to decide the merits of the controversy. It is erroneous to suppose that the surety is not interested in the merits. If his principal had the right to run the motor trucks over the roads of the complainant, and if the management of the trucks being used was reasonable and with due care, the surety would have no liability whatever.
The county claims as vendee of the turnpike company. This does not strengthen the claim of the county, for it is manifest that the turnpike company did not own the roads, nor have power to convey them. It had the right to erect gates over them, and collect tolls for travel on them, by complying with certain conditions prescribed by law. But it never owned the roads, and therefore its conveyance to the county added nothing to the rights of the county, and merely destroyed the rights of the turnpike company. The roads belong
This being the established nature of a public road, the county court would have no power to exclude any
It follows, therefore, that the attempt of the county court to restrict the size of vehicles and the weight of their loads is void, because the legislature has not authorized such action.
Public roads, like everything else, are developing in their nature and character, and in the uses to which the public subjects them. As civilization develops, and the inventive genius of man progresses, new uses of public roads may be found. The remedy, in such event, is not to restrict the public in its enjoyment of the public highways, but to improve and enlarge the highways. Their sole use is to accommodate the public, and enable its members to communicate with each other, both socially and in a business way.
We do not think the defendant is liable for the excessive use of the roads. There is no legislative enactment prescribing an excessive use, and until there is one we cannot say that the uses to which the roads were subjected by defendant are excessive.
The unreasonable use of the roads by the defendant might be ascertainable. It must have been more than the weight of the vehicles and their loads, and must relate to the manner of the use, either in the management of the vehicles, so as to carelessly operate them upon the roads, or the reckless driving of the vehicle
Eeversed and remanded.
Rehearing
RESPONSE TO PETITION TO ReHEAE.
The petition to rehear is allowed, and the decree heretofore entered will be modified, so as to dismiss the case as to the defendant Hartford & Indemnity Company.
The statements made in the petition make a case for the modification above referred to, and as the petition is not answered its allegtions are taken as true both in law and in fact.