106 Tenn. 258 | Tenn. | 1901
This is a bill by the turnpike company to enjoin the county' of Davidson ffom opening and building a public road near Nashville, to be called Arlington Avénue.
The road, as projected, is about one-half a mile ■ long, and extends from a point on the com.pany’s pike- just beyond its first tollgate in an-oblique or diagonal direction to the Stone’s River-1 or Chicken pike near the southeast corner of Mount Olivet Cemetery. The road simply extends from the one pike to the other, and not beyond either, in either direction. The theory of the bill, and ground of complaint, is that the proposed road will be used and will operate as a shun-pike, whereby payment of tolls will be avoided
The Chancellor held against the complainant company, and denied it any relief, and dismissed its bill, and the company appealed.
The Court of Chancery Appeals reached the same result as the Chancellor, but upon different grounds, and the complainant has appealed to this Court and assigned errors.
The case, as it comes to this Court, depends upon the validity of the charter provision, and its "proper construction and interpretation.
The Court of Chancery Appeals report as facts that the proposed road, if opened, would be a great public convenience, and that it was not designed or intended as a shun pike for the purpose of depriving complainant company of its tolls, but from a 'sincere purpose to subserve the public convenience, but that it will materially injure the plaintiff, inasmuch as it will be used by a large •number of people as a way of getting into the city of Nashville and leaving it, without having to pay toll at gate No. 1 upon complainant’s road, and this damage is estimated at from $500 to $1,500 per annum. It is not insisted that
The complainant company was chartered in 1831 under Chapter 46, Acts of that year, and was organized a.nd has been operated under that charter ever since. That Act gives to the company all the rights, privileges, and immunities which had previously been conferred by the Acts of January -.1, 1830, upon a turnpike to be built from Nashville to Murfreesboro, and it is in this latter charter that the provision in question is found, at Sections 7 and 8. Section 7 is as follows: “That it shall not be lawful to open or establish any other road so near as to injure or prejudice the interest of the said Nashville & Murfreesboro Turnpike Co.”
Section 8 provides that the rights, privileges, and immunities granted to the original - members or stockholders of the company should pass to and vest in their successors. This is all that is necessary to set out of the charter, and conceding, as found by the Court of Chancery Appeals, that the present company is entitled to all the rights.
It is not necessary to give any technical definition . of the terms rights and privileges and immunities, as used in the charter. It is sufficient to say that under these terms are embraced such things as are valuable to the company in the exercise of the franchises conferred upon it. There can be no serious doubt but that the Legislature could grant to the complainant company such a right, privilege, or immunity as' is contained in this Act. Railroad Co. v. Hicks, 9 Bax., 442; Binghamton Bridge, 3 Wallace, 51, 71; Humphreys v. Piques, 16 Wallace, 244. Nor can there be any serious doubt but that upon the acceptance of a charter with such provisions it became a contract between the State and the complainant company, which, under Section 10, Article. 1, of the Federal Constitution, would become inviolable. As to what will be the ultimate effect or result of this holding we will consider further on.
We are now considering the question of ' the validity and ■ proper construction of the provision.
The Court" of Chancery Appeals was of opinion it was not sufficiently definite to found a right in complainant to the relief asked in this case, and that. Court cites and relies in its holding
In the first of these cases it is said “nothing passes against the • State or public by implication.”
In the case last cited it is said: “Nothing is taken or conceded ■ to a corporation, but what • is given in unmistakable term? or by an implication equally clear.” And again, “The contract, to be effective, must be clearly expressed in the charter.” Page 421. To. the same effect see, also, Vicksburg Railroad. Co. v. Dennis, 116 U. S., 665; Slidell v. Grandjean, 111 U. S., 412.
The correctness of this holding we are not disposed to question, but readily approve.
The Court of Chancery Appeals was of opinion that the charter provision was indefinite, in that it did not define the territorial limits or distance within which the road should not be constructed, and bearing upon this feature of the case the Court of Chancery Appeals cite the cases • of Enfield I. B., Co. v. Hartford Railroad Co., 17 Conn., 40 (42 Am. Dec., 716); Piscatequa Bridge v. N. H. Bridge et als., 7 New Hampshire, 35; Bridge Properties v. Hoboken Co., 1 Wall., 116; Binghampton Bridge, 3 Wall., 51, as illustrating
It is true that in the cases cited by the Court of Chancery Appeals the question is made to turn upon the matter of distance or territorial
The vague and indeterminate conditions which the Court of Chancery Appeals imputes to the terms of the charter do not relate to it, but if they exist at all, pertain to the proof that must be made. Proof must be made in either case, and it may and probably would be harder to make in the one case than in the other. We have constant questions arising ■ in the Courts of “reasonable notice,” “'reasonable skill,” “reasonable care,” and “reasonable compensation,” and while definite limits are not fixed in any of these cases,, it does not follow that they are indefinite, since they are ascertainable by proper inquiry and judicial investigation. The charter provision is virtually as if it read, “Ho other road should be
In the one case it must be shown that the road complained of is within a certain geographical distance or territorial zone, in the other that it is a material injury to' the established road. In the one case the , test is a physical, in the other a financial one.
We are of opinion that the Court of Chancery Appeals is in error in their view of the case, and that complainant is entitled to relief, and the question now to be considered is the character and extent of the relief that should be granted. Before passing to this, however, we refer to the contention made for the county that the charter had reference to a parallel road or one virtually parallel to the existing road, and therefore a competitor with it. But this contention is not supported by the language or reason of the Act. The critical question is not whether the new' road is parallel or has the same trend or direction as the established road, for there might be such a road without injury to the established road, but the question is, Does the new road, as constructed or projected, injure or prejudice the interest of the old road? If it does, it is within the inhibition of the charter, no matter what its
In the case of Red River Bridge Co. v. Mayor and Aldermen of Clarksville it was held that a grant by charter from the Legislature of an exclusive right to build a toll bridge within certain limits, although a contract, is such an exclusive right as must yield to the public interest, and the franchise acquired. under it may be taken for the public use, upon just compensation being paid therefor, without violating said contract or impairing its obligation in the sense of the Constitution. This doctrine is recognized and approved in Turnpike Co. v. Montgomery County, 16 Pickle, 425, citing 6 Am. & Eng. Ency. Law, 545, 546; Ayer v. Tuskaloosa Bridge Co., 27 Am. Dec., 655.
To the same effect are Enfield Toll Bridge Co. v. Hartford Railroad Co., 17 Conn., 40 (42 Am. Dec., 716); Piscatequa Bridge v. A. H. Bridge, 7 New Hampshire, 85; State v. Noyes, 47 Mo., 189; Mason & Harper Ferry Bridge Co., 17 W. Va., 396.
We are of opinion, therefore, that there is error in the decree of the Court of Chancery Appeals as herein indicated, and the decree of that Court is reversed and modified.
The cause is remanded to the Chancery Court
The costs of the cause up to the present time will be paid by the county.