100 Tenn. 417 | Tenn. | 1897
Plaintiff is the proprietor of a toll bridge over Red River, near the corporate limits of Clarksville, and sues the county to recover damages for loss of tolls, which it alleges has been occasioned by the act of defendant in erecting a free bridge over said river in such close proximity to plaintiff’s bridge as to divert therefrom more than three-fourths of its legitimate and accustomed patronage. A demurrer was interposed on behalf of the county, which was sustained by the Circuit Judge, and the suit dismissed. Plaintiff appealed, and has assigned errors.
It appears 'from the record that in July, 1893, the plaintiff, turnpike company, filed a bill against Montgomery County, to enjoin it against the construction of the bridge in controversy across Red River, and from opening a public road running thence northward, on the ground that the same was intended for a shun pike, and that if thrown open to public travel, it would practically destroy the value of complainant’s franchise. The Court of Chancery Appeals held that the proposed road was- not a shun pike, but that it was a public convenience, and that the County Count had a right to open it and build said free bridge. That decree was, on appeal, affirmed by this Court.
The demurrer interposed by defendant assigns the following grounds, to wit: “The county of Montgomery had the right to construct the highway complained of, in the plaintiff’s, declaration, because it was required by the public convenience; and the fact that such highway had the effect to diminish the travel on plaintiff’s turnpike, and, consequently, to diminish its revenue, will not entitle it to maintain this action. When the State granted a charter to the plaintiff company, it was not intended thereby to deprive the public authorities of the right to lay ■out such highways as the public travel required, and this highway is no infringement upon plaintiff’s charter rights. ’ ’
It is not alleged in the declaration that the rights and privileges conferred upon the plaintiff turnpike company by its charter of incorporation were exclusive, and no such insistence is made by counsel in argument. It is conceded, as was decided in the former litigation between these parties, that the County Court, in the exercise of its powers' and duties in respect of laying out and maintaining roads and highways for the convenience of the general public, had the right to construct this free bridge, and open up the new route. But • the insistence of learned counsel is that the effect of such public improvements by the county was to destroy the franchise of the turnpike company, and is equivalent to
Counsel rely upon Sec. 21, Art. 1, Declaration of Rights, Const. 1870, viz.: “That no man’s particular services shall be demanded or property taken, or applied to public use, without the consent of his representatives, or without just compensation being made therefor.” The argument is thát, if this new highway answers a public convenience, but in its effect necessarily involves the destruction of plaintiff’s property, it is a manifest “taking” or “application ’ ’ of its property to a public use without compensation. It is insisted there need be no actual physical application or taking possession of property to constitute a ‘‘ taking ” or “ application ’ ’ in the sense of the Constitution. The positions assumed by counsel have been reinforced by an able and elaborate argument, but we find ourselves unable to agree to its soundness.
Says Mr. Beach, in his work on Private Corporations, Yol. I., Sec. 25, viz.: “Accordingly, where a right or privilege is claimed under the charter of a corporation, nothing is to be taken as conceded to it but what is given in unmistakable terms, or by an implication equally clear.”
Section 26, viz.: “Especially, in cases where the corporation claims under its charter some exclusive privilege or exemption, have the Courts held that the contract, to be effective, must be clearly expressed in the charter. So that whenever an incorporated
Says Mr. Cooley, in his work on Constitutional Limitations, page 473, viz.: “The granting of a charter to a new corporation may sometimes render valueless the franchise of an existing corporation, but unless the State, by contract, has precluded itself from such new grant, the incidental injury can constitute no obstacle.” Citing Charles River Bridge v. Warren Bridge, 7 Pickering, 344, and 11 Peters, 420. “In that case the State of Massachusetts granted to a corporation the right to construct a toll bridge across the Charles River, under a charter which was to continue for forty years — afterwards extended to
The established doctrine on this subject, enforced by this Court, is that settled by the Supreme Court of the United States, to wit: “Where the grant is not, by its terms, exclusive, the Legislature is not precluded from granting a similar franchise or authorizing the construction of a rival way or structure, which may greatly impair or even totally destroy the value of the former grant, and such damage is not a taking of the former franchise which entitles its owner to compensation.” This principle was settled in the leading case of Charles River Bridge v. Warren Bridge, 11 Peters, 420, and has
Against these authorities, counsel for the company cite Red River Bridge Co. v. Mayor and Aldermen of Clarksville, 1 Sneed, 176, in which it was held that the bridge company was entitled to recover of the city of Clarksville compensation for destroying the franchise incident to plaintiff’s toll bridge by the construction of a free bridge in close proximity thereto. It was alleged in the bill, and admitted in the answer in that case, that the charter of the company provided that no other toll bridge should be at any time erected within one-half mile of plaintiff’s bridge. The Court assumed that the franchise was exclusive, and held that, notwithstanding such exclusive right, it must yield to the public interest, but that plaintiff was entitled to compensation. It is very obvious that the two cases are wholly dissimilar and that the former case is no authority in the present instance. “A franchise granted by the Legislature which is not exclusive in its terms, may be injured or affected by another franchise granted by the Legislature, without any compensation being made. But where the
It is claimed, however, that in reaching the free bridge erected by the county, travelers use a portion of plaintiff’s turnpike. Counsel very aptly say, in reply to this proposition, viz.: “This they [the public] have a right to do, and no tolls are collectible for such use of that portion of the pike between the gates.” A turnpike is a public highway, and travel upon it cannot be restricted. Counsel cite in support of this position Charles River Bridge Co. v. Warren Bridge Co., 11 Peters, 545, where Chief Justice Taney, quoting an English opinion; approvingly says: “The case itself was as strong a one as could well be imagined for giving the canal company, by implication, a right to the tolls demanded. Their canal had been used by the defendants to a very considerable extent in transporting large quantities of coal. The rights of all persons to navigate the canal were expressly secured by the Act of Parliament, so that the company could not prevent them from using it, and the toll demanded was admitted to be reasonable. Yet, as they only used one »of
Without further elaboration or citation of authorities, we think the demurrer was properly sustained, and the judgment is. affirmed.