32 Tenn. 422 | Tenn. | 1852
delivered the opinion of the court.
The defendants located their road for about five hundred feet, on a six acre lot of plaintiff, in.the vicinity of Nashville. The road runs through the corner of the lot, separating about three-fourths of an acre from the main lot, and occupying in the bed, which is from seven to ten feet deep, about three-foiirths of an acre. The plaintiff has his family residence on the lot, and it is handsomely and tastefully improved. The part separated, has upon it, some negro houses, p, cow house, well and spring house. Tie. plaintiff applied to the circuit court of Davidson county, under the act of 1845, ch. 1, chartering- said company, for the appointment of commission
The bill of exceptions contains the evidence on which the verdict was found. It consists of the survey and description of the lot; the tract of the road through it, and the opinion of witnesses, as to the injury done to the plaintiff, on the one hand, and the enhancement of the value of his property, on the other.
The injuries enumerated, are of this character: cutting off the plaintiff from his well, spring-house, &c.; the necessity of moving out-buildings; erecting a stone wall in the cut made for the road, to keep up the ground, and prevent accidents; detracting from the beauty and comfort of the lot, as a family residence, &c.
Against all this, on the other hand, it is proved, that his lot is enhanced in value, in the market, by the erection of the road, from twenty-five to fifty per cent.
The law was laid down by the circuit judge in his charge, in part, and so far as it is necessary in our examination, as follows: “ You will recur to the testimony, and ascertain from that the value of the land taken for the road, and take into consideration such other inconveniences and damages, as shall have resulted to the plaintiff from the acts of defendant. You will estimate what damages the plaintiff may have suffered, if you shall think that any have accrued; then you will look to the testimony in the cause, and ascertain .whether the acts of the defendant,' in locating the road upon the land of the plaintiff, have resulted in benefit, or advantage, to him. On ascertaining this, you will determine whether the lands of the plaintiff have appreciated in value. You will not look to the fact, that this road is a public benefit or advantage, unless that public benefit or advantage be inseparable from the benefit conferred upon the plaintiff. If any advantages have resulted, you will determine what they are, and assess their value. You will then take the amount of benefit or advantage from the amount of damages, and the remainder, if any, will make your verdict. In ascertaining the benefits and damages, you will confine yourselves to the time when the defendants appropriated the land of the plaintiff to the use and construction of the road.”
Thus is the law laid down by the circuit court, and both parties are dissatisfied with it. The defendant brings
It would, at this day, be worse than useless, to enter into a discussion of the existence and extent of the right of eminent domain, and to prove that it is inherent in this, and all other governments. That is now well settled, and admitted on all hands, to exist in every State and country. No one now questions the right of the State to take private property for public use, against the consent of the owner. Questions frequently arise, and may come up again, as to the extent and right exercise of this conceded power. But it is not controverted, that it applies to the case of public roads, and that rail roads, whether constructed by the State, or chartered companies, are of that character. The land of
. But this, as well as other provisions of the same character, are intended solely as limitations on the exercise of power by the general government, and is not applicable to the legislation of the States. The State constitutions are framed by different persons, and have distinct objects in view. The State governments are not restricted by the limitation of a power, expressed in general terms in the constitution of the United States. The States must be included in terms, or necessary implication in such limitation or negation of powers, or they are not affected; Barrow vs. The Mayor of Baltimore, 7 Peters, 243; 2 J. J., Mar. 45.
The constitution of the United States, cannot, therefore) be looked to for the rule to govern us in this case. But the people of this State, and perhaps most, if not all
Tbe power to take private property, for “public use,” is here impliedly admitted; and tbe legislature undoubtedly possess it, with tbe limitation prescribed; that is, by making just compensation. This is only in affirmance of tbe great principles of tbe common law. Tbe important, and only question in this case, is, wliat is meant by “just compensation?” How is it to be ascertained; and bow, when, and in what paid? When this is settled upon a fair construction of that instrument, it must prevail, and no act of assembly can change or alter it. All laws are subordinate to this supreme law, and must yield to it, as they are null and void when they come in conflict with it. It follows, therefore, that if tbe legislature attempted in this charter, to substitute .any other compensation for private property taken for this road, or directly, or by indirection, deprived tbe citizen of that “just compensation,” in whole or in part, which is secured in tbe organic law, it has transcended its authority, and trespassed upon sacred ground. If it should be our opinion that this has been done, it becomes an imperious duty, delicate and unpleasant as it may be, to sustain tbe constitution, which we have sworn to support, with a firm band. That must stand, no matter what else may fall. It must be guarded with untiring and sleepless vigilance from all attacks. Upon tbe judi
Then what is the power of the State, and the rights of the citizen, in the question now before us? The former may take the private property of the latter, for public use, as has been done in this case. The citizen has a concomitant right, founded in the constitution to a “just compensation.” Iiow is this right to be asserted? It is certainly the duty of the government to provide some fair and proper mode of ascertaining the value of the property taken, where it cannot be agreed upon, by the parties, and to make provision also, for the payment, when it is ascertained in the mode and manner contemplated by the constitution.
The charter of the defendant was granted in 1845, ch. 1. The twenty-fourth section regulates the mode of ascertaining the damages to individuals, and the manner of compensating them for lands taken for the road. It provides that where the land cannot be' purchased, or the price agreed upon, “the same may be taken at a valuation to be made by five commissioners, or a majority of them, to be appointed by the circuit court of the county where some part of the land, or right of way, is situated,” who shall take an oath “faithfully and impartially to discharge the duty assigned them. In making the said valuation, the said commissioners shall take into consideration, the loss or damage which may occur to the owner or owners, in
Either party may appeal and have a new valuation by a jury in court, where verdict shall be final, unless a new trial is granted. “And the lands, or right of way, so valued by the commissioners, or jury, shall vest in the said company in fee simple, so soon as the valuation may be paid, or where refused, may be tendered.”
It is further provided, that an appeal is not to stop the work, nor can the same be delayed by injunction, or supersedeas. But in case the appeal is by the company, surety must be given to pay whatever may be awarded in the court.
Here is a full and vigorous exercise of the power of eminent domain. The fee simple title is vested in the corporation. No objection is made, nor do we see any, under the construction that a jury trial, in the regular common law mode, is adopted in case of appeal, to the provision made in this section for settling the rights of the parties. But the contested and embarrassing question, still arises upon the rule prescribed in this law, for ascertaining the “just compensation” to
Is this the measure of “ compensation,” prescribed in the constitution?' Was the compensation secured to the owner for the loss of his property to be paid in money, or may it be made in other property, or incidental “benefits and advantages?” Was it intended, that the citizen should not only be forced to give up his land for the common or public use, but to take in payment for it, any thing it might suit the party taking it, to offer? If such be the true meaning of the constitution, it is certainly a poor protection of private rights against the exactions of power, and is only calculated to excite false hopes of security. By the supreme law, the legislature are empowered, where, in their opinion, the good of the whole people requires it, and for the use and benefit of the whole, to compel him who owns property to give it up, upon the payment to him by the same public, for whose use it is taken, a “just compensation,” or, in other words, a fair price, or the value in money, for the property taken.
He cannot be paid off in “benefits and advantages,” which are thus forced upon him, against his consent. He may be compelled to submit to the encroachment upon his private rights, when they come thus in conflict with the public interest, but with the charter of his
Then we arrive at the conclusion, that the plaintiff is entitled to the value of the land, taken from him by the defendants, in money, and that this value, when ascertained, cannot be liquidated in whole, or in part, by any “benefit or advantage” he may in fact or by supposition, derive from the making of the road, in the
It is difficult to lay down any very definite rule for the government of commissioners and juries on this subject, which will be of easy practical application in every case. Yet, it is highly important, that some principle be settled, and the extent of its application to peculiar circumstances defined, calculated to produce uniformity, and rid the subject of that vagire and indefinite character which now seems to perplex the minds of those who have to act upon it. We consider the proper rule to be this, that the fair cash value of the land taken for public use, if the owner were willing to sell, and the company desired to buy that particular quantity, at that place and in that form, would be the measure of compensation. It is not in the nature of a wrongful taking, for which damageá are to be assessed. Nor is it a claim for any wrong or damage done, but the appropriation of the property is legal and rightful, as much so as if the owner had voluntarily sold it to the company, áfed the only open question was, what is a fair price for the property? What is its value? Now, from this definition of the nature of the transaction, it will follow, that there can be nothing added to the price on account of the unwillingness of the owner to part with his land, or to have the improvement there, or because he may have to build fences and walls, or be put to inconvenience in getting to his out-buildings, or have them to remove, or such like inconveniences. These things do not enter into a just idea of a just compensation for the property actually taken, but are
1. The quantity of land taken. It would not be reasonable to fix the price of one acre, or the fourth of an acre, at the general rate of the whole tract, or a larger quantity. This would be selling by retail, and ought to be at a higher price, for the quantity taken.
2. The place where the land lies, which is thus appropriated, with reference to external circumstances. Is it in the country, a village, or city? With reference to remaining land, is it taken on the outer line, with the bed of the road only, on the land; or does it run so as to divide the land in a regular, or awkward form ? through a garden? stable lot? or the family yard? between the
3. Auy general effect, that the actual or contemplated erection of the rail road, or special effect of the location of it at that particular place, may have upon the value of that land, whether it has been to improve or lessen the price, is not to form an element or be considered in the valuation. If the value is elevated by the work, he should not have the advantage of it, because we do not make him account for the increased value of the remainder of his land; and if the value is reduced by it, he should not suffer, because he is forced to part with his property for that purpose, against his will.
4. The incidental advantages, and disadvantages, benefits and injuries, are to be left entirely out of view. The owner’s unwillingness to sell, or to the location of the road on his land, or near his house, on the one hand; and the necessity the public is under to have the land at that particular place, on the other, are to have no influence on the price. The property is to be valued on the same principles and considerations, as if both parties had agreed upon the sale, and had referred the -single question of the intrinsic value of that particular property, to the commissioners. The consideration for his property, to which the owner is entitled, being thus ascertained, it must be paid to him in money. To compel him to
Here, tlie constitutional provision ends; its inhibition upon the government goes no farther. The legislature may make any regulations it thinks right and proper for an account, or estimate of incidental “loss or damage,” or injuries to the land owner. These may consist of the necessity created for the building of new fences, the removal of buildings, separating him from his spring, well, mills, negro houses, barns, &c. And against this, may be set off, the “ benefits and advantages ” to the owner, in the enhancement of the value of his remaining land, of the same, or any adjoining tract, his increased facilities of travel, &c. "We think the legislature have the power to do this; and if required by the petitioner, the court would be bound, under this charter, to direct the commissioners, or in case of appeal, the jury, to make the estimate on both sides, upon the basis here stated. But this must be separate and distinct from the valuation of the land, for the purpose of ascertaining the compensation required by the constitution, and cannot be blended with it, or in any way enlarge or reduce it. It is true, that the nature of the items on both sides of this account, would be of a very vague and indefinite character, depending before commissioners, upon their opinions upon the view and examination of the ground, and before a jury, on appeal, upon the opinions and fancy of witnesses. But for that, no remedy or definite rule can be furnished, which will clear the subject of its inherent difficulties. But this enhancement of the price, which may be taken into the account against the petitioner, must be confined in the estimate to the lot, or tract, through which the road runs, or to lots or
To -these conclusions we are brought, by what seems to us, a fair construction of our own constitution. And we find, that we are fully1 sustained in them, by the court of appeals of the State of Kentucky, in the case of Jacob vs. The City of Louisville, 9 Dana, 114. In that case it is stated, that the same principles had been adopted in Sutton’s heirs vs. The City of Louisville, 5 Dana, 28, and in Rice vs. Nicholasville, Danville and Lancaster Turnpike Company, 7 Dana, 81. The language used in the constitution of Kentucky, is substantially the same as ours on this subject.
¥e are aware that in some of the States, contrary and conflicting views have been entertained on some of the points now decided. . It would be a useless extension of this opinion, to review them, as it could be productive of no advantage. The diversity presented may be partly attributed to the different constitutional provisions on the subject, and to the fact, that some of the State constitutions are entirely without any such provisions. And again, the legislative enactments, and the form in which the questions have been presented to the courts, have been so variant, and dissimilar, that the diversity seems at first view, to be- greater than it really is, upon closer examination.
Eor the errors in law above indicated, in the charge of the court below, we reverse the judgment in this case, and remand the cause for a new trial on the principles laid down in this opinion.