Opinion
Opinion filed February 7, 1969.
1. STATUTES
Statute authorizing reverse condemnation suit and statute providing for 12-month period in which landowner shall sue in reverse condemnation must be read in pari materia with relevant sections of chapter providing for exercise of power of eminent domain. T.C.A. secs. 23-1423, 23-1424.
2. EMINENT DOMAIN
Parties having power of eminent domain may proceed by petition to condemn and while such proceeding is pending, property owner may not resort to reverse condemnation suit. T.C.A. secs. 23-1423, 23-1424.
3. EMINENT DOMAIN
Statute relating to reverse condemnation becomes operative either upon taking of land without petition on part of taker, or upon nonsuit of condemnation petition. T.C.A. sec. 23-1423.
4. EMINENT DOMAIN
Statute providing 12-month period in which landowner shall sue in reverse condemnation was enacted to be applied with statute authorizing reverse condemnation suits so as to provide a remedy and an ordinary statute of limitation. T.C.A. secs. 23-1423, 23-1424.
5. EMINENT DOMAIN
Statute providing a 12-month period within which landowner shall sue in reverse condemnation was intended to become operative only at time suit could be brought under statute providing for reverse condemnation. T.C.A. secs. 23-1423, 23-1424.
6. LIMITATION OF ACTIONS
Ordinary statute of limitation commences to run when plaintiff has cause of action and right to sue.
7. EMINENT DOMAIN
Statute providing 12-month period within which landowner shall sue in reverse condemnation commenced to run as of date school system nonsuited its condemnation proceeding and not the prior date when it commenced constructing improvements and therefore suit in reverse condemnation filed within 12 months of nonsuit was timely. T.C.A. secs. 23-1423, 23-1424.
FROM MONTGOMERYWALDO E. RASSAS, Clarksville, for plaintiffs in error.
COLLIER GOODLETT, JR., of GOODLETT GOODLETT, Clarksville, for defendant in error.
Reverse condemnation suit against school system, which demurred on ground that suit had not been timely brought. The Circuit Court, Montgomery County, Thomas Boyers III, Circuit Judge, sustained demurrer and plaintiffs appealed. The Supreme Court, Humphreys, Justice, held that statute providing 12-month period within which landowner shall sue in reverse condemnation commenced to run as of date school system nonsuited its condemnation proceeding and not the prior date when it commenced constructing improvements and therefore suit filed within 12 months of nonsuit was timely.
Judgment of lower court set aside and case remanded.
Clarksville-Montgomery County School System instituted a condemnation proceeding in Montgomery County Court to acquire a house and 1.6 acres of land in Montgomery County, the property of Armistead and his wife. By order of the Court, the School System was found to have the right to acquire the property. Appraisers were appointed, who made a report to which the Armisteads excepted, and the case was appealed to the Circuit Court.
During this time, the School System removed a great amount of dirt, and had the County develop 27' x 300' of frontage for road purposes, which is now so used. The exact date of this construction is uncertain, but it appears to have been begun about August 2, 1966.
On October 11, 1966, the School System nonsuited. The Armisteads unsuccessfully sought to have this order set aside. Then on September 21, 1967, they filed a reverse condemnation suit pursuant to T.C.A. sec. 23-1423, to recover damages.
The School System, relying on T.C.A. sec. 23-1424, demurred to the suit on the ground the declaration disclosed the suit had been brought more than twelve months after commencement of construction by the School System on August 2, 1966. This demurrer was sustained by the Circuit Court, and the Armisteads have appealed, challenging this ruling by proper assignments of error.
So, the sole issue is whether T.C.A. sec. 23-1424, providing a twelve-months period within which landowners shall sue in reverse condemnation, should be construed so that the twelve-months limitation period would commence to run as of the date the School System nonsuited its condemnation proceeding, October 11, 1966, or on the day the School System commenced constructing improvements, on August 2, 1966. For reasons we shall state, we are of opinion the period of limitation commenced to run as of the date of the nonsuit, so that the suit was not barred.
We have had no case in either the Court of Appeals or this Court like this one. So, although there are statements in cases cited by the School System which would seem to cut off the landowners' suit, those statements were not made on the basis of a construction of the statutes involved in a fact situation of this kind, and are not controlling.
Sections 23-1423 and 23-1424 are a part of Chapter 14 of Title 23 of the Code, providing for the exercise of the power of eminent domain and the rights of the respective parties where the exercise of this power is involved, so these two sections must be read in pari materia with the relevant sections of this Chapter.
The Chapter, when read and construed in its entirety, provides, that parties having the power of eminent domain may proceed against property by a petition to condemn, and while such a proceeding is pending, the property owner must work out his rights under the provisions of Chapter 14 applying to a defendant in such a case, and cannot resort to sec. 23-1423. This means then, that T.C.A. sec. 23-1423 becomes operative either upon the taking of land without a petition on the part of the taker, or upon the nonsuit of the condemnation petition. So, since sec. 23-1424 was enacted, not for the purpose of providing an absolute bar to an action such as this, East Tennessee and W.N.C.R. Co. v. Gouge, 30 Tenn. App. 40, 203 S.W.2d 170, but was enacted to be read and applied with sec. 23-1423 so as to provide a remedy and an ordinary statute of limitation, in land taking involving the power of eminent domain, it must be held sec. 23-1424 was intended to become operative only at the time suit could be brought under sec. 23-1423, one of which times would be following a nonsuit of the condemnation case. An ordinary statute of limitation commences to run when the plaintiff has a cause of action and the right to sue. See many cases annotated under Limitations portion, 14 Tenn.Digest, Limitations of Actions, 43, p. 77.
As suggested at the oral argument of this case at the Bar of the Court, any other construction would leave the owner at the mercy of the taker, and without an effective remedy at law. For, a party having the power of eminent domain could enter upon land, file a petition for a condemnation, and taking advantage of the law's delay, nonsuit after 12 months from the taking, and leave the landowner without that recompense guaranteed him by our Constitution. Tenn.Const., Art. 1 sec. 21.
The assignments of error are sustained, the judgment of the lower court is set aside, and the case is remanded for further proceedings.
BURNETT, CHIEF JUSTICE, and DYER, CHATTIN, and CRESON, JUSTICES, concur.