Summary
In Brown Heirs v. Cannon County, 165 Tenn. 554, 56 S.W.2d 735, 736, an action for the value of lands taken was pending against the County when the Act of 1931 was passed.
Summary of this case from Phillips, Com'r., v. State ex relOpinion
Opinion filed February 11, 1933.
1. HIGHWAYS. Eminent domain. Statutes. Construction of Chapter 57, Acts of 1931.
Chapter 57 of the Acts of 1931 transfers from the county to the State liability for the cost of all rights-of-way for State highways not paid for or settled prior to its enactment, even though there was no pending litigation or dispute between the State and a county as to their respective liability. (Post, p. 556.)
Act construed: Acts 1931, ch. 57.
Case approved: Baker v. Donegan, 164 Tenn. (11 Smith), 625.
Case differentiated: Shelby County v. J.H. Adams (Court of Appeals, 1932).
2. EMINENT DOMAIN. Highways. Liability of State where condemnation suit was pending between property owner and county at time of passage of chapter 57, Acts 1931.
Where at the time of the enactment of chapter 57, Acts of 1931 an action was pending between one whose land had been taken for a State highway and a county, the Commissioner of Highways was properly made a party thereto and the State held primarily liable for the value of the land. (Post, p. 556.)
3. HIGHWAYS. Constitutional law. Eminent domain. Liability of county for land appropriated prior to Act of 1931.
One whose land was taken by condemnation for a right-of-way under a statute making the county liable is entitled to a judgment against the county, notwithstanding the enactment of a statute fixing liability upon the State. (Post, p. 557.)
Case cited: Baker v. Rose, 165 Tenn. (1 Beeler), 543.
FROM CANNON.Appeal from the Circuit Court of Cannon County. — HON. JOHN E. RICHARDSON, Judge.
STERLING S. BROWN, for Brown Heirs.
CUMMINGS MELTON, for Cannon County.
ROY H. BEELER, Attorney-General, JOHN L. NEELY, Assistant Attorney-General, and W.C. COOK, for State of Tennessee.
The State Highway Department constructed a state highway through lands belonging to Brown Heirs, in Cannon County, in 1928, and thereafter Brown Heirs instituted this action against Cannon County, by petition asking for jury of view, and judgment against the county for the value of the land taken and incidental damages.
The action was pending when Acts 1931, chapter 57, was enacted, whereupon the county caused the Commissioner of Highways and Public Works for the State to be made a party, and sought to have the State substituted as the party liable to compensate the landowners.
The circuit court rendered judgment against the State for the damages found by the jury of view, and the State has appealed in error.
The assignment of error filed by the State is that it is not liable for the damages awarded in this case, because at the time of the enactment of Acts 1931, chapter 57, "there was no pending litigation or dispute between Cannon County and the Department of Highways and Public Works as to their respective liability for the rights of way in Cannon County, and the Department of Highways and Public Works was not a party to this suit."
This contention of the State is grounded upon an opinion of the Court of Appeals at Jackson in the case of Shelby County v. J.H. Adams, filed March 3, 1932, construing Acts 1931, chapter 57. In that opinion the Court of Appeals limited the retroactive effect of the statute to instances in which, at the time of its enactment, there were pending disputes or litigation between the State and a county as to their respective liability.
Judgment was rendered against the county in the case cited. We denied certiorari and concurred in the result, because the landowner was insisting on his right to hold the county, and we were then of opinion that the county's liability to the landowner was not affected by the Act of 1931, for the reasons stated in the opinion we have this day filed in Baker, Commissioner, v. T.W. Rose.
The opinion of the Court of Appeals in Shelby County v. Adams, was filed prior to the decision of this Court in Baker v. Donegan, 164 Tenn. 625, 47 S.W.2d 1095. In that case we construed the Act of 1931 as broadly excluding county liability, in so far as the State is concerned, for all rights of way thereafter adopted, designated or taken over "whether such projects have been completed or are now under construction, or whether such rights of way are now involved in litigation," etc. We said: "This broad language could hardly have been employed except with the intention that it express the general rule to be followed and applied with respect to rights of way already acquired but not paid for."
The phrase in section 2 of the statute, "or whether such rights of way are now involved in litigation . . . as between said Department and the county or counties affected," etc., was construed by the Court of Appeals as limiting the scope of said section 2. We cannot agree to that construction. It ignores the introductory word "or," and is antagonistic to the context, which plainly shows that the phrase quoted was employed, by way of emphasis, to indicate that the transfer of liability from county to state, accomplished by the general language preceding, should apply even to instances then involved in litigation or dispute between county and state, and that such pending litigation or disputes should not interfere with or prevent the State's assumption of liability. This was the view we held in writing the opinion in Baker v. Donegan, supra, and we adhere to it now.
The assignment of error of the State will therefore be overruled.
Brown Heirs have also appealed in error, and contend, by assignment of error, that the circuit court erred in failing to hold that Cannon County, as well as the State, was liable to them for the damages awarded.
This assignment of error is sustained, on the authority of Baker, Commissioner, v. T.W. Rose, 165 Tenn. 543 this day decided.
The judgment of the circuit court will be modified accordingly, and the judgment to be entered here will be rendered against the State and county jointly. Otherwise the judgment of the circuit court will be affirmed. Costs of the appeal will be included in the judgment.