Clouse v. Garfinkle

Mr. Justice Bailor delivered the opinion of the Court. The hill in this cause was filed by Clouse against Gar-finkle and the City of Nashville, to clear the title to a certain triangular tract of land abutting on the new Murfreesboro Pike in Nashville, Tennessee. The land was formerly a part of lots 1 and 2 of the O'. Ewing plan on the western margin of Ewing Avenue. By condemnation, the City acquired its rights in the land from one Catherine E. Hicks. • After the new street was widened and improved, there was left this small triangular tract. By ordinance, the City of Nashville declared that this tract was abandoned and was not necessary for the improvement, and thereafter, in consideration of a claim which Defendant Garfinkle had against the City, the City deed to him this triangular tract of land. Some months after this, the original owner, Catherine E. Hicks, quit-claimed to the Complainant B. C. Clouse, this same triangular tract of land, and to clear his title, the Complainant filed the present bill. The Chancellor decided the case for the Complainant and on appeal, the Court of Appeals reversed. On account of the disagreement we granted certiorari. For the Complainant Clouse, it is insisted that the City, by condemnation for street purposes, acquired only an easement in the land, and that when by resolution, the City evidenced its abandonment of the surplus triangle, that there was a reverter to Mrs. Hicks, and that she therefore conveyed clear title to the triangle to the Com — 680 — plainant Clouse. On the contrary, it is insisted for the Defendants that by the decree by which the City acquired its rights from Mrs. Hicks, the City took her entire property in fee simple, paid adequate consideration therefor, and therefore, had good title to convey to the Defendant Garfinlde. Evidently, the controversy is to be determined by proper construction of the decree in the condemnation proceedings in the light of the surrounding facts and circumstances. In July 1944, the City decided to improve and widen Lafayette Street from 2nd Avenue to 8th Avenue, and to effect that improvement, passed an ordinance, a part of which is as follows: “The City of Nashville further ordains that the City Attorney be, and he is, hereby, instructed to institute proceedings provided in Section 3109 of the Code of Tennessee of 1932 by the City of Nashville, for the taking and appropriation by the City of Nashville of certain tracts of land hereinabove described in Section One of the Ordinance for the purpose of widening, opening and extending Lafayette Street as aforesaid.” Pursuant to and limited by this authority, the City Attorney filed the condemnation proceeding and the public purpose of the condemnation was stated to be as follows: “Public necessity exists for the City of Nashville to acquire and hold’ for a public highway and street purposes . . ..” After the filing of the bill and proceeding under the provisions of Sections 3109 et seq., as authorized by the ordinance, a jury of view was selected and made an award to Mrs. Hicks, fixing the value of the land taken at $1,000 and incidental damages at $6,500, or a total award of $7,500. Both parties, being, dissatisfied with this — 681 — award, perfected their respective appeals to the Circuit Court in the usual way, and while the case was pending there and before the trial had been had before a jury, a decree of compromise and settlement was entered on May 19, 1945. The pertinent parts of this decree are as follows: “This cause came on to be heard this the 19th day of May, 1945, before the Honorable E. F. Langford, Judge, on the pleadings and all former proceedings in the case, and especially on that portion of the Report of the Jury of View heretofore appointed by the Court which relates to the parties and the land hereinafter set out, and to which report both the City of Nashville and the Defendant, Catherine E. Hicks, excepted. (Here follows Report of Jury of View.) “And it appearing to the Court that the parties have reached a settlement in this matter whereby the City of Nashville agrees to pay for said property the sum of Fifteen Thousand ($15,000') Dollars, the City of Nashville to retain the salvage; “And it further appearing to the Court that the City of Nashville has the right under the law of eminent domain to condemn the property hereinafter described for the purposes recited in the original petition; “It is, therefore, ordered, adjudged and decreed by the Court that the Defendant, Catherine E. Hicks, have and recover of the City of Nashville the sum of Fifteen Thousand ($15,000) Dollars for said parcel of land taken in said proceedings and hereinafter described as Parcel No. 31. “It is further ordered* adjudged and decreed by the Court that the title to said tract of land condemned and mentioned and described as follows: — 682 — (Here follows description.) “be and the same is hereby divested ont of Defendant, Catherine E. Hicks, and vested in the City of Nashville, to be used for the purposes for which it was condemned. “O. K. for entry: “W. C. Cherry, City Attorney “Jacobs H. Doyle, Atty. for Deft. /s/ E. P. Langford, Judge.” While this is a consent decree, as is shown by external evidence, it was so only to the extent that the amount of compensation was agreed upon. The sale by Mrs. Hicks was still an unwilling sale to the sovereign in its exercise of the right of eminent domain. The decree recites expressly that the City acquires its rights by condemnation and the exercise of its power of eminent domain, and the Trial Judge found that' the City had the right to acquire the property in the exercise of its right of eminent domain for the public purpose set out in the petition of condemnation. Furthermore, the agents of the City, who were conducting the lawsuit and condemning the property, had only such authority as was given them in the enabling ordinance. Clearly, the extent of the authority was to acquire the property for use as a public street, under Sections 3109 et seq. of the Code. The ordinance expressly so provides. The agents of the City had no authority to proceed to acquire the fee under Code Sec. 3397, and from the repeated recitals that they were proceeding under Code Sec. 3109, it is evident that the rights given the City under Code Sec. 3398 have no application here.- flit is the general rule, supported by a number of our cases, that in the exercise of the power of eminent domain, the sovereign or its — 683 — .delegate has the light to take only so much property as may be necessary for the public improvement in hand, and that in the case of streets or highways, an easement only, is necessary. “The streets of cities and towns belong to the public, and the municipality where they are located holds them in trust for it. This interest of the public is generally defined and held to be an easement. Humes v. Mayor and Aldermen, 20 Tenn. 403, 34 Am. Dec. 657.” McHarge v. Newcomer & Co., 117 Tenn. 595, 604, 100 S. W. 700, 9 L. R. A., N. S., 298; State v. Taylor, 107 Tenn. 455, 463, 64 S. W. 766; Hamilton County v. Rape, 101 Tenn. 222, 225, 47 S. W. 416; Iron Mountain Railroad Co. v. Bingham, 87 Tenn. 522, 530, 11 S. W. 705, 4 L. R. A. 622; Smith v. East End Street Railroad, 87 Tenn. 626, 630, 11 S. W. 709; Tenn. Power Co. v. Rust, 8 Tenn. Civ. App. 368; State of Georgia v. Chattanooga, 4 Tenn. App. 674. “We are of opinion that the grant presumed to have been made by Telford was a grant not of the fee, but of an easement. The doctrine of eminent domain rests upon the presumed necessity for the taking of private property for a public use. The taking, to be consistent with this theory, must, therefore, ordinarily be limited to the apparent necessities of the public.” East Tenn. V. & G. Railway Co. v. Telford’s Executors, 89 Tenn., 293, 297, 14 S. W. 776, 10 L. R. A. 855. “Upon the principle that statutes conferring compulsory power are to be strictly construed, it follows that, where the estate taken is not defined, only such an estate or interest will vest as is necessary to accomplish the purposes in view, and where an easement is sufficient, no greater estate can be taken.” (Emphasis ours.) Lewis on Eminent Domain, Sec. 449. — 684 — “Where land is appropriated to the public use under the right of eminent domain, and against the will of the owner, we have seen how careful the law is to limit the public authorities to their precise needs, and not to allow the dispossession of the owner from any portion of his freehold which the public use does not require. This must be so on the general principle that the right, being based on necessity, cannot be any broader than the necessity which supports it. For the same reason, it would seem that, in respect to the land actually taken, if there can be any conjoint occupation of the owner and the public, the former should not be altogether excluded, but should be allowed to occupy for his private purposes to any extent not inconsistent with the public use. As a general rule, the laws for the exercise of the right of eminent domain do not assume to go further than to appropriate the use, and the title in fee still remains in the original owner.” Cooley’s Constitutional Limitations, (8th ed.) Yol. 2, p. 1193. The case of Tenn. Power Company v. Rust, 8 Tenn. Civ. App. 368, is authority for the proposition that under Section 1844 of Shannon’s Code, now Williams’ Code, Sec. 3109, the condemnor cannot acquire the fee. In that opinion it was said at pages 375-6: “With these authorities before us and to govern our consideration and determination of this case it seems clear that condemnation statutes will be strictly construed and no power to take the fee is vested unless expressly given in and by the statute. Where the right to take the fee is claimed, that right must be clear and not subject to uncertainty or doubt. If an easement will answer the purposes for which the land is to be used, then the fee will not be divested out of the owner of the land — 685 — and vested in the corporation for a public use.” Tenn. Power Co. v. Rust, 8 Tenn. Civ. App. 368. In another Tennessee case it was held that the public necessity being a highway, the condemnation of the fee was error: “When the present case was tried before the chairman of the county court, after establishing the road, he divested title out of the plaintiff in error and vested it in the public, and this was affirmed by the circuit judge. This matter is complained of here. We are of opinion that the order of the county court, and also the judgment of the circuit court, was in that respect erroneous.- The public obtains no title to the road, but only an easement, or right of way, so far as the same may be necessary to render effective and operative in the public the right to occupy and use as a public road the land laid off as such.” Carroll v. Griffith, 117 Tenn. 500, 505, 97 S. W. 66, 67. If, from the language of .the decree, there is any doubt whether an easement or the fee was acquired, that doubt must be resolved against the City, as the party seeking to exercise the power of eminent domain. City of Chattanooga v. State, 151 Tenn. 691, 272 S. W. 432; Chicago, St. L. & N. O. Railroad v. Moggridge, 116 Tenn. 445, 92 S. W. 1114; Woolard v Nashville, 108 Tenn., 353, 361, 67 S. W. 801; White v. Nashville & N. W. Railroad Co., 54 Tenn. 518, 540; Cooley’s Constitutional Limitations, supra. As the Chancellor found and held, there is a further rule by the application of which doubts arising from the language of the decree must be resolved against the City. The record shows that the order was prepared by the City' Attorney. It is a well recognized rule of — 686 — construction that doubts in an ambiguous instrument should be resolved against the party who drew the instrument. Standard Oil Co. v. Storage Co., 163 Tenn. 565, 44 S. W. (2d) 317. The City insists That because by the order in the Circuit Court, “the title” to the tract of land was divested- out of Mrs. Hicks and vested in the City of Nashville, that use of the word “title” necessitates a construction that a fee simple title was vested in the City. This argument overlooks the final clause of the paragraph of the order in the Circuit Court by which title was vested and divested, that clause was “to he used for the purposes for which it was condemned.” Further, this same argument with regard to the implication of the word “title” was made and rejected in the Telford case, supra, where the Court said: “When the statuté does not clearly authorize the condemnation of the fee, the easement alone should be condemned. This charter method of condemnation does not expressly condemn the fee and we think the ‘grant’ presumed, and the ‘title’ acquired, is a grant of an easement, and the title to the easement, and nothing more. Cooley, Const. Lim. (5th Ed.) 691; Washington Cemetery Co. v. Prospect Park & C. I. Railway Co., 68 N. Y. [591], 594; Lewis’ Em. Dom. Section 278.” East Tenn. V. & G. Railway Co. v. Telford’s Executors, 89 Tenn. 293, 297-298, 14 S. W. 776, 10 L. R. A. 855. From all these authorities it is clear that the statutes giving the power of eminent domain will he construed strictly against the condemnor, that in a very large majority of cases, at least, cities have only an easement in their streets, and the Courts have universally refused to enlarge the interest by implication. It re687 suits that the decree of the Court of Appeals is reversed and that of the Chancellor affirmed. Defendants will pay the costs. Neil, C. J., dissents.