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satisfactorily compensated by the larger
We are of opinion, therefore, that the circuit judge committed error in not sustaining the demurrer to the third count of the declaration, and the first assignment is sustained.
Other assignments of error are disposed of in a memorandum opinion filed with the record, and need not be further referred to here.
Reverse and remand.
City of MEMPHIS et al., Appts.,
(113 Tenn. 142.)
legislature may authorize
boulevard connecting public parks is not unlawful on the ground that it is for mere convenience or pleasure, not for necessity.
a title stating the object of the statute to be to authorize the acquisition, improvement, and maintenance of parks.
authorizing the condemnation of land outside the city limits for park purposes is not invalid for not providing compensation to the owner of the land taken, where it provides that the proceedings for the exercise of the power of condemnation shall be the same as that now provided by law for the taking of private property for public use, and the charter of the city incorporates within itself the general condemnation statutes of the state.
4. A provision in a statute authorizfor ing the condemnation of land boulevards to connect parks is covered by
NOTE. For a collection of authorities upon
the right to take property for the comfort and pleasure of the public, see Knowlton v. Will iams, 47 L. R. A. 314.
The creation of a park commission and a board of park commissioners is within the purview of a title authorizing the acquisition, maintenance, and improvement of parks. 6. An amendatory act, whose caption merely recites the title of the original act, without enlarging its scope, is constitutional and valid, providing its purview is germane to the title of the original act.
Hagood v. Hutton, 33 Mo. 244.
Van Hook v. Selma, 70 Ala. 361, 45 Am. Rep. 85; Emerich v. Indianapolis, 118 Ind. 279, 20 N. E. 795.
And to condemn property beyond its limits.
3. An amendment to a city charter thereafter, extending or enlarging the right of condemnation, are not fatal if they fail to provide for compensation.
Jennings v. LeRoy, 63 Cal. 397; Warner v. Hennepin County, 9 Minn. 139, Gil. 130; Cherry v. Keyport, 52 N. J. L. 544, 20 Atl. 970; Clarke v. Blackmar, 47 N. Y. 150; Re New York Elev. R. Co. 70 N. Y. 327, Affirming order, 7 Hun, 239; Swikehard v. Michels, 81 Hun, 325, 29 N. Y. Supp. 777, 30 N. Y. Supp. 1135, 8 Misc. 568, 29 N. Y. Supp. 777; Re Sharett's Road, 8 Pa. 89; Smedley v. Erwin, 51 Pa. 445; Wister v. Philadelphia, 6 Legal Gaz. 51, 31 Phila. Leg. Int. 53 Tuttle v. Knox County, 89 Tenn. 157, 14 S. W. 486.
Park ways are incidental and ancillary to
Houghton v. Huron Copper Min. Co. 57 Mich. 547, 24 N. W. 820; Warner v. Gunnison, 2 Colo. App. 430, 31 Pac. 238; Lester v. Jackson, 69 Miss. 887, 11 So. 114; Chambers v. St. Louis, 29 Mo. 543; Newman v. Ashe, 9 Baxt. 380; Hagood v. Hutton, 33 Mo. 244; Thompson v. Moran, 44 Mich. 605, 7 N. W. 180; Warner v. Gunnison, 2 Colo. App. 430, 31 Pac. 238.
Where there is a general law in existother ence, giving to municipalities or bodies the right of condemnation, and providing for compensation to the landowners whose property is taken, special acts passed
parks, and an essential part of the im-, the powers conferred by said act, the city provement of parks and a park system.
Re New York, 34 Hun, 444, Affirmed in 99 N. Y. 569, 2 N. E. 642; People ex rel. Seaver v. Green, 52 How. Pr. 440; Re | Farland, and J. R. Godwin had been legal
was authorized to establish by ordinance a park commission, composed of three members, and that Robert Galloway, L. B. Mc
Prospect Park & C. I. R. Co. 67 N. Y. 371; Luehrman v. Taxing District, 2 Lea, 430; Brandon v. State, 16 Ind. 197; Ex parte Griffin, 88 Tenn. 548, 13 S. W. 75; Cannon v. Mathes, 8 Heisk. 523; Sutherland, Stat. Constr. § 93; State v. Yardley, 95 Tenn. 555, 34 L. R. A. 656, 32 S. W. 481; Illinois C. R. Co. v. Crider, 91 Tenn. 494, 19 S. W. 618.
ly elected, and now constitute said park commission. It is further alleged that on the 5th of November, 1903, an ordinance was passed authorizing and directing the park commissioners to obtain, establish, and construct a system of park ways in and around the city of Memphis; that, under and by virtue of this ordinance, the park commission did, on the 9th day of January, 1904, establish said park way so as to begin at Overton park, and run thence south along and with Trezevant avenue to a point 700 feet south of the right of way of the Southern Railway Company, thence west to Cooper avenue, thence south along Cooper avenue to Lamar Boulevard, and thence in a westerly and southwesterly direction to Kerr avenue, and along and with Kerr avenue to Riverside Park and the Mississippi river; said park way to be 200 feet in width as far south as Union avenue, and for the balance of the distance to average 150 feet in width. It is then alleged that, in order to construct this park way or boulevard, a certain portion of the property of defendant is required, and that the object of this petition is to acquire the same by condemnation proceedings.
Land taken by a city for purposes of parks, park ways, or for places of recreation and amusement for the public, and advantageous to the public for recreation and health, is taken for public use; and the power of eminent domain extends thereto.
United States v. Cooper, 9 Mackey, 104; Shoemaker v United States, 147 U. S. 282, 37 L. ed. 170, 13 Sup. Ct. Rep. 361; United States v. Gettysburg Electric R. Co. 160 U. S. 668, 40 L. ed. 576, 16 Sup. Ct. Rep. 427; Rowan v. Portland, 8 B. Mon. 232; County Court v. Griswold, 58 Mo. 175; Re Central Park, 63 Barb. 282; 1 Lewis, Em. Dom. § 175, p. 443; West Chicago Park v. Western U. Teleg. Co. 103 Ill. 33; Higginson v. Nahant, 11 Allen, 530; Re Bush wick Ave. 48 Barb. 9; Re Niagara Falls & Whirlpool R. Co. 108 N. Y. 375, 15 N. E. 429; Brooklyn Park v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70; Re New York, 99 N. Y. 569, 2 N. E. 642; 10 Am. & Eng. Enc. Law, 2d ed. pp. 1084,1085; People ex rel. Wilson v. Salomon, 51 Ill. 37; Foster v. Park Comrs. 133 Mass. 321; State Park v. Henry, 38 Minn. 266, 36 N. W. 874; Re Central Park, 50 N. Y. 493; Re Washing ton Park, 52 N. Y. 137; Root's Case, 77 Pa. 276. Messrs. Randolph & Randolph for ap- of said land, and in her answer relied upon pellee. the following grounds, viz: (1) Because the city of Memphis is attempting to conMcAlister, J., delivered the opinion of demn property for public uses situated outthe court: side of its corporate limits, and that any act authorizing the exercise of the power to condemn land lying wholly without its corporate limits is unconstitutional and void. (2) That the said chapter 142, p. 250, of the Acts of 1899, is in violation of article 1, § 21, of the Constitution of Tennessee, and is also in violation of the 14th Amendment of the Constitution of the United States, because it does not provide for just compensation to be paid to the owner of the property sought to be condemned, and that the mode and manner of ascertaining such compensation, and enforcing the same, is not fixed and established in said act. (3) That it violates article 2, § 17, of the Constitution of Ten
This record presents a petition exhibited in the circuit court of Shelby county, ask ing the condemnation of a certain strip of land, 900 feet long and 50 feet wide, belonging to the defendant, for the purpose of extending a boulevard along the west side of Trezevant avenue. It is alleged therein that, under and by virtue of chapter 142, p. | 250, of the Acts of 1899, the city of Memphis is empowered to purchase by private negotiation, or acquire by condemnation, a park way for the purpose of connecting the city with any parks that might be established, or for the purpose of connecting the parks with each other. It is further alleged that, for the purpose of carrying out
The prayer of the petition is that the city of Memphis be decreed an easement or right of way to the strip of land described, and that the court issue its writ of inquiry of damages to the sheriff, commanding him to summon a jury, to be named by the court, to inquire into and assess the damages of the defendant by reason of the taking of the strip of land described.
The defendant resisted the condemnation
nessee, because the body of the act provides | 000, bearing a rate of interest not exceedfor subject-matters outside of the title, and not in any sense germane to the subject suggested by it.
ing 5 per cent maturing at such time, callable in such manner as the legislative coun cil may determine, and payable in lawful money of the United States of America," etc.
The cause was heard at the March term, 1904, by the Honorable J. P. Young, who was of opinion that the act of 1899 was unconstitutional, because the subjects of the act are not embraced in the title; and further, that said act makes no provision for compensating the owners of property so condemned for a park boulevard; and further, that such a boulevard connecting the parks is public convenience, and not a public necessity. The court thereupon dismissed the petition. The city appealed, and has assigned errors.
Chapter 142, pp. 250-252, Acts 1899, § 1, provides as follows: "The parks, or lands to be used for park purposes, may be purchased either by private negotiation or by condemnation, as hereinbefore provided, as may be determined by the legislative council. If the parks, or land for park purposes, be purchased by private negotiation, the negotiation shall be conducted by such member or members of the legislative council as shall be designated by said council; but no purchase shall be effected until the same has the approval of the majority of the legislative council. And said parks, or land for park purposes, may be purchased either within or without the limits of such taxing districts or cities, but not more than 10 miles from the nearest point on the limits of such taxing districts or cities, as such limits may be at the time of such purchase."
Section 2: "Any such taxing district or city may condemn parks or land for park purposes under the power of eminent domain, and such taxing districts and cities are hereby expressly given the power to condemn, for park purposes, the yards, switches, tracks, the depot and property of any character, of any railroad company, and also the property of any manufacturing establishment, and also the property of any other person or corporation either within or without the limits of said taxing district or city, but not over 10 miles beyond the nearest point in said limits as such limits may be at the time of such condemnation; and the proceedings for the exercise of this power of condemnation shall | be the same as that now provided by law for the taking of private property for public uses."
Section 3: "That, in order to raise the means necessary to purchase or condemn parks, or land for park purposes, such taxing districts or cities are hereby authorized and empowered to issue their coupon bonds to any amount not exceeding $250,
Section 4: "That such taxing district or city is authorized and empowered to levy a special park tax only so long as said bonds shall remain outstanding," etc.
Section 5: That such taxing district or city shall have the power to purchase by private negotiation, or acquire by condemnation, a park or park ways, either running from said taxing district or city to any such park, or running between and connecting such parks; and such taxing district or city may purchase or condemn such park ways either within or without the limits of such taxing district or city, but in no case more than 10 miles beyond the nearest point of the limits of such taxing district or city as the same may be at the date of such purchase or condemnation; and the proceeds of the bonds aforesaid may be used for improving or maintaining such park ways."
Section 6 provides for the creation of a park commission by the legislative council of such taxing district, to be composed of three members, who shall be elected by said legislative council.
Section 7 provides that the legislative council of such taxing district or city shall have full and ample power to establish, by ordinance, rules and regulations to govern said park commission, and to govern the employment and discharge of sucn employees, and to fix the official bonds and the compensation of such park commissioners and employees.
The first objection to this act is that it undertakes to permit the municipal authorities to condemn land for parks and for the building of park ways situated beyond the municipal limits; and it is insisted that the legislature has no power to delegate such authority.
An examination of the act of 1899 will show that it is an amendment to chapter 11, p. 15, of the Acts of 1879, constituting the city of Memphis a taxing district, and providing a local government for the same.
Section 20 of chapter 11, p. 28, of the Acts of 1879, provides: "That private property within the taxing district may be taken for public use in the manner now provided by law for the application of private property to public use."
It is insisted that, under the original charter just recited, conferring upon the city of Memphis the right of eminent domain, the exercise of that power was expressly limited to property lying within
the corporate limits. But it is manifest | withstanding the fact that it was situated that the act of 1899 has enlarged the ex- beyond the corporate limits of Detroit. ercise of the right of eminent domain by Warner v. Gunnison, 2 Colo. App. 430, 31 the corporate authorities of the city of Pac. 238; Dill. Mun. Corp. 3d ed. §§ 146, Memphis so as to permit property situated 597 et seq.; Houghton v. Huron Copper beyond the corporate limits to be appro- Min. Co. 57 Mich. 547, 24 N. W. 820; Lespriated and condemned for the purpose of ter v. Jackson, 69 Miss. 887, 11 So. 114; establishing parks, and connecting them by Chambers v. St. Louis, 29 Mo. 543; Hagood boulevards with the city and with each v. Hutton, 33 Mo. 244. other.
It will be observed that, under the act of 1899, the city is authorized to exercise the right of eminent domain in condemnation of property either for parks, or park purposes, or park ways, within a limit of 10 miles from the nearest point of said taxing district or city. It was argued at the bar that it would be a great stretch of power on the part of the legislature to permit the municipal corporation to acquire land for public purposes in remote portions of the state; but, as already seen, the power conferred by the act of 1899 upon the municipality of Memphis must be exercised on land situated adjacent or contiguous to the corporate limits, and within a distance of 10 miles from its nearest point.
Moreover, it appears from the record that the boulevard sought to be condemned is at all points within 1 mile of the corporate limits of the city of Memphis.
The next objection is that the condemnation of the land of the defendant is not a public necessity, but merely a public convenience; and, for that reason, the act of the legislature, so far as it attempts to authorize such appropriation, is unconstitutional and void. Mr. Lewis, in his work on Eminent Domain (vol. 1, § 175), says: "Pleasure and recreation are not only essential to health, but tend to the improvement of character. No better instance of a public use can be given than that of a public square or park in the midst of, or convenient to, a dense population. Private In Newman v. Ashe, 9 Baxt. 380, it was property may be taken for the purpose of held that, while the charter of the city of securing such means of recreation and Knoxville did not in express terms confer health. A park is a public use, though not the power to purchase and hold real es- located in a city or town, but only in the tate outside of the corporate limits for vicinity of it. Land may be taken on each the purpose of constructing waterworks, it side of a highway to be kept open for courtdid so by necessary implication. The power yards and ornament. Highways may be to construct waterworks-a legitimate cor- laid out for the purpose of affording acporate purpose is expressly given, and the cess to a position which commands a fine authority is given to the mayor and alder-view, or for accommodating pleasure drivmen to protect from injury, by adequate ing. The taking of a large tract in the penalties, the pipes, hydrants, or fixtures, Adirondacks for a state park was held buildings, or improvements, belonging to, to be for a public use. So, limiting the or in any way pertaining to, said water- height of buildings around a public park works, whether within or without the lim- or square." its of said corporation.
It will be observed, the author states that a park is a public use, though not located in a city or town, but only in the vicinity of it; and, further, that land may be taken for driveways, or for accommodating pleasure
It is insisted, moreover, on behalf of appellee, that there is a distinction between a grant of authority from the legislature to a municipal corporation to exercise the right of eminent domain in the condemnation of property situated beyond the corporate limits for the establishment of a park, and the grant of such authority for the building of a boulevard connecting such parks. The position is that, while a park may be a matter of public necessity to the inhabitants of a crowded city, as a means of furnishing them healthful recreation, yet no such necessity exists for the condemnation of land for the building of a boulevard merely to connect such parks.
The record discloses that the boulevard in question is to be about 3 miles long, entirely without the city limits, and at its narrowest point 150 feet wide, and at its greatest 200 feet. It is shown that the route to be followed by the park way is over country roads that are now in existence, and the land of defendant is sought for the purpose of widening the roads as they now exist. It is said the entire length of the proposed park way now forms one continuous public road extending between the two parks; and, while it is admitted that a wide road connecting them is a matter of great public convenience, it is not a matter of public necessity, and hence is not subject to be taken in the exercise of the city's right of eminent domain.
In Thompson v. Moran, 44 Mich. 605, 7 N. W. 180, an act of the egislature giving the city the right to purchase, improve, and control Belle Isle park was sustained, not
driving. In the case of West Chicago Park | under the power of eminent domain, not v. Western U. Teleg. Co. 103 Ill. 33, it was held that land might be condemned for building a boulevard running from the south end of Douglas park to the Illinois & Michigan Canal.
only for public parks in cities, but it may be condemned in a county for the inhabitants of the county." 10 Am. & Eng. Enc. Law, 2d ed. pp. 1084, 1085; Re Central Park, 63 Barb. 282; People ex rel. Wilson v. Sal
"Land taken in a city for public parks and squares advantageous to the public for recreation, health, or business is taken for a public use, and the power of eminent domain extends thereto." Shoemaker v. United States, 147 U. S. 282, 37 L. ed. 170, 13 Sup. Ct. Rep. 361.
"A public park is a public use." United omon, 51 Ill. 37; Foster v. Park Comrs. 133 States v. Cooper, 9 Mackey, 104. Mass. 321; State Park v. Henry, 38 Minn. 266, 36 N. W. 874; Brooklyn Park v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70; Re Central Park, 50 N. Y. 493; Re Washington Park, 52 N. Y. 137; Root's Case, 77 Pa. 276; County Court v. Griswold, 58 Mo. 175.
"The purpose of preserving and marking on the site of the battle of Gettysburg the positions occupied by the different military organizations at that battle is a public use or purpose for which Congress may authorize the condemnation of the necessary land." United States v. Gettysburg Electric R. Co. 160 U. S. 668, 40 L. ed. 576, 16 Sup. Ct. Rep.
"The right of the public at large to acquire easements over the lands of individuals is not confined to public highways, but extends to many other easements and uses." such as public parks and grounds. Rowan v. Portland, 8 B. Mon. 232.
The legislature, in 1874, authorized the appropriation of land for a public park for the benefit of the inhabitants of St. Louis county located outside the city. Held to be a public use, although chiefly beneficial to the citizens. County Court v. Griswold, 58
Land taken in a city for public parks and squares by authority of law, whether advantageous to the public for recreation, health, or business, is taken for a public use; and it is no valid ground of objection to the confirmation of a report of commissioners for opening a new park that the lands embraced in such park are not all contiguous, and that there are intervening blocks and spaces not taken, where such intervening spaces are not so large as to interfere with the integrity or continuity of the plan, or the equalizing of the assessments.
They contribute to the health and enjoy ment of the people, and are laid out with drives and ways for public use. The proceedings in the case of Higginson v. Nahant, 11 Allen, 530, and Mt. Washington Road Co.'s Petition, 35 N. H. 134 were justified on the ground that they were public highways in the ordinary sense, although primarily intended as pleasure drives. New York, 99 N. Y. 569, 2 N. E. 642.
"Land taken in a city for a public park whether advantageous to the public for recreation, health, or business, is taken for a public use. And the land may be condemned
It is next objected that the act of 1899 makes no provision for compensation to the owner of land condemned for parks or park purposes. In Watauga Water Co. v. Scott, 11i Tenn. 321, 76 S. W. 839. it was said by this court, viz.: "It is a fundamental principle of the law of eminent domain and the taking of property for public use that it can only be done by making just compensation to the person whose property is taken for its reasonable value, and any legislation which confers the right of eminent domain can only be valid upon condition that such compensation is provided for, and the mode and manner of ascertaining and enforcing the same is fixed and established."
Article 1, § 21, of the Constitution, provides, viz.: Private property shall not be taken or applied to public use without just compensation being made therefor.
It is insisted that this indispensable requirement to the exercise of eminent domain for any purpose has not been observed by this act. It is said, however, that the act of 1899 is only an amendment to chapter 11, p. 28, Acts 1879, the original charter of Memphis, which does provide, viz.: "That the private property within the taxing district may be taken for public use in the manner now provided by law for the application of private property to public use."
It will be remarked that, while the right to take property for public use under the act of 1879 is confined to property situated within the taxing district, the amendatory act of 1899 extends the right to be exercised over property located beyond the limits of the taxing district, and within 10 miles of its nearest point. It is in this respect only that the original act is amended. It will be noticed that the original act of 1879 does not in terms provide for compensation to the landowner, yet it says it may be taken for public use in the manner now provided by law, etc.
Now it is insisted that § 20, chap. 11, p. 28, of the Acts of 1879, just quoted, incorporates into the taxing district charter the general law upon the subject of eminent domain, and, among other provisions, the obligation of just compensation to the owner.