Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-05-01

AeOrFect copy, J. P. CLARK, Clerk. ....N
colcough vs. NssAviiIa & Northwes+a Raro,s oo,,.sv
This was an action Of assumpsit. The casoeoT.s
up upon demurrer to the declaration, which was sus
| tanned in the court below. .,.
The grayeman Of the action, as alleged in the dec
laration and in argument, is that The plainii was
seized as owner, for unexpired term Of years Of
lot Of ground in West Nashville, which was taken
by the defendant under The authority Of its ehsrter
part of the road>bed; and that the defendant in
the proper construction Of the road aud in the
else Of its proper and rghtful power and authority
under the charter, pulled down and removed the
| fences and part of The dwelling house which had
bsen erected and were standing upon said lot; and
likewise destroyed the corn, potatoes, etc, growing
| thereon
The supposed foundation Of the action is an i'm
piled promise on the part Of the Company to make
reasonable compensation to the plaintiff for the in
injuries sustained by him.
The current Of authority seems to be that the
statutory remedy given to land prOpristOrs for land
taken for the construction Of railways is to be
garded in general exclusive Of all other remedies,
and not merely eumuiafive Redfeld on Railways,
p. 173.
The remedy prescribed in the particular charter
under consideration embraces not only " just com
pensstOn' for the land taken, but likewise for sl
such incidental loss or damage as must necessarily
or reasonably result from the appropriation of the
nd and construction Of the road in the manner au-
thOrized by the charter. These are all proper
elements Of the damage to the owner in taking the
land to be considered Of in the assessment of dam
ages; and as to these, in general, the assessment
will be conclusive This statutory remedy does not,
however, contemplate or extend to damsge or iuju-
ries TO sdoiniDg land not authorized by the char
ter: nor 10 damages resulting from carelessaess,
negligence, or Wlful trespssses in the execution of
the work.
The plaintiffs counsel does not conirovert the
general prineipls that the statutory remedy is ex~
elusive. But the argument assumes that this rene
dy is confined to the Of the fee, and that
sequently, the owner Of less interest, as tenant
for life or years, is without remedy, unless permit
ted to reasort to common law action adapted to the
nature Of the case and that the injuries COM
planned Of by the plaintiff are Cccasioned Oy the de>
PENDANT, not by any wrongful act but in the exers
else Of lawful right conferred By its charter, the
law in such viii imply promise to compensate
the plaintiff. The fallsey Of the argument lies in
the assumption that the remedy given by the statute
it limited to the absolute owner Of the fee This is
not So The word ''Owper," used in the charter,
is not to be taken in any such restricted The
ownership ofthe estate, to speak, may be severed.
Hfe-interest, or term of years, may be carved |
out Of the fee And in such case the tenant for life,
or lessee, well as the remainder man lessor is
within the spirit and meaning of the charter; and
they are entitled to recover compensation for the |
damage or injury by them respectively sustained
Il would seem that in such cases, the persons /
vested with the several interests which constitute
the entire estate, might join in proceeding under
the statute to obtain compensation; Or they have
several interests, proceed separately. In either
mode of proceeding, however, the compensation for
the entire damage must be appOrtiOned according
to the injury to their respective interests.
We are Of opinion that tho demurrer was proper
ly sustained, and the judgment will be affirmed.
MoKNEEY.
A correct copy: J. p CLARK Clerk.