Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-02-25
NEW COUNTIES.
Important OpInion by the Supreme
Court

important points ID relation TO the forming
OF new counties, the conditions requisite
therefor, and the method of the survey of
territory. Several litigated cases are pend
ing in various courts in Tennessee. The
case was argued for Smith county by Col.
James w. McHenry and Col. w. H. De-
Witt; for Macon county, Messrs. Alexander
g. Bordark, and Messrs. Head & Mcdonnell
for Trousdale county. The following is
the substance of the opinion:
Art. 10 sec. 4 of the Constitution Or
dams that 'New counties may be estab-
lished by the legislature" etc. After a
general provision, there is among excep-
lions the following: New counties may be
established by the present or any succeed
ing Legislature out ofthe following terri ry:
out of fraction of Sumner, Macon and
Smith counties, but NO new line of such
new county shall approach the courthouse
of Sumner, and Smith counties nearer than
ten miles, nor include any part of Macon
county lying within nine and one-half miles
of the courthouse of said county; nor shall
more than twenty square miles of Macon
county, nor any part of Sumner county
lying due West of the Western boundary
line of Macon county be taken in the for
mstion of said new county"
On the 21st of June, 1870, the Legista-
tue passed an act establishing the county of
Trousdale out of fractions Of the counties
of Sumner, Macon, Smith and Wilson,
around the town of Huntsville, defining the
boundaries. Chapter ~, act. 2, Session
1869-70.
1t is insisted this creating statute vio-
lates the clause of the Constitution already
quoted, in taking more of the territory of
Smith and Macon counties than is granted.
In discussing and determining the ques-
| ton, we are to be understood as treating it
as political question and not as one grow
| ing out of contracts between individuals.
We are restricted to public policy, tested
| by the times in which we live.
With the restrictions indicated, as the
reasoning is sound and the authorities con-
| elusive, we quote and adopt the opinion of
Baron Martin in the case o. Moufet VS..
Cole, determined in the English Court of
Exchecquer in November, 1871, as follows:
| The question in the case is, in its terms,
very simple. The plaintiff had bought from
the defendant public house called "The
| Lord Holland" and the defendant GOV
enanted that he would not carry on the
business of publican within the distance
OF one-half mile of the premises called "The
Lord Holland" and the question is how
| the distance of half mile is to be meas
| ured. The plaintiff contends that the true
| mode of measurement, that is the true con-
| struction Of the language used, is that a
| circle of half mile radius is to be drawn
| around "The Lord Holland" and that
| if the defendant carries on the bust
ness of publican within this space, then
| he has broken the contract. The defend
ant, on the other hand, contends that the
| true construction of the covenant is that If
1 there be half mile between 'The Lord
| Holland" and the house where the defend
| ant carries on business, measured by the
nearest way of access, there is no breach of
| the covenant.
Now, If the question was new and had
never before arisen, l think the plaintiff s
construction is right. Every written docu-
ment is to be construed according to the
ordinary, natural and grammatical mean
ing of the language used; and when man
covenants that he will not do an act within
certain distance of a given spot, it seems
| to me that the true mode of determining
| the distance is to describe circle with a
radius of the distance around the spot, and
| that if the act be done within the circum-
/ scribed distance the covenant is broken,
and that it is al unnatural and unreasona-
| BILE construction to say that the distance is
| to be measured by the then existing t1dy of
access.
Supposing the ''Lord Holland" was on
the bank of river fifty yards wide, and
that the bridge across the river was upwards
| of quarter of mile from the "L0rd Hol-
land" their construction of the covenant
would enable the covenanter to ses up a
| public house on.the opposite bank within
| fifty Yards of the "Lord Holland" This,
as it seems to me, would be in direct con-
travention Of both the words and spirit Of
the covenant.
Again, surprising that by the existing
mode Of access, the distance was upward Of
half mile, but by a new road the distance
was reduced to less than half mile, there
would be no breach Of the Covenant until
the new road was made, but, there
would be afterwards. / cannot but think
that such construction of the covenant
would be unreasonable, giving one opera
ton in one state of things and another in
another; and if had to decide the question
independently of all authority, would be
of opinion that the plaintiffs construction
of the contract would be true one, and
the more consistent with reason and GER
tainty.
But in my judgment the autnori-
ties are conclusive.
different authorities here given, all hold
ing to horizontal measurement
The question is new in this country,
made perhaps for the first time in this
case.
From the opinion quoted, Clearly,
B., dissenting, taking the opinion of the
court, and tempering it with the dissentin g
opinion, we think it peculiarly Applicable to
the case at bar.
The dissenting opinion takes a distinc-
ton flor which many good reas ons are Civ
en) between an act of Parliament and an
agreement between private parties. In
crticizing the cases cited, Clearly, B., says:
In Stokes VS.. Grissell, which was pressed on
behalf of defendant, the question was, how
the distance of twenty miles mentioned in
an act of Parliament was to be measured
and the case has no bearing upon the con-
sIuction of an agreement like the present,
when the subject matter aud intention of
the parties must be considered"
In commenting on Lake vs.. Butler he
says: "The question was the same as in
Stokes vs., Grissell, viz: the measurement of
twenty miles mentioned in 9!and 10 Vic. G.
95, and the court adopted the views ex-
pressed in the former case; but there is
nothing in the judgment indicating an opin-
ion in favor of the straight line rule in such
case as the present" ....... II ...
In noticing Junel VS.. Stead, he says: The
question arose upon turnpike act, which
provided that no toll-gate should be erected
within three miles of another toll-gate, and
all that was decided was, that the general
rule should be adhered to, that when in an
act of Parliament distance is mentioned
generally, without any other guide, the
straight line rule is to be adopted. This is
one of the cases in which Lord Campbell
saws: That the distance is to be measured
by a straight line on horizontal plane.
This measurement of distance on hori-
zoptal plane is proper mode of measure
ment when you are laying down an arbitra-
nv rule to determine whether a particular
case comes within an act of Parliament or
not. there being no question of conduct and
of liability by reason thereof, but where the
whole question arises upon the conduct Of
the parties, such a rule it is submitted is
wholly inapplicable, etc."
From these extracts we see there was no
difference in opinion in the application of
the straight line rule in construction of acts
of Parliament, and thstth whole difference
is in anpIvinp it to contracts between indi-