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Lea v. Louisville & N. R. Co.

LEA V. LOUISVILLE & N. R. Co. et al.

(Nashville. December Term, 1915.)

1. EMINENT DOMAIN. Highways. Use for other public pur poses. Underground pipes.

Laying water pipes under a county highway creates an additional servitude upon the fee interest, for which the abutting owner may recover, notwithstanding the county has consented to such action so far as its easement in the surface is concerned. (Post, pp. 568-571.)

Acts cited and construed: Acts 1907, ch. 254.

2. CONSTITUTIONAL LAW.. Eminent domain. Class legislation. Discrimination against particular corporations.

Acts 1907, ch. 254, authorizing any railroad company, now or hereafter owning or operating a railroad to condemn for reservoir purposes, etc., does not violate Const. art. 11, sec. 8, or Const. U. S. Amend. 14, sec. 1, prohibiting class legislation, although it does not confer the same right upon new railroad companies until they own or operate a railroad. (Post, p. 571.)

Cases cited and approved: Stratton v. Morris, 89 Tenn., 497; Dugger v. Ins. Co., 95 Tenn., 245; Harbison v. Iron Co., 103 Tenn., 421; Condon v. Maloney, 108 Tenn., 82; Scott v. Marley. 124 Tenn., 388.

Constitution cited and construed:

Art. 11, sec. 8.

3. EMINENT DOMAIN. Extent of power. Statutory construction. Under Acts 1907, ch. 254, authorizing a railroad to condemn a pipe line between a running stream and its reservoir or tanks,

a pipe line may be condemned between a reservoir formed by damming a running stream and the railroad's tanks. (Post, p. 571.)

4. EMINENT DOMAIN. Proceedings to take. Offenses. Threatened misuser.

Where a railroad company has been granted eminent domain

power for pipe line purposes, an owner cannot defeat con

Lea v. Louisville & N. R. Co.

demnation proceedings upon the ground that the railroad intends to divert some of the water to purposes not contem

plated by the statute.

5. EMINENT DOMAIN.

question.

(Post, pp. 571, 572.)
Rights acquired.

Misuser. Who may

Where a railroad has power to condemn for pipe line purposes, only the State may question its diversion of the water to purposes not contemplated by the statute. (Post, pp. 571, 572.)` Cases cited and approved: Barrow v. Turnpike Co., 28 Tenn., 304; Heiskell v. Chickasaw Lodge, 87 Tenn., 668; Railroad Co.

v. Transportation Co., 128 Tenn., 277.

6. EMINENT DOMAIN.

ation.

Nature. Acts constituting. Appropri

Where a pipe line was located along a highway and the pipe laid thereon awaiting the digging of ditches in which it was to be placed, held the abutting owners' fee interest in the highway was taken so as to authorize him to bring suit under Shannon's Code, secs. 1866, 1867. (Post, pp. 573-575.)

Case cited and approved:

Calahan v. Dunn, 78 Cal., 366.

7. INJUNCTION. Dissolution. Dismissal of bill.

There was no error in dismissing a bill upon a hearing to dissolve a preliminary injunction, where the parties treated the cause as if submitted on bill, answer, and proof. (Post, pp. 575, 576.)

8. EMINENT DOMAIN. Remedies of owner.

Injunction. Fail

ure to institute condemnation proceedings. Where defendant railroad company had the right to condemn complainant's fee interest in a highway, and had already taken possession of it, complainant could not enjoin completion of the work, although no condemnation proceedings had been started. (Post, p. 576.)

FROM DAVIDSON.

Appeal from the Chancery Court of Davidson County.-W. C. CHERRY, Special Chancellor.

135 Tenn.-36

Lea v. Louisville & N. R. Co.

E. A. PRICE and PITTS & McCONNICO, for appellant.

KEEBLE & SEAY and F. M. BASS, for appellees.

MR. JUSTICE BUCHANAN delivered the opinion of the Court.

The bill was filed to obtain an injunction restraining the defendant above named, and the Nashville, Chattanooga & St. Louis Railway Company, and the Lewisburg & Northern Railroad Company, from laying a line of water pipe within the limits of Granny White Pike, at any point where the fee in the pike was owned by any one or more of the complainants.

Mrs. Lea owned a tract of land known as "Lealand,” lying to the east of the pike, and her property line extended to the middle of the pike. She also owned an undivided interest in a tract bounding the pike on the west side, and the east line of this tract extended to the middle of the pike. Her co-complainants, Perry and wife, Sawyers and wife, and Uhl and wife, owned separate tracts, bounding the pike on the west side. The east line of these latter tracts extended to the middle of the pike.

The bill also sought to restrain defendants from so erecting or constructing a dam south and southwest of the Lealand tract as to cause any part of that tract to be overflowed by water escaping over the dam.

For some time prior to the fling of the bill the defendant Lewisburg & Northern Railroad Company had been engaged in the construction of a dam located to the

Lea v. Louisville & N. R. Co.

south and southwest of Lealand, and on land owned by said railroad company contiguous to the Lealand tract, the purpose of the company being by means of the dam to make a reservoir or artificial lake. This lake was to cover about eighty-three acres of land. It was to have a capacity sufficient to hold more than 400,000,000 gallons of water. The dam was so planned that it would impound on the eighty-three acres of the company's lands the waters of Otter creek, and its tributaries.

The dam and the several tracts of land already mentioned lie south of the city of Nashville, in Davidson county. The Lewisburg & Northern Railroad Company was, at the same time it was engaged in the construction of the dam, also engaged in the construction of extensive switchyards, known as the "Radnor yards." Located within these yards it had some forty or more miles of railroad tracks, which it had constructed for its railroad purposes. The Radnor yards and the reservoir site were about three miles apart, and the plan of the railroad company was to connect the two by an iron water pipe, and thus supply its tanks in the Radnor yards with water necessary for the operation of these yards, and the various railroad purposes to be there conducted.

The Lewisburg & Northern Railroad Company, having theretofore secured the consent of the county of Davidson so to do, proceeded to take possession of the western margin of the pike, to the extent of going thereon, surveying a line for the laying of its pipe

Lea v. Louisville & N. R. Co.

and distributing the necessary pipe for the construction of the line throughout the entire distance along the pike on each side of which the lands owned by the complainants abutted. And while the railroad company was thus proceeding to connect the reservoir with the Radnor yards by its pipe line, its operations were restrained by service upon it of the injunction in this cause.

The Nashville, Chattanooga & St. Louis Railway Company, by its separate answer, denied all corporate connection either with the building of the dam, or with the laying of the pipe mentioned in the bill, and after the filing of its answer, it appears to have been an entirely inactive party in the cause.

By the joint answer of the other two defendants, the material allegations of the original bill were put at issue. The Lewisburg & Northern Railroad Company, by this answer, assumed the entire responsibility of the building of the dam and the laying down of the pipe line, and the proposed construction thereof. The Louisville and Nashville Railroad Company admitted that it was the owner of more than a majority of the capital stock of the Nashville, Chattanooga & St. Louis Railway Company, and of all the capital stock of the Lewisburg & Northern Railroad Company, except a few shares vested in the officers and directors of the latter company, but the Louisville & Nashville Railroad Company disaffirmed any corporate responsibility for the construction of the reservoir, or the pipe

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