
    John Colcough v. The Nashville and Northwestern Railroad Company.
    1. Bailkoad Company. Statutory remedy exclusive. The statutory remedy given to land.proprietors, for land taken for the construction of railways, is, in general, exclusive of all other remedies, and not merely cumulative.
    2. Same. Same. Damages. The remedy prescribed in the charter of the Northwestern Bailroad Company, embraces not only just compensation for the land taken, but likewise all such incidental loss, or damage, as must necessarily or reasonably result from the appropriation of the land and construction of the road in the manner authorized by the charter.
    3. Same. Same. Same. Confined to the. land taken. This statutory remedy is confined to the land taken, and the damages incident thereto. It does not extend to, and embrace damage or injuries to adjoining land, not authorized by the charter to be taken; nor to damages resulting from carelessness, negligence, or wilful trespasses in the execution of the work.
    
      4. Same. Same. Remedy not limited to the owner of the fee This statutory remedy is not limited to the owner of the fee. A life interest, or a term of years may he carved out of the fee; and in such case the tenant for life, or lessee, as well as the remainderman, or 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.
    5. Same. Practice. Proceeding may he joint or several. The persons vested with the several interests which constitute the entire estate, may j oin in a proceeding under the statute to obtain compensation; or, as they have several interests, may proceed separately. In either mode of proceeding, the compensation for the entire damage must be apportioned according to the injury to their respective interests.
    FROM DAVIDSON.
    This cause was tried upon demurrer, at the May Term, 1858, Baxtbe, J., presiding. The demurrer being sustained, the plaintiff appealed.
    Woods & MeRbitt, for the plaintiff.
    The plaintiff’s right to compensation is admitted by the argument. The question is how it is to be enforced. If the act of incorporation had provided for the assessment of damages, it is admitted, that under our decisions, the mode pointed out by the State must be followed to the exclusion of the common law remedy. But it is insisted for the plaintiff that no mode is pointed out by the statute for anything but the freehold; (see Charter, Acts 1851-52, pp. 88, 89,) and, therefore, either the act is unconstitutional, as failing to provide for the payment of the “just compensation,” as the New York decisions and many in the New England States decide, or else the party is to he permitted to look to the general principles of the common law for the enforcement of an admitted right. If this he so, assumpsit is the only remedy, as the company in the appropriation of this land was in the lawful exercise of a right delegated to it hy the Legislature, and was in no sense a trespasser or wrong-doer. Woodfolh v. Nashville and Chattanooga Railroad Company, 2 Swan. The origin and history of the action of. assumpsit show that this case is embraced in its principles, and is a fit one for their application.
    Ewing & CoopeR, for the defendant.
    The remedy given to persons for damages arising from the seizure of their land hy the railroad is very hroad, and, as explained in the case of WoodfoW r. Nashville and Chattanooga Railroad Company, reported» in 2 Swan, —, embraces the value of the land seized hy the road, as well as the incidental damages' to the remaining portion. The Legislature evidently, by the provisions of that act, intended to give a full remedy to all owners of land who were injured hy a proper and legitimate construction of the road, and, at the same time, give a right of way in fee simple to the railroad company when the damages were paid. If lessees for years are not embraced, then the railroad company could not legitimately seize land thus held — they can get no title to such land hy any proceeding .under their charter, and their whole enterprize would be balked. We insist, o^,th<r contrary, that the words “ owners of land ” used in the statute, means all owners, whether in fee, for life or for years. That in a proceeding for damages by a seizure of land, all of these owners must, or ■ at least may be included in the petition for relief, and separate damages given to each by the jury in their report, or they may be apportioned by the Court on final hearing.
    Such is the construction' given to similar statutes in other States of the Union. . 5 Metcalf Rep. —; 22 Penn. Rep., 29; 15 Pick., 198; 2 Sandford, 506.
    The Courts of other States of the Union have also decided that damages similar to those charged in this declaration are included under the word “owners” given in our statutes. Redfield on_ Railways, p. 180 and notes. It is hardly necessary to affirm, that if this plaintiff has any remedy given him under the charter of incorporation to defendants, that this remedy is necessarily exclusive, and that no other could be pursued.
   McKinney, J.,

delivered the opinion of the Court.

This was an action of assumpsit. The case comes up upon demurrer to the declaration, which was sustained in the Court below.

The gravamen of the action, as alleged in the declaration, and in argument, is: That the plaintiff was seized, as owner for an unexpired term of years, of a lot of ground in West Nashville, which was taken by the defendant, under the authority of its charter, as part of the road bed; and that the defendant, in the proper construction of the road, and in the exercise proper and rightful power and authority under the charter, pulled down and removed the fences and part of the dwelling-house which had been erected and were standing upon said lot; and likewise used and destroyed the corn, potatoes, &c., growing thereon.

The supposed foundation- of the action is an implied promise on the part of the company to make reasonable compensation to the plaintiff for the injuries sustained by him.

The current of authority - seems to be, that the statutory remedy given to land proprietors, for land taken for the construction of railways, is to be regarded, in general, as exclusive of all other remedies, and not merely cumulative. Redfield on Railways, p. 178.

The remedy prescribed in the particular charter under consideration, embraces not only “-just compensation” for the land taken, but likewise for all such incidental loss or damage as must necessarily or reasonably result from the appropriation of the land and construction of the road in the manner - authorized 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 damages; and as to these, in general, the assessment will be conclusive.

This statutory remedy does not, however, contemplate or extend to damage or injuries .to adjoining land, not authorized by the charter, nor to damages resulting from carelessness, negligence, or wilful trespasses in the execution of the work.

The plaintiff’s counsel does not controvert the general principle that the statutory remedy is exclusive. But the argument assumes that this remedy is confined to the owner of the fee; and that, consequently, the owner of a less interest, as a tenant for life or years, is without remedy, unless permitted to resort to a common law action adapted to the nature of the case; and that as the injuries complained of by the plaintiff were occasioned by the defendant, not by any wrongful act, but in the exercise of a lawful right conferred by its charter, the law in such case will imply a promise to compensate the plaintiff.

The fallacy of the argument lies in the assumption that the remedy given by the statute is limited to the absolute owner of the fee. This is not so. The word “ owner,” as used in the charter, is not to be taken in any such restricted sense. The ownership of the estate, so to speak, may be severed. A life interest, or a term of years, may be carved out of the fee. And in such case the tenant for life or lessee, as well as the re-mainderman or 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.

It would seem that, in such cases, the persons vested with the several interests which constitute the entire estate, might join in a proceeding under the statute to obtain- -compensation; or, as 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 the demurrer was properly sustained, and the judgment will be affirmed.  