Cox v. State

399 S.W.2d 776, 217 Tenn. 644, 21 McCanless 644, 1965 Tenn. LEXIS 552
CourtTennessee Supreme Court
DecidedMarch 4, 1965
StatusPublished
Cited by31 cases

This text of 399 S.W.2d 776 (Cox v. State) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. State, 399 S.W.2d 776, 217 Tenn. 644, 21 McCanless 644, 1965 Tenn. LEXIS 552 (Tenn. 1965).

Opinions

[646]*646Mb. Justice Holmes

delivered the opinion of the Court.

This is an appeal by the complainants from a decree of the Chancery Court sustaining a demurrer filed on behalf of the defendants, State of Tennessee, Tennessee Game and Fish Commission, George F. MeCanless, Attorney General of the State of Tennessee, Fred W. Stanberry, Director of the Tennessee Game and Fish Commission, and Donald M. McSween, Commissioner of the Tennessee Department of Commerce and Conservation.

The original bill, which was filed December 12, 1963, alleges that the complainants are the owners of certain described lands located in Obion County, Tennessee, having acquired title to same by general warranty deed on July 18, 1861. It is alleged- that complainants’ grantor acquired title to the lands by decree of the Chancery Court of Obion County, dated October 6,1958, confirming a tax sale of the property for the sum of $201.58, which decree is duly recorded in the Register’s Office of Obion County. The bill alleges that all taxes on this property for the years 1956-1963 have been paid by the complainants or their grantor. The bill further alleges that [647]*647on June 6, 1962, the defendants, W. H. Hines and wife and Maurice Finch and wife, executed a deed purporting to convey this property to the State of Tennessee for and on behalf of the State Game and Fish Commission for a consideration of $11,725.00.

The bill prays that the complainants he adjudged the owners of the described tract of land, that the deed from Hines and wife and Finch and wife to the State for the use and benefit of the Tennessee Game and Fish Commission be set aside and held for naught and removed as a cloud upon complainants’ title. The bill prays, in the alternative, that complainants recover damages from defendants to the extent of the consideration paid by the State to its grantors.

The demurrer of the State and its officials, who are sued in their official capacities, is based upon the sovereign immunity of the State. The demurrer states:

“This suit may not be prosecuted against the State of Tennessee or any of its officers named as co-defendants because the State has not authorized it to be maintained nor has the Legislature excepted such suit from the application of either Section 17 of Article I of the Constitution of Tennessee or Section 20-1702 of Tennessee Code Annotated.”

The State Game and Fish Commission, by T.C.A. sec. 51-107, is authorized “[t]o acquire by purchase, condemnation, lease, agreement, gift or devise, lands or water” suitable for carrying out the purposes for which the Tennessee Game and Fish Commission was created. (Emphasis supplied)

By Article I, Section 17 of the Tennessee Constitution;

[648]*648“Suits may be brought against the State in such manner and such courts as the Legislature may be law-direct. ’ ’

T.C.A. sec. 20-1702 provides:

“No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds, or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state.”

A suit against a state official in his official capacity is a “suit against the state.” Brooksbank v. Leech, 206 Tenn. 176, 332 S.W.2d 210, A. L. Kornman Co. v. Moulton, 210 Tenn. 491, 360 S.W.2d 30.

In Fritts v Leech, 201 Tenn. 18, 296 S.W.2d 834, a bill in chancery was filed alleging that the Department of Highways and Public Works of the State, acting through its representatives, asserted title to certain property belonging to the complainant and took over the property without obtaining any deed and without exercising its light of condemnation. The bill in that case prayed for a decree declaring the complainant to be the owner of the property and prayed for damages and for an injunction enjoining defendant from entering upon the land. Later ihe bill was amended by striking out the prayer for damages and inserting a prayer for writ of mandamus to put complainant in possession of his property or to require defendants to take the property by eminent 'domain. In affirming the action of the Chancellor in sustaining a demurrer to the bill in Fritts, the Court stated:

[649]*649‘ ‘ Taking the allegations of the bill as amended as true, as we are required to do, the bill states in so many words, that both parties, complainant and defendants, are asserting title to said piece of land and that the State is in possession thereof. It is evident, therefore, that the suit in this aspect is an ejectment suit. In the other aspect the suit is in the alternative to require the Highway Department to exercise the power of eminent domain. ’ ’ 201 Tenn. at 21, 296 S.W.2d at 836.

The Court, in Fritts, held that the suit in the aspect of an ejectment suit was one to reach the property of the State in violation of T.C.A. sec. 20-1702, and further held that the suit in the aspect of one to require the State-, to exercise the power of eminent domain could not be maintained because complainant had a plain and adequate remedy at law under T.C.A. sec. 23-1423. This Code Section is frequently referred to as the “reverse condemnation statute ’ ’. It provides:

T.C.A. 23-1423. “Action initiated by owner. — If, however, such person or company has actually take (sic) possession of such land, occupying it for the purpose of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as herein-before provided; or he may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest.”

In Fritts, the Court further pointed out that this Court, in Stubblefield v. Warren County, 170 Tenn. 211, 93 S.W.2d 1269, held that, when the Highway Department took possession of plaintiff’s land without condemnation [650]*650and without acquiring title thereto, the property owner’s only remedy was that provided by the above quoted Code Section.

In a number of cases it has been held that the reverse condemnation statute, now T.C.A. sec. 23-1423, is the exclusive remedy of a property owner whose land has been occupied for purposes of internal improvement by a public service corporation. Campbell v. Lewisburg S N. R. R. Co., 160 Tenn. 477, 491, 492, 26 S.W.2d 141, and cases cited therein. In Campbell, the railroad had purchased the property in question from one who owned only a life estate.

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Cite This Page — Counsel Stack

Bluebook (online)
399 S.W.2d 776, 217 Tenn. 644, 21 McCanless 644, 1965 Tenn. LEXIS 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-state-tenn-1965.