1927)).To support their argument that the contract of sale in this case created a fee simple subject to a condition subsequent, buyers rely heavily on the case of East Tennessee and Western North Carolina Railroad Co. v. Gouge, 30 Tenn. App. 40, 203 S.W.2d 170 (Tenn. Ct. App. 1947). In that case, the owners of tract of land brought suit against the railroad company for damage to their land resulting from the railroad's operation of a right of way across the property.
Standard Knitting Mills, Inc. v. Allen, 424 S.W.2d 796, 798-99 (Tenn. 1967); East Tenn. W.N.C. R.R. Co. v.Gouge, 203 S.W.2d 170, 172 (Tenn. 1947). Until such a re-entry is made, "the estate remains as before," with the easement holder continuing to enjoy the rights conferred by the grant.
Such an action is authorized by Section 23-1423 Tenn. Code Ann., wherein it provides "or he may sue for damages in the ordinary way * *" Johnson v. Roane County, 212 Tenn. 433, 370 S.W.2d 496; Duck River, etc. Co. v. Cochrane, 71 Tenn. (3 Lea) 478, 480; Armstrong v. Illinois Central Railroad Co., 153 Tenn. 283, 282 S.W. 382; East Tennessee W.N.C.R. Co. v. Gouge, 30 Tenn. App. 40, 203 S.W.2d 170, cert. den. by Tenn.Sup.Ct. April 12, 1947, rehearing den. June 26, 1947; Atlanta, K N Ry. Co. v. Southern Ry. Co., 131 F. 657, C.A.6, cert. den. 195 U.S. 634, 25 S.Ct. 791, 49 L.Ed. 354. We agree with the district judge in dissolving the preliminary injunction.
The Court's decision in Duck River has been consistently applied. See e.g., Southern Railway Company v. Jennings, 130 Tenn. 450, 171 S.W. 82 (1914); Hopper v. Davidson County, 206 Tenn. 393, 333 S.W.2d 917 (1960); Scott v. Roane County, 478 S.W.2d 886 (Tenn. 1972); East Tennessee W.N.C.R. Co. v. Gouge, 30 Tenn. App. 40, 203 S.W.2d 170, cert. denied, (Tenn. 1947); Betty v. Metropolitan Government, 835 S.W.2d 1 (Tenn. App.), perm. to appeal denied, (Tenn. 1992). In our later cases, we have made the existence of two separate remedies abundantly clear.
See Monday v. Knox County, 220 Tenn. 313, 417 S.W.2d 536 (1967); Jones v. Hamilton County, 56 Tenn. App. 240, 405 S.W.2d 775 (1966), Murphy v. Raleigh Utility District, supra. The case of East Tennessee and W.N.C.R. Co. v. Gouge, 30 Tenn. App. 40, 203 S.W.2d 170 (1947) is not to the contrary for in that case the railroad did not plead the limitation set forth in T.C.A. § 23-1424. T.C.A. §§ 23-1423 and 23-1424 apply even in the cases where there is no actual entry upon the land.
This means then, that T.C.A. sec. 23-1423 becomes operative either upon the taking of land without a petition on the part of the taker, or upon the nonsuit of the condemnation petition. So, since sec. 23-1424 was enacted, not for the purpose of providing an absolute bar to an action such as this, East Tennessee and W.N.C.R. Co. v. Gouge, 30 Tenn. App. 40, 203 S.W.2d 170, but was enacted to be read and applied with sec. 23-1423 so as to provide a remedy and an ordinary statute of limitation, in land taking involving the power of eminent domain, it must be held sec. 23-1424 was intended to become operative only at the time suit could be brought under sec. 23-1423, one of which times would be following a nonsuit of the condemnation case. An ordinary statute of limitation commences to run when the plaintiff has a cause of action and the right to sue.
We think that this one year statute means that it begins to run within one year from the time of the injury instead of one year from the date of construction. Morgan County v. Neff, 36 Tenn. App. 407, 256 S.W.2d 61, and East Tenn. etc. R. Co. v. Gouge, 30 Tenn. App. 40, 203 S.W.2d 170. This statute does not apply to an actual taking but for acts committed as a result of the taking.
Then the following Section of the Code, 23-1423, grants the remedy to the owner in case the first statute has not been complied with. Under this last mentioned Section of the Code, which was Section 3131 of the Williams' Code, the Court of Appeals of this State in East Tennessee W.N.C.R. Co. v. Gouge, 30 Tenn. App. 40, 203 S.W.2d 170, held that the owner may bring an action in the ordinary way, which can mean nothing else than action of trespass or an action upon the facts of the case to recover the value of the land and damages. That is exactly what was done in this particular case.
The rule is well settled that where the evidence is in conflict, as here, and there is material evidence both ways on fact questions, this Court will not disturb the jury's verdict. East Tenn. W.N.C.R. Co. v. Gouge, 203 S.W.2d 170, 171 (Tenn.Ct.App. 1947). Taking the strongest legitimate view of the evidence in the light most favorable to the verdict, as we are required to do, we find material evidence to support the jury verdict (1) that the Deceased had the capacity to execute a will and (2) that the execution of the will was her voluntary act, free of the undue influence of others.
"The rule is well settled that where the evidence is in conflict, as here, and there is material evidence both ways on fact questions, this Court will not disturb the jury's verdict." East Tennessee W.N.C.R. Co. v. Gouge, 30 Tenn. App. 40, 42, 203 S.W.2d 170, 171 (1947). Because the record contains sufficient evidence which would allow the jury to find undue influence, the trial court correctly denied Mr. Brindley's request for a directed verdict.