On Petition to Rehear
Burnett, Justice.The Hoods through able counsel have filed a forceful, dignified and respectful petition to rehear in this case. We have carefully read and re-read this petition and authorities therein quoted from at length and others. After having done so, we are now in a position and do respond thereto in this opinion.
The answer to the petition merely states that it is a reargument and consequently should not be considered by us under Rule 32 of this Court. Due to the fact that every member of this Court was once a practitioner we realize the fact that it is almost impossible to file a petition to rehear without again rearguing what has been theretofore argued, especially when it is done in a slightly different manner and knowing what was in the mind of the Court when the opinion was written — this not being known at the time the original briefs and arguments were made.
This petition likewise takes up at great length a case that was pointed out by us of Moses v. Sanford in our original opinion. This case was not cited by either party in the original briefs and apparently was' overlooked by both sides. ■■ We are satisfied more than ever after a re-reading of the Moses case that the principle here involved was determined in that lawsuit. The opinion in the Moses ease is taken up in this petition and it is attempted to show that this case is not controlling in the question here involved primarily because there was a franchise involved in the Moses case which'is not involved *336in this case. That is not the point in either lawsuit by any stretch of the imagination. A clear reading of the Moses case shows that the claimed incidental damages there were to a franchise in running the ferry across the river because the traffic was diverted over a bridge rather than on this ferry. It is now said that this franchise is not property. True it is not property, but if in a condemnation suit, or a suit for eminent domain, a franchise had been injured by the taking of property, incidental damages would have responded to the injury of this franchise just like anything else. The fact that it is not property like real property isn’t the point at all. The point is that when this bridge was built and traffic went another way the mere fact that it went over the bridge and didn’t go over the ferry, where the franchise was, was not allowed in that case as incidental damages because it is dammm absque injuria. That is all that the incidental damages that we disallowed are in the instant case. The mere building of a main arterial highway, wherein the public authorities directed that traffic should go one way or the other, does not respond or cause damages to property for reason of the fact that traffic is thus diverted and cannot come in and spend their money on this property without going a roundabout way.
In the petition to rehear and in this reargument the cases of Illinois Central R. Co. v. Moriarity, 135 Tenn. 446, 186 S.W. 1053, and Lewisburg & N. R. Co. v. Hinds, 134 Tenn. 293, 183 S.W. 985, L.R.A.1916E. 420, are cited, quoted from at length, and it is argued that they are authority for allowing the incidental damages that we have disallowed by our original opinion. Both of these cases were cited, quoted from and relied upon in State v. Rascoe, which is cited in our original opinion, and upon *337which the present petitioners relied and were successful in convincing the two lower courts was applicable to the present situation. At the time of our preparation of the original opinion herein we read both of these cases. "We have re-read them since the petition was filed. Over a period of more than a quarter of a century as a member of one of the three courts, the Circuit Court, the Court of Appeals and this Court, the writer of this opinion has read these two opinions, and particularly the Hinds opinion, many times. The Hinds opinion takes up more than sixty printed pages in a volume of the Reports. It covers almost every conceivable kind of case with reference to damages and incidental damages in eminent domain suits, quotes copiously from various and sundry authorities, and arrives at the conclusion that in eminent domain or condemnation suits the measure of incidental damages should be measured largely very much like they are in ex contractu rather than in ex delicto suits. In this opinion can be found statements supporting the argument for these damages here on behalf of the petitioner as well as statements to the contrary. Be this as it may, the question involved in the Hinds case was in no sense of the word related to the question involved the case now before us. The question of damages involved in the Hinds case was closer to the question involved in the Itascoe case which we have fully considered in the original opinion. The question of damages involved in the Moriarity case has no relation whatsoever to the question of damages sought in the instant case. The cul de sac situation does not apply to the factual situation in the instant case at all, as it did to some extent in the Moriarity case. There are quotations from other courts given in the Moriarity case which apply to the factual situation *338in the instant case. The Moriarity case though does recognize that “it is sometimes quite difficult to distinguish between the exercise of the police power and the exercise of the power of eminent domain.” [135. Tenn. 446, 186 S.W. 1056] We recognize this fact, but feel that unquestionably when all States in the Union have passed on this subject with the exception of two, cited in our original opinion, and they have and do recognize that the damages here sought are due by reason of the exercise of the police power rather than that of eminent domain, then that we certainly, cannot be severely criticized for accepting this viewpoint, especially in light of an unbiased reading of the language of this Court in the Moses case relied upon by us. We therefore think that what we said in our original opinion was absolutely correct and we strictly adhere thereto.
It is again reargued that the petitioners are entitled to compensation for the fair market value of “the disputed strip” of the land taken. We have again considered this matter and since there is no new authority cited we are satisfied that the two lower courts were correct in their conclusion therein, which we affirmed in our original opinion.
In arriving at our original opinion herein, as well as our conclusion on the petition to rehear, this has not been done hastily or without a great deal of thought and investigation. In working up the matter originally we spent some ten days, read all authorities cited in both briefs, as well as doing a great deal of independent investigation, and it was after doing so that we arrived at the conclusion which we did. It is not an easy matter to disagree with two lower courts. It is much easier, if you *339are going to take the easy road, to deny the writ. When yon are conscientious, as everyone on the Court is, in trying to arrive at the right conclusion as you see it under the law and the facts, then it is necessary to grant the writ if the Court thinks it is necessary to do so and to disagree in the result and then from authority and experience and the facts of the case to arrive at the conclusion that the Court thinks these things justify. After having done this, we have come to the conclusion that the opinion as originally handed down herein is correct, and the petition to rehear must be denied.
Peewitt, Chief Justice, not participating.