City of Athens v. Burkett

• Decision Date: 12 September 1900
• Citation: 59 S.W. 404
• Parties: CITY OF ATHENS v. BURKETT et al.
• Court: Tennessee Supreme Court

59 S.W. 404

CITY OF ATHENS v. BURKETT et al.

Court of Chancery Appeals of Tennessee.

September 12, 1900.

Appeal from chancery court, McMinn county; T. M. McConnell, Chancellor.

Bill by the city of Athens against T. M. Burkett and others. From a decree in defendants' favor, plaintiff appeals. Affirmed.

Geo. G. Williams and Gaston & Madison, for appellant.

WILSON, J.

This bill was filed July 16, 1898, by the city of Athens, a municipal corporation of this state, to have a described parcel of land in what is known as "Ingleside Addition," and within its corporate limits, declared a public park for the use and enjoyment of the public. The bill, upon the hearing, was dismissed, and the municipality appealed. The bill, in substance, avers: (1) That complainant is a municipal corporation under the laws of this state, and by virtue of its legislative powers has, as trustee for the public, the right to the possession, use, management, etc., of all the city's public squares, parks, commons, etc., within its corporate limits. (2) That as a municipal trustee it is the owner of the parcel of land which is described, or of an easement in, to, and over the same, and that as trustee it is entitled to the immediate possession of the same. (3) That on the registered plat or map, a certified copy of which is exhibited with its bill, the parcel of land claimed by it is plainly marked "Fountain Square." (4) That in March, 1887, W. D. Henderson, as trustee of the Mineral Land & Improvement Company, had vested in him, for the use of this company, the title to a tract of land known as "Ingleside Addition to Athens," and embracing "Fountain Square," and that Ingleside addition was surveyed and laid off into streets, avenues, squares, and alleys, all the squares being subdivided into lots, etc., except Fountain square. (5) That the company had a plat or map of said addition drawn showing the division of the land into lots, streets, etc., and that Henderson, trustee, acknowledged the said plat or map for registration in February, 1890, and that the same was registered. (6) That said map shows all the squares appearing thereon except Fountain square, designated by capital letters, and that all except Fountain square are intersected by alleys, streets, etc. (7) That Fountain square, as it appears on the map, was irrevocably dedicated to the public for a public park or common by the surveying and platting said addition into streets, etc., by the sale of lots with reference to said map, by its registration, and by the acts and declarations of the promoters of the Ingleside addition, and those of the real-estate agents of the company made to purchasers of lots before, at the time of, and during the sale of lots in said addition, leaving purchasers to honestly believe and rely upon their assurance that Fountain square was to be a public park. (8) That said company, by its real-estate agents, sold many lots in Ingleside addition in reference to its registered map, it being stated to intending purchasers by the company or its agents that the square laid off as Fountain square was a public park, and that by these representations sales of lots were made at enhanced prices, and that residences of value have been built upon said lots by good citizens, who occupy them. (9) That notwithstanding the facts stated, and the right of complainant, as the corporate guardian of the public, to the possession, management, and control of Fountain square, and to an unobstructed easement in, to, and over the same, the defendants, in 1894, took possession of said square, and have since been in possession of the same, claiming it by some sort of quitclaim deed or assurance of title. (10) That although said Fountain square had been unconditionally and irrevocably dedicated to the public as a public park as aforesaid, and especially to complainant for such park, the defendants have it inclosed by a fence. (11) That by the erection of said fence the defendants have established a public nuisance, and by its continuance are maintaining such nuisance, in disregard of the rights of complainant and of the public to the use and enjoyment of Fountain square. (12) That Fountain square, in consequence of its dedication to the public, was never assessed for state, county, or municipal taxation, nor was any tax paid thereon since it was laid off as a public square, and the charge is made that the defendants have all the time been fully cognizant of the facts alleged in the bill touching its dedication to the public. (13) That ever since it was known that defendants were seeking to disturb and obstruct the right of the public to said square by appropriating it to their own use there have been murmurs of discontent from citizens and various corporate officials, and that complainant, April 1, 1897, appointed a committee to investigate, either alone or in connection with counsel, in order to discover its rights in relation to the square aforesaid; that said committee presented to the complainant a written report, April 9, 1897, and notice was given in the bill that said report, and the city's action thereon, would be filed and relied on as evidence in the cause; it being stated in said report that defendant Burkett declared that he held under a quitclaim deed, and denied the complainant's rights in the premises. The prayer of the bill is — First, that the quitclaim deed under which defendants claim be declared void and removed as a cloud upon the title of complainant, and that it be canceled, or that it be declared that defendants have no right to interfere with the possession, etc., of complainant in and to said square; second, that the rights of complainant, as the municipal custodian of the square, be decreed, and that it be put in possession; third, that the erection and maintenance of the fence around the square by defendants be declared to be a public nuisance, and that it be removed, and that the defendants be perpetually enjoined from interfering with the uses and purposes for which the square had been dedicated.

The bill was demurred to on the following grounds: (1) It does not show any title or right in complainant to maintain the suit. (2) The alleged facts of dedication are insufficient to vest any right or title in complainant. (3) Complainant was not created until March 21, 1891, after the alleged acts of dedication, and said dedication could not, therefore, have been made to it as trustee. (4) That the alleged dedication could not have been made to the complainant as trustee for the reason stated in the foregoing ground of demurrer, and nothing is charged to have occurred since the creation of complainant which vests it with any rights. (5) Said dedication averred in the bill, if one was made, was made to purchasers of lots from Henderson, trustee, and not to complainant, and hence it cannot maintain the suit.

This demurrer was overruled by the court, and defendants answered March 14, 1899. In their answer they deny the claim of complainant, and, admitting the erection of the fence, aver that they fenced their own property, and in doing so ignored neither the rights of the complainant nor of the public, nor of any individual thereof. In short, all the grounds of relief averred in the bill were put in issue. A large mass of evidence was offered.

The chancellor heard the cause May 13, 1900. He held that the equities of the bill were fully met and denied by the answer, and that they were not supported by the proof, and thereupon dismissed the suit, with costs. From this decree complainant prayed and was granted an appeal to the supreme court, and it has assigned these errors: First. The chancellor erred in dismissing the bill. He should have held that Fountain square was dedicated to the public for a public park; that complainant, as trustee for the public, was entitled to the immediate possession, use, and management of said square; that the fence erected around it by defendants was a public nuisance, and should have abated the same; and that he should have perpetually enjoined the defendants from appropriating the same to their private use, or to any purpose or use inconsistent with the purposes of its dedication, and from setting up any claim or doing any act inconsistent with the public easement in, to, and over the same.

The following facts, briefly stated, are established by the record: In March, 1887, some gentlemen of McMinn county, one of whom was the defendant Burkett, associated themselves together under the name of the Athens Mineral, Land & Improvement Company. It was generally known as the "Ingleside Syndicate." These gentlemen thus associated bought about 40 acres of land adjacent to the town of Athens. In making this purchase it was their purpose and intention to divide the land into lots, etc., separated by streets, etc., for the purpose of the sale of the lots at a profit. The title to the land was vested in one Henderson, a member of the association, for the use and benefit of all, to facilitate the passing of titles to lots that might be sold. A map or plat of the land was made, showing a division of it into lots, streets, etc., and on the map the property was designated as "Ingleside Addition to Athens." The plot of ground claimed here, and known in the record as "Fountain Square," was not so designated on this map. This block on this map was divided into streets, lots, etc. Shortly after this map or plat was made the company had a sale of its lots marked on it. That sale was had March 12, 1887. In a few days after this the association or company had another map of its properties made. This map or plat was acknowledged by the trustee and registered. On it appears a block or parcel of the land before intersected by streets on the previous map designated on it "Fountain Square." This second map was hung up in the office of the company, and it, or a copy of it, of a smaller size, was used by the real-estate agents in making sales of the...