Goetz v. Knoxville Power & Light Co.

• Decision Date: 20 November 1926
• Citation: 290 S.W. 409,154 Tenn. 545
• Parties: G×TZ ET AL. v. KNOXVILLE POWER & LIGHT CO.
• Court: Tennessee Supreme Court

290 S.W. 409

154 Tenn. 545

G×TZ ET AL. v. KNOXVILLE POWER & LIGHT CO.

Supreme Court of Tennessee.

November 20, 1926

Certiorari to Court of Appeals.

Bill in chancery court by H. E. G tz and others, in which other parties joined as complainants against the Knoxville Power & Light Company. The original complainants were denied any relief by the trial court. The Court of Appeals dismissed the bill as to the parties joining as complainants, and allowed certain relief as to the original complainants. Defendant brings certiorari. Decree modified.

Cates Smith, Tate & Long, of Knoxville, for defendant.

SWIGGART J.

This cause has been brought to this court by the defendant Knoxville Power & Light Company, by petition for certiorari to review the decree of the Court of Appeals sustaining the original bill of the complainants and enjoining the defendant from dismantling the Fountain City Park, and from devoting said park to any use in conflict with the right of the complainants to use and enjoy it, as contemplated in a certain lease contract between the defendant and the Fountain City Company, and in a deed from said company to the defendant, for a period coextensive with the term of the leasehold estate.

The petition for certiorari has been granted heretofore by this court, and the cause has been argued orally by counsel for both parties.

The complainants in whose favor the Court of Appeals rendered its decree are the owners, respectively, of lots or parcels of real estate adjoining the area known as the Fountain City Park.

After the original bill had been filed by the complainants, above referred to, other parties, residents and property owners in the town of Fountain City, which is an unincorporated town of about 3,500 inhabitants, in Knox county, were permitted to become complainants by petition, and it was sought in their behalf to have the court decree that the Fountain City Park had been dedicated to the public use prior to the time it was acquired by the defendant.

The Court of Appeals held that no such dedication had been proved and dismissed the bill in so far as this second class of complainants was concerned. No petition for certiorari was filed in their behalf, and the decree of the Court of Appeals that the park had not been dedicated to the public use is not open for review or modification by this court.

The petition for certiorari and the assignments of error thereunder present primarily the question whether the original complainants are entitled to have the park maintained as an open space by virtue of the recitations of the deed executed by the Fountain City Company to Frank McBee, their joint predecessor in title, and the recitations of a lease and deed executed by the Fountain City Company to the defendant, Knoxville Power & Light Company.

Prior to August 21, 1906, the Fountain City Company was the owner in fee and in possession of an area or square of land, inclosed on its four sides by Fifth avenue, College street, Broadway and Hotel avenue.

On August 22, 1906, the Fountain City Company executed a lease to the Knoxville Power & Light Company, whereby the Fountain City Park was demised to the defendant, its successors, and assigns, "so long as said property may be used for park purposes by said party of the second part in connection with its line of railway, extending from Knoxville to said property." The lease contained a covenant that the defendant should have and enjoy peaceable possession of the premises "so long as said property may be used for park purposes as aforesaid." The leased premises included the southern part of the square, above described, containing several acres, and also a small tract separated from the first tract by a street, and, perhaps, by other property. The southern part of the square, included in the lease, is referred to in the subsequent deed from the Fountain City Company to the defendant "as the spring tract of what is known as Fountain City Park," and the second tract, included in the lease, is referred to in said deed "as the lake tract of what is known as Fountain City Park." Said deed contains the further recitation that:

"The above-described two parcels or tracts of land constitute what is known as Fountain City Park, situated in Fountain City, Knox county, Tenn."

At the time of the execution of the lease of August 22, 1906, the northern part of said square, containing about seven acres, which is the property now owned by the original complainants in this case, was known as the Fountain City Hotel property, a hotel then being located on that part of the property now owned by the complainant H. E. G tz.

The lease of August 22, 1906, provided that the lessor, who was the owner of the hotel property, and the guests or patrons of the hotel, or the purchaser of said hotel and his patrons or guests, should at all times have "free and unobstructed access to the park and grounds on the property included in the lease."

The eighth clause of the lease provided that, in the event the premises should cease to be used by the defendant, its assigns, or successors, for park purposes, in connection with said line of railway:

"Thereupon this lease shall cease and determine, and said property shall immediately revert to said party of the first part, its successors or assigns."

The defendant held the premises in question under this lease until September 21, 1914, on which date the Fountain City Company executed a deed conveying the premises described in the lease to the defendant in fee simple, with covenants of general warranty, but with the covenant against incumbrances qualified as follows: "Except that free and unobstructed access to the spring on the north line of the property, first above described as being the spring tract of Fountain City Park, shall be given to Frank McBee, and to the public generally, such access, however, to be from the north side of the property hereby conveyed and at or near the spring site."

The spring referred to in the foregoing clause of the deed is located on the north line of the spring tract of the Fountain City Park, which is the south line of the hotel property now owned by the complainants.

On September 10, 1914, eleven days before the execution of said deed from the Fountain City Company to defendant, the Fountain City Company conveyed to Frank McBee, by warranty deed, the above-mentioned hotel property, which is the northern part of the square above referred to, containing about seven acres. The deed was duly put of record in the office of the register of Knox county on September 14, 1914. Following the description of the property conveyed, and immediately preceding the habendum clause, the deed contains the sentence:

"Also the right of access to the adjoining park and use of spring on same."

The habendum clause of the deed to McBee is as follows:

"To have and to hold the said premises to the said party of the second part, his heirs and assigns forever."

After the purchase of this hotel tract by McBee, he caused it to be subdivided into lots, ten in number, as shown on a map, exhibit No. 1, to the deposition of Frank Jones in this cause. Eight of these lots were sold by McBee and conveyed by deeds expressly referring to the park as the southern boundary of each lot. The other two lots were sold by McBee to C. A. Gillespie, and in the deed thereto reference was made to a map on record for the dimensions and boundaries. Gillespie conveyed his two lots to the complainant G tz by a deed in which he expressly conveyed to G tz whatever rights, licenses, and privileges he held in the Fountain City Park, and to the spring and waters thereon, under and by virtue of the deeds under which he held title to lot 1A of the property conveyed. The present owners of the other eight lots of this subdivision, who are complainants, hold under deeds referring to the park as their southern boundary.

It appears from the record that after the execution of the deed conveying the fee to the park property to the Knoxville Power & Light Company, in 1914, that company continued to maintain the park as theretofore, until shortly before the original bill was filed in February, 1923. The bill averred that the Power & Light Company had announced its purpose to subdivide the park property into building lots, streets, and alleys, and to sell the same, and that such sale had been advertised; whereupon the bill was filed for a decree declaring the rights of the parties in and to the park property, and to enjoin defendant from selling, transferring, incumbering, or otherwise disposing of the property.

The bill also prayed that the property be declared to have been dedicated to the public use, but, as stated, the Court of Appeals decreed against this contention, and that part of the decree of the Court of Appeals has not been brought to this court for review.

The original complainants were denied any relief in the chancery court, and their assignment of error, which the Court of Appeals sustained, was that, by reason of the recitals, covenants, and provisions in their deeds and in the deeds of those from whom they claim, they were entitled to have the Fountain City Park maintained for their benefit, and to enjoin the sale of the property for other purposes.

The Court of Appeals further reached the conclusion that the lease of August 22, 1906, whereby the Knoxville Power & Light Company took possession of the property in question for use as a park, was for a term of 99 years, and the decree rendered by that court was that the defendant should be enjoined from dismantling the park, or devoting it to any use except as contemplated by the terms of the lease, "for a period coextensive with the term of the leasehold estate."

We cannot concur in the finding...