State v. Hamilton

• Decision Date: 08 November 1902
• Citation: 70 S.W. 619
• Parties: STATE ex rel. KINCAID v. HAMILTON et al.
• Court: Tennessee Supreme Court

70 S.W. 619

STATE ex rel. KINCAID v. HAMILTON et al.

Supreme Court of Tennessee.

November 8, 1902.

Appeal from chancery court, Claiborne county; Hugh G. Kyle, Chancellor.

Suit by the state, on the relation of S. C. Kincaid, against T. A. Hamilton and others, From a decree of the court of chancery appeals affirming a decree for complainant, defendants appeal. Modified.

Templeton & Carlock, Montgomery & Arnold, and H. Y. Hughes, for appellants Rogers & Rogers, for appellee.

GREEN, Special Judge.

In the year 1890 G. W. Montgomery and others organized under the laws of Tennessee a private corporation for profit, known as the East Cumberland Gap Land Company, for the purpose of purchasing large tracts of real estate and subdividing the same into smaller tracts, town sites, lots, streets, and alleys. Prior to obtaining this charter the said incorporators had already in the year 1889 purchased from T. A. Hamilton and J. B. Hamilton a portion of their farms, and also other adjacent lands from other owners, and had laid off and platted same into a town site under the name of East Cumberland Gap. Upon the creation of said corporation the absolute title to the lands thus acquired was transferred to it by said incorporators, free and clear of all liens, in consideration of the stock of the company; and a new map of the town site was made, and placed on record in the register's office of Claiborne county. The East Cumberland Gap Land Company sold many of these lots at public and private sale with reference always to said map. In the year 1890 the Louisville & Nashville Railroad extended its line of railway into the town, and constructed a depot and other buildings. A large hotel was constructed, at a cost of something like $20,000, a school building and a church were erected, and the town soon contained a population of between 400 and 500 people. All the streets and alleys appearing upon the said map were dedicated, but they were never accepted or recognized by any municipal or county authority, nor was there any acceptance of the dedication by public use or otherwise, except such as arises from the purchase of lots as laid down on and with reference to said map. There are 144 blocks, in all containing many hundreds of lots, intersected at convenient intervals by streets, avenues, and alleys. In the year 1894 a general creditors' bill was filed in the chancery court at Tazewell for the purpose of having the East Cumberland Gap Land Company wound up as an insolvent corporation. This proceeding disclosed that in 1892, after many lots had been sold, the town company had executed a deed of trust to secure certain indebtedness due to stockholders. The said bill was sustained, and all the real estate of the East Cumberland Gap Land Company was sold for the purpose of paying its debts and distributing its assets. The real estate was sold in comparatively large bodies, and bought as follows: One portion by defendant Montgomery, one portion by defendant Devine, and one by defendant J. B. Hamilton. The Bank of Shawanee and P. G. Fulkerson, and probably some others, bought the other portions. The proceedings under said insolvent bill did not undertake to close up any of the streets or alleys, and, as neither lot purchasers nor the public were parties thereto, their rights necessarily could not have been affected. Shortly after its purchase the Bank of Shawanee conveyed the land it had bought to the defendant T. A. Hamilton, describing the outside boundaries by a reference to the recorded map of the town site. The said P. G. Fulkerson also conveyed the lands he had purchased to the same defendant, with like description; and the land bought by defendant J. B. Hamilton in the insolvent proceeding was likewise described with reference to said map. The said T. A. and J. B. Hamilton, about the year 1899, undertook to inclose the property thus acquired by them, and use it as farm property; thus practically obstructing all the streets and alleys inside the boundaries conveyed to them. Thereupon the complainant, Kincaid, filed this bill for the purpose of requiring the Hamiltons to remove the fences placed by them on said streets and alleys, and to enjoin them from making further obstructions.

None of the streets on the map have been worked, except for a short distance around the hotel, and no street within defendants' inclosures has been worked at all. The complainant, Kincaid, had bought from the East Cumberland Gap Land Company, while it was yet a going concern, lots Nos. 5, 6, and 7 in block 49, and had also obtained by purchase from the individual owners lots Nos. 12 and 13 in block 85, on the corner of Scott street and Virginia avenue. Subsequent to making these purchases, and subsequent also to the termination of said insolvent proceedings, the complainant, on July 20, 1897, purchased what is known as the "Watts Farm," a tract of land lying near to and north of the town site. In the same year he also purchased a small tract of three acres lying between his farm and the town site, for the purpose of providing himself with a right of way to said Scott street, which street afforded him the nearest and most direct route from his farm to the depot in East Cumberland Gap. The defendants have obstructed Scott street with their fences in three different places, but, except in this particular, the obstructions erected by defendants result in no practical injury or damage to complainant. East Cumberland Gap was never incorporated as a municipality, and, while it contains now a population of between 200 and 300 people, the boom which at one time gave promise of its...