Wilkins v. Chicago, St. L. & N.O.R. Co.

• Decision Date: 22 June 1903
• Citation: 75 S.W. 1026,110 Tenn. 442
• Parties: WILKINS et al. v. CHICAGO, ST. L. & N. O. R. CO. et al.
• Court: Tennessee Supreme Court

75 S.W. 1026

110 Tenn. 442

WILKINS et al. v. CHICAGO, ST. L. & N. O. R. CO. et al.

Supreme Court of Tennessee.

June 22, 1903

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Bill by W. G. Wilkins and others against the Chicago, St. Louis & New Orleans Railroad Company and others to restrain the execution of certain contracts between the city of Memphis and the other defendants, as diverting property to a use different from that to which it was dedicated. From a decree for defendants, complainants appeal. Affirmed.

Carroll McKellar & Bullington, for appellants.

J. M Dickinson, Cooper, Hirsh & Cooper, and W. B. Henderson, for appellees.

NEIL J.

The case comes before us on bill and demurrer. The allegations of the bill necessary to be noted are the following:

That the city of Memphis as originally laid out was the west part of the Rice grant, and its site appeared as a town reserve on a plat attached to the deed of partition between the proprietors of that grant, which was surveyed on the 28th day of July, 1820, as appears of record in the register's office of Shelby county; that the plat or map, as originally laid out in 1819, showed between Bayou Gayoso on the north and Jackson street on the south an area or strip of ground designated as a public landing, and between Jackson street on the north and Union street and Howard Row on the south, and Mississippi Row (now Front street) on the east and the bank of the Mississippi river on the west, a strip of land designated as the "Public Promenade," and that these words indicated unmistakably the purpose of the proprietors; that by this map they dedicated the said landing and promenade, as well as the streets, to the use of the public, and that, as to the landing and the public promenade, the purpose indicated was that they were not to be diverted to other and different uses than these thus specifically indicated by the use of the words themselves.

That prior to the passage of the taxing district act, approved by the Governor on the 31st of January, 1879 (Acts 1879, p. 15, c. 11), the municipal authorities of the city of Memphis made no grant of any portion of the public promenade or public landing to railroad companies for stations or depot purposes, save only in the lease to the Memphis & Little Rock Railroad Company, as reorganized, of certain portions of the wharf, and of the center landing:

That this lease was recognized by the taxing district government, by a contract dated the 9th day of September, 1880.

That prior to this recognition the Mississippi & Tennessee Railroad Company, a corporation under the laws of Tennessee and Mississippi, by an agreement of date June 21, 1880, between it and the taxing district of Shelby county, claimed to acquire a right to lay down and maintain, from that date, a single railroad track, beginning at a point in the south side of Calhoun street, extending thence, crossing the north side of Calhoun street; thence northwestwardly through private property to the south side of an alley between Calhoun street and --; thence crossing said alley, parallel with Main street, to the south side of Butler street; thence crossing Butler street at about 245 feet west of Main street; and thence as set forth in the contract exhibited with the bill.

That the taxing district attempted to grant to the Mississippi & Tennessee Railroad Company the right to operate a branch track to connect the main track with the tracks of the Memphis & Charleston Railroad Company over the public grounds between Adams and Poplar streets, which by the terms of the contract was to terminate at the end of 40 years from its date.

That the third clause of this agreement was in the following words: "The right of way and occupancy herein granted to the railroad company for the construction and operation of said union passenger and freight railroad shall include only so much of the streets, alleys, and public grounds as may be occupied by the embankments, excavations, tracks, and bridges of the main track and branches herein specified; the taxing district only granting the right of way over public property, and none other."

That afterwards, on the 1st day of September, 1880, the Memphis, Paducah & Northern Railroad Company entered into a contract with the taxing district, whereby the municipality granted a lease for a track for the period of five years, and also the right to erect a temporary wooden depot building on the following piece of ground, to wit, that certain portion of the river front bounded on the east by Front Row, on the south by Poplar street, on the west by Promenade street, on the north by Exchange street, being a strip of land about 50 feet in width by 250 feet in length.

That afterwards, on the 26th of April, 1881, the municipality entered into another contract with the last-named railroad company, whereby, among other things, it undertook to lease to the said company, for the term of 50 years, from the 1st day of May, 1881, to the 1st day of May, 1936, upon certain conditions set forth, the following public property: "Those lots of ground on the river front, lying on the east of Promenade street, and on the west of Front street, being bounded by Promenade street on the west, Front street on the east, by Market street on the north and by Poplar street on the south; and those other lots, bounded on the north by Union street, on the south by Beale street, on the east by Clinton street, and on the west by the line of the Mississippi & Tennessee Railroad extension; and also granted, or attempted to grant, to said railroad company the right and privilege of laying down, maintaining, and operating its tracks over and through said premises south of Market street, across said Market street, upon or under Promenade street to Auction street, and thence continuing north on that line to Bayou Gayoso, and along Promenade south to Market street, to the southern limit of the premises leased, on Poplar to Washington street, with the privilege of extending its main line and side tracks not more than three, over and across said first described premises, and over the square south of Poplar street to Washington."

That by the second clause of the contract just referred to it was provided as follows: "And upon said premises so leased to the aforesaid, the second party, its successors or assigns, may erect such substantial brick, stone, or iron depots for freight and passenger uses, and such platforms, main and side tracks, and such usual appurtenances, as they may deem proper for the transaction of their said business, and shall remove the banks or bluffs on said ground south of Union street so as to bring the same to the grade of Clinton street or the levee; but all these matters are always to be under the supervision of the district engineer."

That by this contract it was expressly provided that it was to determine whenever the said leased premises ceased to be used for railroad purposes by the railroad company, its successors and assigns.

That the successor to the Memphis, Paducah & Northern Railroad Company constructed a passenger depot on the leased premises, and closed up all the streets leading from the northern portion of the city to the river except Poplar street, and rendered Poplar street, between Front street and the river, practically useless by reason of the operation of the cars over and storage upon its tracks on the river front; that these tracks are over the public promenade and public landing before referred to.

That on the 20th of March, 1893, the municipality attempted to enter into another contract with the Illinois Central Railroad Company (the successor to the roads previously mentioned, except the M. & L. Railroad Company) for a period of 15 years, during which time it purported to grant to that company, for an annual rental of $500, the right to the use of Georgia street for the purpose of maintaining its then present and any additional tracks thereon, and that the contract provided for the erection of a foot passenger bridge.

That on the 25th day of March, 1895, and during the years 1900 and 1902, the municipality entered into contracts with other railroad companies (the Kansas City, Springfield & Memphis Railway Company, the Union Railway Company, and the Little Rock, Charleston & Memphis Railroad Company), none of which are made defendants to the bill, whereby these companies were allowed the privilege or right of building and operating tracks upon the said strip of ground known as the "Public Promenade" and the "Landing."

That "notwithstanding these several legislative concessions, and the occupation of public property under them, the defendants the Chicago, St. Louis & New Orleans Railroad Company and the Illinois Central Railroad Company were not satisfied with the munificent donations of public property to them, but desired other and further gratuities, reasonably worth upwards of one million dollars, and consequently, on or about the 6th of June last (1902), addressed a petition of nine paragraphs to the legislative council of the city of Memphis, and therein prayed for the additional privileges desired by them; that they are substantially: (1) for authority to abandon the use of Poplar Street Station, and to authorize the premises to be put to any railroad uses for which they might be fitted; (2) for the extension of the three several contracts mentioned in the aforesaid petition for a period of time that will probably continue beyond the life of the present inhabitants of the city of Memphis; (3) for the right to lay and maintain such other tracks on Senatobia street as may be found convenient; (4) to cross Calhoun street; (5) to lay an additional track across Butler street, Shelby and Trezevant...