109 Tenn. 276 | Tenn. | 1902
delivered the opinion of the Court.
In tbe year 1890, G. W. Montgomery and others organized under tbe laws of Tennessee a private corporation for profit, known as tbe East Cumberland Gap Land Company, for tbe purpose of purchasing large tracts of real estate and subdividing tbe same into smaller tracts, town sites, lots, streets and alleys. Prior to obtaining this charter the said incorporators bad 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 incorpo-rators, 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
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 toAvn 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 De-vine, and one by defendant J. B. Hamilton. The Bank of Shawanee and P. G. Fulkerson, and probably some others, bought the other portions. The pro
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 in
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 becoming an important place has long since collapsed. There is no market for the lots, and all hope of building up a town has been abandoned. It does not appear that there ever was, or that there is likely to he, any public demand for the streets and alleys which defendants have obstructed, and the lots inclosed by them are valuable only as farming land. The complainant
Upon this state of facts the court of chancery appeals, following the decree of the chancellor, held that complainant was entitled to have every street, avenue and alley appearing on the map opened and kept open: Defendants have appealed, and the questions in issue have been most elaborately and ably argued.
The case of Wilson v. Acree, 97 Tenn., 878 (37 S. W., 90), is relied on by complainant to support this view. That was a contest -over a single alley in the city of Chattanooga, where it appeared that the lot owners at the end of the alley had purchased when the alley was opened, and that it was valuable for ingress and egress to their lots, and that there had been a dedication thereof by public user.
The case of Mayor v. Howard, 1 Shannon’s Cas., 68, is also cited in support of this contention. There was no written opinion in this case; but from the meager facts appearing in the syllabus, which is alone published, it appears to have been a suit by the city of South Memphis against the original dedicators of a public square to prevent them from closing it. The court held in favor of the city, declaring that the square had been dedicated to the public use, and refused to allow it to be closed.
The case of Mayor v. Gill, 1 Shannon’s’ Tenn. Cas., 326, is said to support the complainant. That suit also involved the question of closing a public square.
In' both the cases last referred to the suits were brought by towns in their municipal capacities, and it is apparent that the squares in question had been accepted by the municipal authorities, and that lots had been bought with reference thereto. In all three of the cases mentioned it appears that the rights of the public had attached.
Elliott, Roads & S. (2d Ed.), sec. 120, is also relied on in support of complainant's contention. The author, in the first part of this section, announces the well-recognized doctrine that those who buy lots abutting on a street laid out on a map or plat have a right to insist upon the opening of said street. He then follows this up with the statement that all who buy with reference to a general plan disclosed by a map or plat acquire a right in all the public ways designated therein. The learned author must have used the expression “public ways” to mean ways in which the public had acquired rights by acceptance, user or otherwise.
At any rate, the weight of authority is opposed to complainant’s contention. The sound rule, it seems to us, is laid down in Jones, Easem., sec. 347, as fol
The cases cited by the author, so far as we have had access to them, fully sustain this statement of the law. Badeau v. Mead, 14 Barb., 328, was a case where the plaintiff purchased one lot in a village site which had been laid off and platted into lots, streets and alleys. The defendant obstructed one of the roads by an inclosure, and plaintiff enjoined him. The court granted relief to the extent that the obstructed road adjoined plaintiff’s premises, and, if necessary, out to the common highway, but declined to go further.
Where complainants, who bought a lot with reference to a plat, one side of the lot being bounded by an avenue, sought not only to have said avenue opened, .but also to have the fences obstructing other streets removed, the supreme court of Rhode Island held that, though complainants may have a technical right to pass and repass over the other streets, it would seem that a removal of the fences therefrom
The supreme court of Michigan, through Judge Cooley, in the case of Bell v. Todd, 51 Mich., 21 (16 N. W., 304), which is quite similar in its facts to the one at bar, where the unused streets and alleys of a “boom” town were obstructed, refused to have the obstructions removed upon a suit by lot purchasers who bought with reference to the plat of the town site, because it would inflict serious injury on defendant, and prevent his making valuable use of his premises, with no corresponding advantage to any one.
The syllabus of this case, which correctly summarizes the holding of the court, is as follows: “The rule that those who purchase by reference to a plat are entitled to the use of the street upon which the purchased premises appear to abut and of all connecting streets does not apply in a case where a plat was never acknowledged, nor the dedication thereby accepted, nor the streets laid out on it used or capable of use; and where the streets were neither ways of necessity nor of convenience, and no equities were shown against closing them for the benefit of individual interests.”
This court has held, in the case of Scott v. Cheat
To tbe same effect is Mathis v. Parham, 1 Tenn. Ch., 533, and authorities there cited, where tbe following language is used: “To preclude tbe owner of land from revoking tbe dedication of a street, however decisively bis intention to dedicate may be manifested, there must be an acceptance either by formal act of tbe public authorities or by common use, showing a clear intent to accept and enjoy tbe easement for tbe specific purpose of tbe proposed dedication.”
A municipal corporation, when it is expedient, may close a public street, but this must be done subject to tbe right of lot owners whose property abuts on said street to compensation. In sucb case, however, it seems that tbe owner of property on another street in tbe same municipality would have no right to compensation. State v. Taylor, 107 Tenn., 455 (64 S. W., 766).
The decree of the court of chancery appeals is accordingly so modified.