110 Tenn. 422 | Tenn. | 1903
delivered the opinion of the Court.
The case comes before us on hill 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 propietors of that grant, which was ;surveyed on the twenty-eighth 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
That prior to the passage of the taxing district act,, approved by the governor on the thirty-first of January,. 1879 (Acts 1879, p. 15, e. 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 ninth 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
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 first 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,
That afterwards, on the twenty-sixth 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 first day of May, 1881, to the first 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'bn 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
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 is was expressly provided that it was to determine whenever the said leased premises ceased to he 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 twentieth of March, 1893, the municipality attempted to enter into another contract with the
That on the twenty-fifth 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 á petition of nine paragraphs to the legislative council of the city of Memphis, and therein prayed for the additional privileges desired
That, unless restrained by injunction, the prayer of the above-mentioned petition will be granted, and all the rights and privileges therein sought to be obtained will be conferred npon the defendant railroad companies, and that this grant will be of such serious moment that it will operate to destroy the public landing, the public promenade, and the use and occupation of several of the highways of the city of Memphis, for any purpose other than railroad purposes.
The complainants are W. G. Wilkins and twenty-six other residents of the city of Memphis, and the defendants are the Chicago, St. Louis & New Orleans Railroad Company, the Illinois Central Railroad Company, the city of Memphis, and its board of police and fire com
The complainants describe themselves in the bill, and their interests to be affected by the matters complained of, as follows: “That they are severally property owners and taxpayers in the city of Memphis, county of Shelby, and State of Tennessee; that their property consists in part of real estate which is situated north of Union street, in the city of Memphis, and on Front street, between Union and Auction streets, some of it lying immediately east of the depot hereinafter more particularly described, and all of said property, in so far as its uses are concerned, and its rental value, directly affected by the administration of the municipal authorities of the city of Memphis, of the trust, hereinafter to be more specifically set forth.”
Speaking further to the interest of the complainants, the bill alleges: “That just prior to these contracts the business houses on Front street yielded large and remunerative rents. The property was exceedingly valuable, occupied by some of the largest merchants in the city, who had a remunerative trade, and the streets that were closed, and injuriously affected through the railroad operation under the aforesaid agreements, afforded every facility for the passage of freights from said business houses, both on Front street to the river, and from the landing to said business houses. After the contracts were made, the railroads severally and exclusively occu-
Again, speaking of the petition filed by the defendant companies Avith the municipal authorities, it is said that, if this is granted by the city, such action “will produce an irreparable injury to them, in that it will transfer and divert trade and traffic, and render the use of the property less desirable, and reduce the rental value thereof, Avithout affecting the assessment value thereof.”
The charges of the bill in respect of the trust are, in substance, that, by virtue of the plat or map which the original proprietors caused to be prepared and registered, containing the situs of the tOAvn or future city, the streets, the squares, the promenade, and the landing appearing thereon were dedicated to the public use, and that a trust was thereby created for the benefit of the citizens of Memphis, of which trust the municipality became the trustee; that this trust particularly affected the public landing and the public promenade, in that they were by such dedication devoted for all time to the uses indicated by this designation.
There is also filed with the bill an exhibit dated on the 18th of September, 1828, several years after the original dedication, which purports to explain the purposes of the original proprietors in making the original dedication, and to remove doubts which it states had arisen in respect of that purpose. Touching the streets and alleys, it is said in this instrument that it was the purpose of the proprietors that they should alAvays remain
As to the public landing, it was said in this instrument : “It was the original intention of the proprietors that there should on said ground forever be a landing or landings for public purposes of negotiation or trade, and that the same should be forever enjoyed for these purposes, obligatory on themselves, their heirs and assigns, but all other rights not inconsistent with the above public rights incident to the same, it was never the intention of the proprietors to part with, such as keeping a ferry or ferries on any .of the public
It is charged that the contracts before mentioned constituted a diversion of this property to a use wholly different from that to which it was dedicated, and constituted a breach of duty on the part of the trustee»
It is insisted in the bill that the complainants have the right to come before the court in the present proceeding and have the breaches of trust complained of corrected, and further breaches restrained.
In respect of the depot complained of in the bill, it is alleged: “The owners of the property contiguous thereto, prior to the erection of said depot, took no steps in the premises, doubtless misled by the.clause in the stipulation which referred to the further consideration of a greatly increased facility for commerce and travel resulting from the great continuous railway connecting from Memphis to the Atlantic Seaboard.”
It is charged that the city of Memphis, either as originally constituted, or as the taxing*district, was without power, through its legislative council or otherwise, to make these contracts referred to, first, 'because such action was a violation of the trust under which the property passed to the city, and, secondly, because it had no authority under its charter to make such contracts.
The city of Memphis joined in all of these demurrers, except the fifth and sixth.
The chancellor sustained the demurrer and dismissed the bill, whereupon the complainants appealed to this court, and have assigned errors.
Elaborate and very able briefs liave been filed upon both sides, and we have given to the case the care and attention which its importance required. One feature of the case that should be noted is that in their briefs and printed arguments counsel upon the respective sides of the case have not confined themselves to the facts set forth in the bill, but have referred to other matters, which are partly matters of which the court can take judicial cognizance, and partly facts alleged to be well known concerning the position, situation, and character of the property in controversy, although perhaps not of such a character as that the court can take judicial notice of them.
On the part of complainants the following matters are stated which aré partly a repetition of some allegation in the bill, partly additional matters, to-wit: “That the principal contract of which complainant is made is the one dated July 31, 1902, between the city of Memphis and the two defendant companies, by which, it is said, all of the contracts specified in the bill, to which these
The complainants’ counsel have also interspersed through the pages of their printed argument, photographic views, as follows: Three views of different portions of Front street, with corresponding portions of the promenade strip opposite; a view of Jackson street, one of the depots of the defendant companies, another of the depot of the Choctaw Company, another of the Choctaw depot and tracks, and still another of the present landing.
Again, it is said by the defendants that the strip referred to as “The Promenade” was not accepted by the city as a promenade, but only as general public property; that this is evidenced by its dealings with the property; that it was never' occupied or used as a promenade ; that the assertion of the right to use it for general public purposes goes as far back as the case of Mayor and Aldermen v. Wright, 6 Yerg., 497, 27 Am. Dec., 489, which was decided in 1834; that in 1844 the right of the city was again asserted, and successfully, in a contro
Again, it Is said by the defendants that there is nothing disclosed in the record regarding the use of the public promenade as such by the citizens of Memphis; that the hill fails to show that at any time since 1820 has the public promenade been used as a place of public recreation by the citizens; that if this fact had existed, without doubt the bill would have so stated, and that its silence on this subject is conclusive; that if the public during the past eighty years has never asserted any right to use “the so-called” promenade as such, it can hardly now he allowed to these complainants to assert the right after having acquiesced in a hostile use and when the rights of third parties have intervened.
Upon these facts extraneous to the bill, several contentions have been advanced. Among other things it is said, on the part of defendants, that the court should hold that the city never accepted the promenade as such, but only as public property which it might devote to any use deemed best for the public welfare. Again, it is urged that these facts show that the original purpose as to the promenade and the landing, by the change of time and circumstance, has been rendered incapable of accomplishment, or, at least, of preservation and enjoyment; that the city has made the best use of the prop
It would, perhaps, be doing an injustice to eminent counsel to say that it is seriously urged that in the present state of the pleadings these consequences could be legally deduced, but rather it should be said that the points referred to are made more in the nature of weighty- suggestions, with the purpose of indicating to the court the gravity of the matter under consideration, and that the real insistence of counsel on this subject is that while the court cannot, in general, on demurrer, look beyond the facts stated in the face of the bill, yet that it should consider as imported into the bill all pertinent facts of which it can take judicial notice, and that several of the facts above recited as extraneous to the bill are of that character, and, upon being considered in connection with the facts stated in the bill, present such a showing as would make it the duty of the court to decline to entertain the bill.
Passing this view of the case, we come to a considera-
We shall first consider the case made in respect of the strip of ground indicated on the old town map as the “Public Promenade” and the “Public Landing,” laying aside the question made as to the closing of streets.
As to the strip of land referred to, it should be premised that the rights of the city and of its inhabitants must be predicated upon the original dedication, and that no weight can be attached to the instrument of September 28, 1828, eight years thereafter. The original dedication by the registration of the map or plan, and the acceptance of the city thereunder, whatever may have been the terms of that acceptance, must control.
But it is contended that under the original dedication the strip embracing the public promenade and the public landing passed to the city, and the title was vested in it as trustee for the purposes indicated by the words, and the high sanctions that protect and guard trust property are invoked.in behalf of the complainants in respect of this property, and the court is urged to apply those principles in the present case.
It is stated that the public promenade became at once, upon the acceptance by the city, a perpetual pleasure ground for the people of the city, and that the municipal authorities had no power to sell it, or donate it,
The defendant’s counsel, while not denying the sound- •
The case referred to is Mayor & Aldermen of Memphis v. Wright, 6 Yerg., 497, 27 Am. Dec., 489. The case was decided in this city at the May term, 1834. The statement of facts upon which the decision was based is as follows: That the corporation of Memphis laid off part of the promenade in front of the city, on the Mississippi river, for a steamboat landing, and other parts for a landing for flatboats and other craft; that the charter of incorporation provided that the city should have power “to do all things necessary to be done by corporations”; that the mayor and aldermen enacted an ordinance forbidding flatboats and other water craft (other than steamboats) to lie in the steamboat landing, under a penalty of $1 per hour after the expiration of half an hour from the time the owner should he notified by the town constable to remove his boat or craft; that the defendant, in defiance of this ordinance, lay to at the steamboat landing with his flatboat for fifty hours after he was notified to remove; that a suit was brought before a justice of the peace to recover the penalty, when a judgment was obtained for $50, and an appeal was taken to the circuit court; that upon the trial in the circuit court the judge charged the jury, among other
In this court, as appears from the brief of counsel for defendant in error, published with the opinion, it was contended, as in the present case, that there was no error in the action of the court below, “because the corporation of Memphis had no right or power to change or divert the public dedications as designated on the map, without the aid of a court of chancery, from their indicated purposes.” Counsel for plaintiff in error relied upon the incorporating “act of 1826, chapter 115, and the general law in relation to the powers of corporations.” Eesponding to these contentions as applicable to the judge’s charge, this court, speaking through Green, J., said: “The part of the charge complained of assumes that a corporation cannot apply the public property of a town to any new use than that for which it was designated when the town was originally laid off. In this Ave are of the opinion the court erred. The public property belongs to the corporators, and may be appropriated by them to any use they may think proper. The mayor and aldermen are the representatives of
It is perceived that the occasion of the decision was the establishment by the city of a steamboat landing on one portion of the promenade, and of a flatboat landing on other portions of it, and the regulation of these landings — uses foreign to the occupation of the ground merely as a promenade; and it is further perceived that in the broadest terms it was held by the court, in deciding that case, that the city was not bound by the designation upon the map indicating the uses for which the
We need not consider whether this case was erroneously decided at the time; certainly it is opposed to the current of .modern authority. But now, sixty-nine years after this decision was rendered, during which long period it has been treated and acted upon as the law governing this particular strip of land, as a rule of property, on the faith of which the city of Memphis has acted, and others have acted, claiming under that municipality, and in accordance with which rights have been acquired and money and labor expended — after this long time, and in the face of these considerations, shall this court overrule that decision? Would it be wise? Would it be right? Would it be just? We think not.
This court was confrouted with a similar situation in 1881, when it decided the case of State, ex rel., v. Whitworth, 8 Lea, 594.
In the case of State v. Hicks, Ewing & Co., 9 Yerg., 486, 30 Am. Dec., 423, decided in 1836, the opinion of this court having been delivered by Judge Turley, it was held that the lands granted to Davidson Academy by the legislature of North Carolina were exempt from taxation for the period of ninety-nine years, whether in the hands of the original grantees, or in the hands of their vendees or subvendees. In 1881, the
“The State, the county, and the city have acquiesced in it for over forty years. Upon its correctness capital has sought investment in that ‘territory,’ and built val- ' uable improvements thereon. The petition makes a solemn admission that since 1836 ‘this decision has been treated by the profession as settling the question that this property was exempt from taxes for the State, county, and city.’ It has to all intents and purposes become a rule of properly, so far as a decision of the highest court in the State can make and establish that rule. While a court should not hesitate to overrule a decision which has been recently made, when fully con*457 vinced that it is erroneous, rather than perpetuate error, yet a very different principle prevails when it has been acquiesced in for many years and established a rule of property. Judge Catron, in delivering the opinion of the court in the case of Talbot v. McGavock, Lessee, 1 Yerg., 277, referring to the decision of the court in the case of Napier, Lessee, v. Simpson, 1 Tenn., 448, says That he understood the bench and the bar, the legislature and the community, to have acquiesced, during the intermediate period of twenty years, in that decision as being the law, and a correct construction of the act of 1797, and that, with all possible deference to the opinion of others, it should not now be disturbed, independent of any doubts that may be entertained of its correctness.’
“In 1840 Judge Reese, in delivering the opinion of the court in the case of Smith v. McCalls Heirs, 2 Humph., 166, referring to the case of Talbot v. McGavock, says: ‘If we doubted, as we do not, the correctness of the judgment in that case, we should still yield to its authority. A greater evil can scarcely be imagined than an habitual fluctuation in judicial opinion as to questions affecting the rights and regulating the conduct of a whole community in relation to real property.’
“In 1870, Judge Shields, a special judge, who delivered the opinion of the court in the case of Sherfy v. David Argenbright et al., although overruling some decisions of the supreme court of Tennessee, made directly after the close of the war, in relation to the validity of con*458 tracts founded upon the Confederate treasury notes, clearly recognizes the soundness of the law, as held by Judges Catron and Reese, in this strong language: ‘When a decision or a series of decisions have established a rule of property, and more particularly, a rule affecting the title to real estate, which has become generally known, and has been acted upon, such a landmark should not be disturbed.’ 1 Heisk., 143, 2 Am. Rep., 690. See, also, the opinion of Judge Whyte, in the case of Nelson v. Allen, 1 Yerg., 376. The exceptions to the rule, as thus established by the judicial decisions of the supreme court of Tennessee, may be found in the cases cited in the brief of counsel of Vance v. McNairy, 3 Yerg., 197, 24 Am. Dec., 553, and of Mitchell v. Lipe, 8 Yerg., 179, 29 Am. Dec., 116, but Judge Green, in delivering the opinion of the court in the case of 8 Yerg., overruling his opinion in the 3 Yerg. case, says: ‘We feel the importance. of adhering to former adjudications, and the mischief which results from a fluctuation of opinion on any question, yet question will sometimes occur where a point may be adjudicated without the benefit of all the authorities which could shed light upon it, and when a reconsideration of it is highly proper.’ It is thus plainly seen that the reasoning of the learned judge, so far from forming a rule, tends to bring that case within an exception to what he acknowledges to be a sound and well-established rule of law.
“Chancellor Kent says: ‘If a decision has been made*459 upon solemn argument and mature deliberation, tbe presumption is in favor of its correctness, and tbe community have a right to regard it as a just declaration ■or exposition of tbe law, and to regulate tbeir actions and contracts by it. It is by tbe notoriety' and stability ■of sucb rules that professional men can give safe advice to those who consult them, and tbe people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle tbe great landmarks of prosperity.’ 1 Kent, 415.
“Cooley, in bis work' on Constitutional Limitations, says: ‘It will, of course, sometimes happen, that a ■court will find a former decision so unfounded in law, so unreasonable in its deductions, or so mischievous in its consequences, as to feel compelled to disregard it. Before doing so, however, it is well to consider whether the point involved is such as to have become a rule of property, so that titles have been acquired in reliance upon it, and vested rights will be disturbed by any change; for in such case it may be better that the correction of the error be left to the legislature, which can control its action so as to make it prospective only, and thus prevent unjust consequences.’ Cooley on Con. Lim., 52. Judge Bronson, in the case of Sparrow v. Kingman, 1 N. Y., 242, says: ‘That after an erroneous ■decision touching the rights of property has been followed thirty or forty years, and even a much less time, the courts cannot retrace their steps without commit*460 ting a new error nearly as great as the one at first.’ The construction given to a statute of a State by the highest judicial tribunal of such State is regarded as a part of the statute. See 2 Black, 603, and a long list of authorities cited.”
Again: “A decision of this court which for eleven years has constituted a rule of property, of frequent application affecting titles to real estate, should be adhered to after repeated recognitions by this and the other courts of the State, regardless of whether it was originally correct or incorrect.” Case v. Joyce, 89 Tenn., 337, 16 S. W., 147, 12 L. R. A., 519, citing and approving Sherfy v. Argenbright, 1 Heisk., 143, 2 Am. Rep., 690; Atkinson v. Dance, 9 Yerg., 427, 30 Am. Dec., 422; Thompson v. Watson, 10 Yerg., 368; and Smith v. McCall’s Heirs, 2 Humph., 163-166.
And as said by Mr. Justice Brown of the supreme court of the United States, in a celebrated case (Pollock v. Farmers’ Loan & Trust Co., 158 U. S., 689, 15 Sup. Ct., 912, 39 L. Ed., 1108) : “I have always entertained the vieAV that in cases turning upon questions of jurisdiction, or involving only the rights of private parties, courts should feel at liberty to settle principles of law according to the opinion, of then existing members, neither regardless of, nor implicitly bound by, prior decisions, subject only to the conditions that they do not require the disturbance of settled rules of property. There are a number of questions, however, which it is more important should be settled in some way than that
We must therefore adhere to Mayor and Aldermen of Memphis v. Wright as establishing a rule of property controlling the strip of land in controversy. It follows that the city does not, in respect of that property, sustain toward the complainants the relation of trustee, as alleged in the bill, and that -the complainants do not sustain the relation of beneficiaries in such special trust, hud that they cannot maintain the bill on that theory; and, further, it must be held, under the authority of the case referred to, that the city is the owner of the property, and had the right to make any disposition of it authorized by its charter. This is true both as to the “public promenade,” and the “public landing;” the principle being the same as to each piece of property.
The powers given to the legislative council of' the city under the acts referred to, so far as-they bear upon the present case, are as follows “To permit and regulate the laying of railroad', tracks or iron, and the passage of railroad cars; through the taxing district, and to remove such railroad tracks if they obstruct travel or do not conform to-the laws of the taxing district; to make all suitable and proper regulations in regard to the use of the streets by street cars, and to regulate the running of the same so-as to prevent injury or inconvenience to the public- . . . to repair and keep in repair streets, sidewalks; and other public grounds and places in the taxing district; to open and widen streets, to change the location or close the same, and to lay off new streets and alleys when necessary, and to have and exercise entire-control over all streets and other public property of the taxing district; and they shall have power over all other affairs in the taxing district in which the peace, safety,, or general welfare of the inhabitants are interested.”" Acts 1879, p. 16, c. 11, sec. 3, and. page 98, c. 84, sec. 1.
It is insisted by the complainants that the contracts complained of are for too long a period, that they authorize the closing of certain streets, and the choking;
We have examined all of the contracts of the defendant companies, so far as they are exhibited with the bill, and find in them nothing that authorizes them to so impede any open street with tracks as to prevent the passage of persons and vehicles; and, so far as the city’s having surrendered its power to control such streets, we find, in each of the defendants’ contracts filed with the bill, a careful reservation by the city of its police powers over the territory which forms the subject of the contract; nor could the city legally annul these powers which it possesses, or for any consideration agree to forego them. Moreover, the authority is ample for the removal of such obstructions, if there be any, to the extent indicated, on application of the State by bill in equity (Metropolitan City R. Co. v. Chicago, 96 Ill., 627; Atty.-Gen. v. London, 8 Beav., 270; Atty.-Gen. v. Forbes, 2 Myl. & C., 123; Atty.-Gen. v. Galway, 1 Molloy, 103; United States v. Duluth, 1 Dill., 469, Fed. Cas., No. 15,001; People v. St. Louis, 10 Ill., 351, 48 Am. Dec., 339; Newark Aqueduct Board v. Passaic, 45 N. J. Eq., 393, 18 Ath, 106; Georgetown v. Alexandria Canal Co., 12 Pet., 91, 9 L. Ed., 1012), or by indictment in the
As to the length of time the contracts have to run, this is a matter in which the present complainants have no special or peculiar interest different from that of any other of the inhabitants of the city of Memphis, and hence they have no right to present a bill upon the subject. Patton v. Chattanooga, 108 Tenn., 197, 65 S. W., 414. If the city has exceeded its corporate powers in this regard, the matter is one for interference by the State upon a bill filed for that purpose by the attorney-general.
As to the closing of streets, this is likewise a matter in which complainants have shown no special or peculiar interest different from that of other inhabitants of the city, and, for the reasons above given, they have no right to maintain a bill based upon that feature of the case. Patton v. Chattanooga, supra. If the city has exceeded its powers, this is likewise a matter for correction upon a proceeding instituted in the name of the State. It is true that, where there is an obstruction put upon a street which unlawfully impairs the easement of access of an abutting owner to his property, he may have his action for damages (Railroad v. Bingham, 87 Tenn., 522, 11 S. W., 705), and, from time to time, continuous actions of this character, until the nuisance is abated (Harmon v. Railroad, 87 Tenn., 614, 11 S. W., 703); and if he own the fee to the center of the street, and a new or additional burden is put upon it, as the
It results that we sustain the second, third, and fourth grounds of demurrer.
Having thus held that the complainants do not sustain such a special or peculiar relation to the matters in controversy as that they can maintain the bill, we do
It follows that, upon the grounds stated, the complainants’ bill must be dismissed, with costs.