Monday, January 01, 1990

1987 Center City Development Plan for the Riverfront Sub-Area

Here is the entire text of the Center City Development Plan for the Riverfront Sub-Area, January, 1987, by Venturi, Rauch & Scott Brown and others.

HTML version: [click here] Although our pagination and formatting doesn't match the original document, the HTML text is complete and accurately reproduced.

Original (added 6/07): Click here for the entire document scanned into a PDF file (803 KB). Click here for letter-size versions of the double-page maps (847 KB). They are also downloadable individually at the end of this HTML page.


CENTER CITY
DEVELOPMENT PLAN


DOWNTOWN
MEMPHIS
TENNESSEE

VENTURI, RAUCH AND SCOTT BROWN
KILLINGER KISE FRANKS STRAW
ARTHUR D. LITTLE, INC.
URBAN PARTNERS
WILLIAMSON / AWSUMB
TENNESSEE VALLEY CENTER
ROBERT L. MORRIS

PLAN FOR THE
RIVERFRONT SUB-AREA


WILLIAMSON / AWSUMB
JANUARY 1987



CONTENTS

A CITY AND ITS RIVER

A. GENERAL RECOMMENDATIONS
1. Public Places, Civic Places
2. Historic Character
3. Scale
4. Views and Vistas
5. Rivers Edge—Inner Grid Linkages
6. Landscaping
7. Lighting
8. Signage

B. GUIDELINES FOR KEY ELEMENTS
1. The Cobblestones
2. Riverside Drive and Torn Lee Park
3. The Bluffs and the Bluff Walk
4. Pedestrian Bridges
5. Confederate Park and West Court Street
6. Front Street (Union Avenue north to Adams)
7. Aquarium on Mud Island
8. Vietnam Memorial
9. Wolf River Harbor (Monorail north to Auction)

LIST OF MAPS AND FIGURES
Map 1. Site Plan
Map 2. Pedestrian Circulation
Map 3. Vehicular Circulation—Inbound
Map 4. Court Square to the Cobblestones
Fig. A. Pedestrian Bridge across Wolf River
Fig. B. Cobblestones
Fig. C. Wolf River Harbor
Fig. D. Bluff Walk with Housing
Fig. E. Incised Bluff Walk
Fig. F. Bluff Walk between Huling and Vance


A CITY AND ITS RIVER


The Memphis riverfront is completely unique with its unspoiled natural amenities, its lack of industrialization, and its general accessibility and proximity to Downtown. Historically, the river and the bluffs determined the very establishment of the city at this point. Favored by the natural beauty of the river and a dramatic view to the fertile Arkansas flood plain, the Memphis riverfront offers young and old a serendipity for the senses and an easy escape to nature.

Although the original economic value of the riverfront and its hubbub of commercial activity have changed, the riverfront has, luckily, not been hardened by unsightly industrialization. Through its close physical relationship, Downtown Memphis has always been closely tied to its riverfront. The riverfront is Downtown’s greatest unrealized physical asset—its main competitive edge. Still a rich, virtually unspoiled resource for the future of the city, the riverfront is a reminder of its heritage, a powerful symbol, and a link to new economic opportunity for Downtown Memphis and the entire city.
[Back to TOC]


A. GENERAL RECOMMENDATIONS


1. Public Places, Civic Places

The Memphis riverfront is part of the Downtown "’public realm’ …the public sector seen in physical terms.”

Within the public realm itself, a differentiation can be made between public and civic, Mark Lilla defines public places as those, like the mall, market­place and beach, that "serve our shared but still private needs,” whereas civic places are where we "share places and purposes," by virtue of sharing citizenship. In the one, he says, we share private enjoyment publicly; in the other, we act civilly. [“The Public Realm in Urban Design,” Denise Scott Brown, 1985]

This distinction between the public and the civic is an important one as it relates to the design of riverfront elements. Tom Lee Park, for instance, functions as both a public and a civic place, but at different times. It serves public needs as a field for kite-flying and river watching on a Sunday afternoon; it serves civic needs during the Sunset Symphony and the barbecue' contest,

Designs for riverfront elements should recognize this dichotomy; both should be accommodated. Moreover, a variety of public and civic needs should met. Intimate public plates should be provided where crisp autumn leaves crackle beneath your feet during an arm-in-arm stroll with your sweetheart; expansive public places should be provided where so softballs soar and Frisbees fly.
[Back to TOC]

2. Historic Character

The river has shaped the city; it has made a place for it. Thus the river is at the crux of what Downtown Memphis is and what it wants to be. Yet the river's central role in determining the future has been eroded somewhat by decisions of the past that have moved the riverfront away from the spirit of its founders' dictum to keep it "forever public." Parking garages, the Post Office, and the Cossitt Library all vividly attest to this change.

The riverfront has been shaped by four epochs: the Promenade of the original town plat; the cobblestone wharf of the steamboat shipping era; the public works projects of the 1930’s (Riverside Drive and the riverfront parks); and urban renewal, parking structures and Mud Island in the Post-war period. Each of these epochs should be recognized and accounted for in new development to ensure that its imprint remains recognizable

Future development in the promenade should conform to the founders' vision of the original plat. Future uses should address the civic more than the public. The existing parking garages, for example, are public, not civic, in character. The Post Office was constructed as a Federal office building— civic in character, monumental in architecture. Today, its role as a branch postal station is simply public. The Cossitt Library's role has similarly changed from civic to public.

The Cobblestones is the city's historic "front door." It is where the cotton landed and took off. Memphis is a rarity among American river cities. Its waterfront has not followed the typical development of other similar cities, which have seen a successive hardening at their river's edge. Because of flood control measures, industrialization and tie population rise, cities nave frequently lost their riverfronts. Other cities have been cut off from their river's edge by expressways.

Luckily for Memphis, the riverfront has not been compromised over the years. The bluffs took care of the flooding problem; cotton was handled at the water's edge; the space between the river and the bluffs was too narrow for heavy industry; water-related industries moved north or south of the city. During the period of urban expressway building, the riverfront was ignored because the city's growth pattern had already shifted south and east, Fortunately, during the 50's and. 60’s the perimeter expressway system was never completed by a section along the river.

Downtown has an absolutely unique location — one where the earliest origins of the city and its present are in close juxtaposition, without the intervening industrial and automobile patterns that reduce the level of amenity in other cities.

Today the Cobblestones' role in the public realm is that of a “commons."

This is land over which different members of the community have different rights: some to cross it, others to graze it, yet others to cultivate it or gather its brush wood. Although many pre-industrial societies have commons, modern U.S. examples are hard to find. [ibid.]

On the Cobblestones, same people park while others dock. Still others use it for industry, while tourists use it for "touring." The Cobblestones should continue to be a commons. This suggests that while it should not be used solely for parking, parking should not be altogether banished either, at least in the short-term future. Rather, an interesting agglomeration of uses should be encouraged to infuse the area with vitality.

Riverside Drive and the three riverfront parks were born out of a civic desire to stabilize the bluffs and to beautify the riverfront, which had been a garbage dump at the foot of a crumbling bluff. Accordingly, the bluff face was graded and landscaped, a winding boulevard was constructed to provide a scenic motoring experience along the mighty Mississippi, and parkland was created so that one might be able to stop and enjoy the river view. Riverside Drive was built as a civic boulevard for local use, not as a major arterial; reconstruction to stabilize the roadbed should not he required to meet state standards for a four-lane arterial, but should he guided by and designed to preserve its character as a civic boulevard.

The four riverfront parks (Confederate Park, Jefferson Davis Park, Tom Lee Park, and Mud Island) are not neighborhood public parks; they are great civic parks with unused potential. Much of their civic potential lies in the way. They can be connected to Ike city's urban fabric through processional routes and carefully delineated axes. These are described at greater length later in these guidelines; their implementation will entail some redesign of the parks. The redesign should cover the civic as well as the public aspects of their use.
[Back to TOC]

3. Scale

The flowing currents of the Mississippi and The sweeping scale of the river and the Arkansas flood plain, suggest that the major elements of the riverfront be developed boldly, It is important that the riverfront "read" from distant vantage points: Hernando De Soto Bridge; Ashburn Park; the top floor of skyscrapers. In this way, we build up a mind's eye image of the relation of various riverfront elements to each other, which in turn helps us find our way about the riverfront by orienting ourselves to a particular landmark already found.

Conversely this grand scale can be so overpowering that we can lose our sense of place as an individual—an uncomfortable feeling indeed. Imagine for a moment that you are alone in the center of an empty Houston Astrodome. The scale of the Memphis riverfront is far greater. Thus it is important that we provide in all our design human-scale details which can anchor a person in this vast space. Even though the cobblestone wharf is expansive, we can relate to it because it is composed of individual cobblestones about as large as a pair of footprints.
[Back to TOC]

4. Views and Vistas

Tie riverfront is Memphis’ treasured repository of views. Few urban areas can offer views of such unlimited distance-as looking up or down the river or across the Arkansas flood plain.

There is an order to the views and vistas of the riverfront area. Approaching the river, one experiences a series of vistas. From the river and riverfront there are memorable views eastwards of the city. Views up and down the river give a true sense of the sweep of the mighty Mississippi and thus are more dramatic than views west across the river from within the city grid.. Framed by buildings, these views give no feel for the river's linear character—the water we see could be a small lake.

Designers active across the riverfront should be cognizant of the views and vistas diagrammed 'in liie Urban Design and Planning issue area report. The planting of trees along Riverside Drive and in the riverfront parks should be carefully planned with their mature size in mind to prevent eclipsing views and vistas in years to come,

Designers should walk their site and look freshly at the river, Arkansas, and the downtown skyline. Preserve the views: identify new vistas and frame them with the elements of the design.
[Back to TOC]

5. River's Edge—Inner Grid Linkages

For the riverfront to be a true asset to Downtown, it must be a place to be, as well as a place to look at. We must therefore make it easy to react. The original plat placed a grid of streets oriented to the river atop the bluff, "with a promenade, connecting bluff top and river's edge. This historic grid's pattern of linkages to the river should be reasserted and strengthened, preserving the contrast between the regular pattern of streets and the freedom of the river and its edges.

The Riverfront Sub-Area Plan presents a connecting framework within which opportunities to reach the river are maximized and obstacles are minimized. Opportunities include: lower West Court Street (historic mule route); a new emphasis on the pathway from Court Square to Confederate Park (strengthened through redesign of Confederate Park); a new pedestrian connection to Mud Island on axis with Monroe Avenue (another historic route); a processional route along Beale Street connecting Church Park with Tom Lee Park; and a new pedestrian route from the National Civil Rights Center to a new Tom Lee Memorial along the Huling Avenue axis (common themes of interracial cooperation).

Pedestrians trying to move between downtown and the river encounter not only the topographical fact of the bluff but also the railroad tracks and Riverside Drive. Several measures can minimize the obstacles although some danger to pedestrians will remain. The plan proposes that the railroad's west track be removed and replaced with a paved path that at the outset would provide a dedicated north-south connector for bicycles and pedestrians. It should be designed to accommodate a future rubber-tired "people-mover" for the day when large numbers of people will want to move along the riverfront. A light rail system should not be utilized to move people through this corridor; it would negate the benefits to the pedestrians gained by eliminating the railroad track. Pedestrian crossing points over the remaining track should be very clearly designated and paved, with the paving kept flush with the lap of the railroad rails. The CCC should discuss with the railroad measures to reduce hazards to pedestrians as use of the riverfront increases.

In certain areas, such as Wagner Street between Union Avenue and Beale Street, new uses such as restaurants and housing exist side by side with older commercial uses, such as warehouses and their associated loading docks and truck traffic. In the short-term future this juxtaposition of uses should be allowed to continue. It can even lend a sense of atmosphere and romance to the downtown scene. In the long term this area may lose its economic appeal as a warehouse district and other new uses will emerge. In the case of the Goldsmith's warehouse on Wagner Street, mixed use such as retail at street level with housing above would be appropriate.

Proposed improvements to Riverside Drive should be in. keeping with its civic character. The section from Beale Street north to Jefferson Avenue "should not be widened, in order to prevent incursion into the historic Cobblestones and to lessen the distance the pedestrian must cross. At-grade pedestrian crossings have been generally recommended at the location of existing streets. This helps reinforce the connection of the Historic grid with the riverfront as well as takes advantage of existing or proposed traffic control devices. Pedestrian crossings should be delineated by textural changes in paving. These crossings should be given further visual emphasis through the incorporation: of special lighting standards which call attention to the pedestrian way, such as the flashing "Belisha Beacons" used extensively in England.

Above all, the temptation must be avoided to deal with the problem of pedestrian crossings by elevating Riverside Drive. While such a proposal might solve the vehicular pedestrian conflicts through grade separation, the resulting visual and psychological amputation of the waterfront from the core of Downtown would be disastrous.

Pedestrian bridges over Riverside Drive are proposed only where traffic-control devices for at-grade crossings are inappropriate, such as where there is no intersecting street, or where an unusually high hazard to the pedestrian exists. Four locations have been identified: Ashburn Park (to connect the bluff top wall with the riverfront walk at the south end of the riverfront); Butler Avenue; Vance Avenue; and Confederate Park (to connect it to Jefferson Davis Park). The bridges are discussed in greater detail in the guidelines. Also a new pedestrian bridge across Beale Street is proposed as a vital link in the bluff walk.
[Back to TOC]

6. Landscaping

Trees on the riverfront provide shade, frame views and vistas, and establish buffer zones, but careless use of planting can block views and vistas.

Whenever possible, indigenous or proven species that are hardy and maintenance-free should be selected. If exotics must be used, management provisions must be made for routine maintenance (water, fertilizer, pruning, etc.). Plantings should be appropriate to their site in terms of microclimate, intensity of use by people, mature size, etc. For example, flowers planted in the recently constructed Mid-America Mall planters will die no matter how much their automatic sprinkler runs because the microclimate on sunny summer days is inimical to their survival; crepe myrtles planted several years back in Tom Lee Park were trampled to death by the crowds during civic celebrations.
[Back to TOC]

7. Lighting

Lighting, properly designed, can add sparkle to Downtown. To create sparkle there must be a hierarchy of lighting. Uniform, very high intensity lighting along the riverfront is not a panacea for the issue of safety and security and can result in monotony rather than enhanced drama. Instead, a moderate ambient lighting level should be sought, sufficient for public safety, with carefully illuminated highlights of civic importance (e.g., the Post Office building, Jefferson Davis statuary, etc.) to the floodlighting of landmarks to atmospheric glows.

The river itself provides a wonderful opportunity to animate our image of Downtown. Gently undulating river currents reflecting the carefully placed sparkling lights of floating restaurants, river’s edge kiosks, bridges (including the current lighting of the Hernando DeSoto Bridge), boats, and docks can create an enchanting mid-summer night’s aura. The illumination of the concrete bulwarks of Mud Island should also be considered; this would lend shape and form to what is now a rather dark hulk on the river.

Atmospheric lighting of tree canopies should be considered for appropriate civic locations, including Court Square, Confederate Park, and perhaps even selected trees along the bluff south of Beale Street above Riverside Drive.
[Back to TOC]

8. Signage

The guidelines contained in the Urban Design issue are describes the three elements of the signing system—private, public, and civic. Signing along the riverfront will be primarily public and civic, The character of riverfront signs should be consistent with those throughout the Downtown area, yet possess its own identity.

Signs for parking in the riverfront area should be an integral part of the Downtown parking signing system and should be identical in design to the others, so as to minimize confusion. In addition, specially designed large-scale signage should be used to help animate the existing parking garages along Front Street. These signs should be large enough to help transform the entire facade to which they are applied, and should be illuminated, perhaps using neon lighting.

The civic signs should be part of the Downtown “family” of civic signs, perhaps using similar colors, sizes and/or shape. (See civic sign designs in Beale Street—Peabody Place Sub-are Plan.) However, some distinguishing element should set them apart as “riverfront” signs, perhaps a distinctive curvilinear profile which imbues them with the character of the Mississippi.

Because of the historic nature of the riverfront, many of its civic signs will be interpretive. A network of signs documenting thje historic development of the riverfront should be created and an accompanying “walking tour” brochure might then be prepared to guide the interested visitor along the riverfront. Suigns on the riverfront should give information fopr attractions on Mud Island.

Signs should articulate the historical reasons for the physical form of the city. The visitor should learn the reason for the extra width of West Court and Monroe Avenues (both of which were used by mule teams pulling cotton bales up from the wharf), or of how the Cobblestones came to be built (the stones were used as ballast by early riverboats).
[Back to TOC]

B. GUIDELINES FOR KEY ELEMENTS



1. The Cobblestones

Preservation of the historic Cobblestone wharf is of paramount importance to the character of the Memphis riverfront. Physical modifications to accommodate new uses for this “commons” area should be of a minimal and non-intrusive nature.

High on the list of priorities should be the simple restoration of the Cobblestones. The rate of deterioration is accelerating, noticeably even during the two-year duration of this planning study. During the restoration process, structural provisions should be made that will permit the paddlewheel riverboats to dock once again at Memphis' front door, rather than downstream at Edgar Point.

The pedestrian bridge to Mud Island should be designed to touch the Cobblestones lightly, and then soar gracefully over the Wolf River with a gossamer structure. The structure should begin at the level of Riverside Drive and clear-span the Cobblestones as they fall away. (If necessary to allow headroom below the bridge at the upper edge of the Cobblestones, the bridge may need to spring from a "pedestal" elevated slightly above the level of Riverside Drive.) A support should be located in the Wolf River just beyond the low-water point, to avoid the image of a bridge left "high and dry' (See Figure A.)

Figure A

Walkways should be used sparingly. Their material should be complementary to the Cobblestones, probably wood. They should be level where they parallel the river and form a section of the riverwalk. We propose that this walkway system be breached for a brief stretch, say ten feet, so pedestrians can experience the texture of this historic wharf. Sometimes in our bus-tour culture we forget to get out and touch the world.

A "history wall" should be constructed at the head of the slope to interpret the history of the riverfront wharf. It should not stretch the full length of the Cobblestones, but should be related to the pedestrian bridge to Mud Island. The surface of the wall should be smooth slate, marble, or limestone, and it should contain historic descriptions, quotations, and perhaps images engraved through a. laser process into tie wall's surface. (See Figure B.)

Figure B

Nearby might stand a commissioned sculpture depicting a grizzled mule driver, his team of mules, and their load of cotton bales being dragged up the Cobblestones. The sculpture should be life-sized and realistic to impress upon the visitor what the Cobblestones might have been like during its heyday as shipping wharf.

To animate the Cobblestones, its function as a wharf should be revived, with docks for large pleasure boats and floating structures which would ride the rising and falling river level. We see it as funky, diverse, and evolutionary. It could grow incrementally. It would be a little of Hong Kong in character, but all Memphis in culture. It should sparkle at night with light reflected, in- the river, shimmering; seafood and steak aromas should tickle your nose while waves lap and burble through ihe wooden slats at your feet. (Figure C.)

Figure C

Foot-pedaled paddle boats and small sailboats do not belong in this area because of danger from commercial traffic. Their use is envisioned in the Wolf River Harbor marina area mentioned elsewhere in the guidelines.

Portable kiosks, on self-leveling platforms, would be placed on the Cobblestones themselves. These colorful architectural delights might be constructed of wood or canvas, and could sport flags, awnings, or anything to add a sense of the kinetic. They could be relocated during periods of high water. Their use could span a wide range—food venders, crafts fair, etc. Again, a touch of the funky and informal would be quite appropriate.

In order to attract entrepreneurs to the waterfront and to enable them to finance new construction, the present City policy against long-term leases should be abolished.

For the short-term future, parking should be permitted to remain on this public commons, but it should be restricted to areas to the north and south ends of the Cobblestones. As the festival wharf becomes more vigorous, parking may need to be designated for its users; office workers should be provided additional spaces elsewhere as part of a comprehensive parking plan. The long-term goal should the removal of all automobiles from the Cobblestones.
[Back to TOC]

2. Riverside Drive and Tom Lee Park

Whether the Corps of Engineers will undertake a riverfront bank stabilization project is most uncertain at this juncture and should be carefully scrutinized by river hydrologists and morphologists. It places in question the south end of the riverfront. Our comments here are based upon the assumption that the project will proceed, and that an additional 200-400' of fill will be placed in the river behind a massive masonry dike, as currently proposed.

Although it is regrettable that the soft quality of the river's natural edge may need to be hardened because of the need for erosion control measures, the new bank is a rich opportunity. The character of the new river edge should be elegant yet urban; hard yet curvilinear, A new quay should step down to the water with provisions for the docking of small pleasure craft, and stairs should then lead up to Tom Lee Park. The new land area provided by the Corps of Engineers should be designated as parkland incorporated into a redefined and redesigned Tom Lee Park and maintained by the Memphis Park Commission.

Because Tom Lee Park serves a broad range of public and civic uses, its redesign must provide an equivalent diversity of spaces and places. Such' variety will avoid the feeling of a monotonous mown lawn reminiscent of an enormous triple size football field. It should be sensitive to the issues of scale discussed earlier, and it should contain spaces amenable to intimacy as well as to grandeur.

The many civic events held in Tom Lee Park should not be removed from the park because they tax its facilities; the facilities of the park should rather be redesigned to accommodate its civic uses. The main concern seems to be the abuse of the grass surface of the park. The recommended solution is to harden up to 25% of the park with paving and designate this area for civic occasions.

The pattern and design of the paving Is an especially important consideration because this area will be looked down upon from the bluff walk and overlooks, and it will be very large with the additional acreage. The paving should be patterned in such a way as to mediate the vast scale of the river and the human scale of the persons who use it. It should be pleasant to walk on as well as pretty to look at. A variety of surfaces should be used to break up the vastness and create places for a variety of activities. The paving type should match the intended uses; masonry pavers with sand joints might be appropriate in one area and concrete in another. Some paved areas may be for walking or bicycling, others for the congregation of large numbers of people. The use of "chlorophyll paving"— perforated paving blocks through which grass grows, creating a natural erosion-resistant green surface— should also be considered.

The redesign of the park should provide far a variety of public activities including picnicking, Frisbee throwing, badminton, volleyball, touch football, soccer, and softball. Restrooms and one or more shaded pavilions for inclement weather should also be included. A jogging path should be provided along the river edge in concert with the continuous riverwalk (see Maps 1 and 2). Next to Riverside Drive a bicycle lane should be set aside. A new Tom Lee Memorial should be constructed on a subtle “bulge” in the river’s edge, on axis with Huling Street with an implied link to the Lorraine Civil Rights Center (see Map 1). An at-grade pedestrian crossing of Riverside Drive with steps up the bluff would serve as a link to the overlook at the top and direct the visitor on down Huling Avenue to the Civil Rights Center.

Rather than relocating the existing Tom Lee obelisk to this river’s edge site, a new memorial should be commissioned, perhaps through a design competition. In addition to the commemoration of Lee's heroic act, the design should respond to its prominent site and to the theme of interracial cooperation which is shared with the Civil Rights Center.

If the selection of Mud Island as the preferred site for the Vietnam Memorial proves not to be feasible, the first alternate choice would be to use Tom Lee Part far this purpose. In lieu of a new Tom Lee Memorial.

The civic nature of a redesigned Riverside Drive has been previously discussed; how then does it fit into Tom Lee Park? Parking and pullovers should be designed at the park to accommodate not only the motorist who arrives with Tom Lee Park as a destination, but also the passing motorist who is suddenly seized by the spectacular beauty of a Mississippi River sunset. Care should be taken, with the landscaping of Tom Lee Park not to block the view of Riverside Drive motorists.

South of Beale Street, Riverside Drive should be structurally stabilized and leveled to improve safety. Its width should not exceed 60 feet, consisting of four lanes of 12 feet each with a 6 to 12 foot-wide landscaped central median. The existing curve immediately south of Beale Street should remain and the speed limit of 40 m.p.h. should not be increased. At the Beale Street intersection, the median should be discontinued and Riverside Drive should revert to its existing-configuration.

Signage and signalization should be employed to encourage northbound traffic to turn east onto Beale Street rather than continuing along Riverside Drive.

The proposed ramps connecting Interstate 40 on the north end of Riverside Drive should be abandoned in favor of the improvements to the existing arterial system recommended in the Transportation section of the Plan. Adams Avenue should remain open to both eastbound and westbound traffic.
[Back to TOC]

3. The Bluffs and the Bluff Walk

The Chickasaw Bluffs south of Beale Street are Memphis’ most valuable and striking natural resources. It is desirable to preserve free public access to the bluff-top wherever possible, consistent with appropriate and much-needed private development. To the maximum extent possible, a continuous pedestrian walkway should extend along the top of the bluff.

As shown in Figure D, a bluff-top walk need not be incompatible with bluff-top housing, By holding the housing back from the brow of the bluff and utilizing the second floor as the first living level, the two can coexist nicely. Second floor decks and balconies can in this way capitalize on the view while maintaining privacy and security from the public walk below. The ground level can then be given over to service functions such as parking, laundry rooms, storage, etc.

Figure D

Proposals to incise sections of this walkway into the face of the bluff should be rejected. Not only would such walkways permanently scar the bluff face as seen from the river edge below; but they could also result in the destabilization of the bluff itself. The bluffs are deceptively fragile due to their geological character. Formed of wind-borne alluvial soils known as loess, the bluffs are highly vulnerable to erosion. In the event of a severe earthquake they may prove unstable. An incised walkway will only aggravate this inherent instability and could pose a threat to bluff-top development.

The issues of erosion and seismic instability of the bluffs are crucial ones, which are beyond the scope of these Guidelines. Great caution should be exercised to avoid wrong action that could destroy the amenity that brings development in the first place. Before making any final plans which involve excavation or modification to the bluff face, a thorough study by a qualified soils engineer is essential. It is probable, for example, that any retaining wails will require a system of foundation drains.

If certain sections of the Bluff Walk are to be incised into the face of the bluff (see Figure E), then it is crucial that steps be taken not only to stabilize the slope against erosion, but also to avoid creating a visual scar across the bluffs as seen from the river edge below. This can be accomplished in part by the use of retaining walls which allow the growth of vegetation on their surface, and by the use of heavy timbers, cement-filled sandbags or other earthy materials to form banks, steps and curbs. The use of concrete and asphalt should be avoided.

Figure E

In order to Minimize erosion, preserve an appropriate separation between the public walkway and the semi-private outdoor spaces of housing on the bluff top, and to preserve the natural esthetics of the bluff top, no incised walkway should be built along the “military brow” of the bluff but should be kept at least two thirds of the way down the bluff.

The surface should be suitable far walking and jogging. Natural materials such, as crushed walnut hulls or pea gravel held in place by metal edging strips will strike the right natural, park-like tone.

At frequent intervals the Bluff Walk should be seamed together with the vehicular circulation system at the new parking nodes. At these and other locations as determined by river views, overlook points should be established. These overlooks could be furnished with seating and perhaps coin-operated telescopes, and should be designed for handicapped accessibility.

As shown on Map 2, the Bluff Walk should move inland between Hulling and Vance Avenues, and run between the existing Riverbluff Condominiums and the railroad. Figure F indicates the way in which a separation between the pedestrian circulation and the "people-move” path can be achieved, using a low, wide planter-wall.

Figure F
[Back to TOC]

4. Pedestrian Bridges

Pedestrian bridges aver Riverside Drive and across the Wolf River Harbor are recommended at a number of locations. These bridges should all be thought of as members of the same family and a similar design approach should be common to all. (See Figure A and Maps 1 and 2.)

In general, these bridges should be of a skeletal design with an airy, tensile quality. Steel should be used for the spanning elements, which should be designed as trusses. Some variety among the different bridges is desirable, as long as it emerges in direct response to circumstantial considerations such as span, clearance height, or spring point. Use of color and lighting should be made to give each bridge a festive character. Restrained design allusions to the existing bridges across the Mississippi could be appropriate.

While the spanning elements of the bridges should be skeletal in construction, their abutments should, by contrast, be of masonry to suggest firmly anchored foundations. Stone, brick and concrete materials should be used depending on the specific context. For example, a stone abutment rising out of the Cobblestones on the east side of the Wolf River Harbor might have a concrete counterpart on the west side at the Mud Island embankment.

ln the case of the new pedestrian bridge over Beale Street, it should be possible to utilize the existing stone piers adjacent to the railroad trestle. From the north end of this bridge, stairs should descend to a pedestrian crosswalk across Riverside Drive.

The bridges across Riverside Drive should not spring from the very top of the bluff, but from the midpoint. In this way they can connect directly to any incised sections of the bluffwalk and will have less visual impact on the crest of the bluffs, The design of these bridges must not be unduly constrained by inappropriate governmental requirements such as those applying to bridges over interstate highways, If fencing is required for security, then careful attention should be paid to its design. Chain link fencing, for example, should be studiously avoided wherever possible.
[Back to TOC]

5. Confederate Park and West Court Street

The formal visual axis already implied by the alignment of Court Square with Court Street (east of Front Street) should be extended west of Front Street through Confederate Part and on across Wolf River Harbor where it would be terminated by the mass of the Mud Island amphitheatre.

In order to accomplish this, Confederate Park should be redesigned. The statue of Jefferson Davis should be relocated along this axis as a counterpoint to the Court Square fountain, and a new bluff-top overlook point should be created at the west parapet using stone work to match the existing. As suggested in Map 4, the pedestrian pathway should jog at Front Street rather than continuing in a straight line along the visual axis. The Civil War theme of the park should be preserved and strengthened as an integral element of the city's past. The decrepit and inappropriate twentieth-century artillery pieces should be removed and replaced with authentic cannons such as those employed in the Battle of Memphis. Interpretive signage and visual imagery should be provided to explain the tactics of this battle to the visitor.

The existing stairs at the southwest and northwest of the park should be restored and lighting should be provided. The existing stone parapet walls should also be restored. The abutment of the new pedestrian bridge across Riverside Drive should be constructed of stone to match tie existing stone of these walls.

West Court Street between Front Street and Riverside Drive should be restored to its original cobblestone paving, which may well lie beneath the existing asphalt topping.. The existing stone wall along the south side of the street should be enlivened with graphic images showing scenes from the days when this street was used to haul cotton from the riverfront up to Front Street. Although the street should remain open to traffic, its use as an important pedestrian gateway to the riverfront should be-recognized and encouraged by the installation of a traffic signal and crosswalk at the intersection of Riverside Drive. Perhaps this crosswalk could also be paved with cobblestones, thus visually demarcating the pedestrian path and exerting a "speed break" effect on traffic.
[Back to TOC]

6. Front Street (Union Avenue north to Adams)

Front Street has great unrealized potential. Not only does it link the Orpheum, Cossit Library, the Post Office, Civic Center, Auditorium, and Convention Center, it also affords panoramic views of the river.

Design guidelines for Front Street need to be separated into short term and long term versions. Long term guidelines are predicated on the aspiration that it could once more become the civic treasure envisaged by the founders when they established the Promenade. Short term guidelines recognize that the long term transformation will entail major alterations and are intended to forestall future development which would conflict with the long term objectives,

In the long term the west side of Front Street should revert to a Promenade consisting of wide expanses of park-like open space with unencumbered river views. Of the present structures, only those possessing a civic character should be preserved. These include the Post Office and perhaps the surviving fragment of the original Cossitt Library. All others including the parking garages, fire station and modern addition to the Cossitt Library should be demolished as they become obsolete or begin to need major repairs.

After demolition these sites should be replaced as parks. following the precedent of Confederate Park. At tie bluff edge handsome stone parapets should be constructed. Walkways should make frequent connections to [F]ront Street to encourage pedestrians to meander away from the street to experience the river views and breezes.

It is possible that the comprehensive downtown parking study recommended elsewhere may determine that there will be an intense need for parking in this area in the long term future. Should this be the case, below-grade parking should be developed beneath the new Promenade as sites become available. This new parking should not, however, be allowed to destroy the natural bluff face on the west. Vehicular entrances should be Limited to east-west streets to help preserve a pedestrian orientation for Front Street. In the meantime, it may be possible to find new civic uses for portions of the parking garages. Perhaps their street levels could be used as farmers’ and crafts markets or a cotton museum, thus enlivening the civic linkage system and drawing tourists up from Mud Island and the river,

In the short term no action should be taken that is inconsistent with these long term guidelines. The existing parking garages and fire station should not be expanded. nor should major capital improvements be made that would increase the value of the modern library addition. The original library building and the Post Office, on the other hand, should be preserved. As new civic uses are found for these two buildings (see the Cultural Resources section), appropriate renovations and adaptations should be made. In front of the Post Office the over-complicated maze of forgotten war memorial planters, ramps, steps, and vehicular pullovers should be redesigned into a simple, dignified forecourt in keeping with the neo-classical design of the building. The red granite should be replaced with marble to match the building facade.

The fountain and reflecting pool in front of the Cossitt Library should remain and should be kept clean and operating while the wire fence along the sidewalk should he replaced with a seat -height stone wall, A new stairway should be constructed from the south side of the old Cossitt Library down to the sidewalk on the north side of Munroe Avenue, thus providing a more direct route to the Cobblestones and the new pedestrian bridge to Mud Island.

The facades of the parking garages should be enlivened with large-scale signs as described in Section A.8.

The feasibility of a Front Street shuttle, similar to that proposed for the Mid-America Mall, should be explored. This shuttle would provide a link between Beale Street and the Civic Center, with stops at civic points between.

Streetscape improvements should be made with the civic character of Front Street in mind. Sidewalks and curbs should he repaired when necessary with high quality materials such as limestone aggregate concrete and granite curbs. Street trees should be planted along the west side only, thus emphasizing the street's unique "one-sidedness." Benches, seat-height walls, bus shelters, trash receptacles, lamp standards, bicycle racks, tree-grates, and the like should be provided to enhance the street's pedestrian quality, but these should be designed or selected with a sense of civic dignity in mind. The cute and faddish (e.g. "riverboat" bus shelters) should be avoided and the temptation to lease advertising space on such items on Front Street should be strenuously resisted. Street furniture should be tough and sturdy to withstand the inevitable wear and tear of weather, time, and people. Whenever possible, it should evoke a sense of local color. The "alligator gar" benches in Jefferson Davis Park set an ideal precedent. (See Beale Street-Peabody Place plan, section IV, for further public improvement suggestions.)

The new Promenade will provide many sites for public art. Local sculptors should be commissioned to fill such spaces with their work. Themes relating to local history and the river should be especially encouraged.
[Back to TOC]

7. Aquarium on Mud Island

In order to provide an additional Mud Island attraction, which would generate a large number of repeat visits, a new aquarium should be constructed on the vacant site south of the "Gulf of Mexico" on axis with Union Avenue.

The aquarium should feature fresh water aquatic life forms indigenous to the Mississippi River and surrounding region, perhaps including examples of the giant catfish, gar, and turtles celebrated in the lore of the river.

Architecturally, the aquarium should employ the forms and materials of the other Mud Island structures. A high, glazed canopy above a rooftop observation deck, which would reflect sunlight, should be considered. In scale the structure should possess sufficient monumentality to claim for itself an important place on the city skyline seen from the west. From the east it should serve to terminate the vista along Union Avenue and to help draw visitors from 'the hotel district to the riverfront, and then on across Wolf River Harbor on the new pedestrian bridge.
[Back to TOC]

8. The Vietnam Memorial

The Vietnam Memorial, to be designed through a national competition, should be sited at the southern tip of Mud Island. The design must be sensitive to this powerful, unique site as well as to the meaning of the memorial as a civic symbol. While the memorial should engender a respectful, reflective atmosphere, it should not be funereal or too somber. There, is nothing wrong with a complex juxtaposition of activities around the memorial ranging from sober meditation to picnicing.

Should the Mud Island site prove unacceptable, alternative sites may need to be considered. Possibilities, listed in order of preference, include Tom Lee Park or a bluff-top site at Huling Avenue or Vance Avenue.
[Back to TOC]

9. Wolf River Harbor (Monorail north to Auction)

This section of the harbor should be developed for increased use by recreational small craft. Beginning with the renewal of its rusting barge bolts, the harbor should be cleaned up to render it a more attractive place. Immediately north of Interstate 40 a new marina should be created on tie eastern shore. Day sailboats, rowboats, and foot-powered paddle-boats should be offered for hire. (The paddle-boats should be restricted to a small, protected area safe From potential danger from larger powered craft.)
[Back to TOC]

MAPS

Map 1
Map 1: Site Plan [Download PDF, 231KB]
[Back to TOC]
Map 2
Map 2: Pedestrian Circulation [Download PDF, 215KB]
[Back to TOC]
Map 3
Map 3: Vehicular Circulation—Inbound [Download PDF, 213KB]
[Back to TOC]
Map 4
Map 4: Court Square to the Cobblestones [Download PDF, 292KB]
[Back to TOC]

Labels: , , ,

[Read the complete article...]

City of Memphis v. Samuel Watkins Overton, Jr., et al. - Tennessee Supreme Court Opinion

Here is the text Tennessee Supreme Court Decision that affirmed the Appeals Court decision. For a better understanding of the case and the basis for the decision, as well for as a concise legal history of the Public Promenade, we suggest you read the Appeals Court decision first.

City of Memphis v. Samuel Watkins Overton, Jr., et al.

[NO NUMBER IN ORIGINAL]

Supreme Court of Tennessee, at Jackson

216 Tenn. 293; 392 S.W.2d 98; 1965 Tenn. LEXIS 658

April 7, 1965, Opinion Filed

SUBSEQUENT HISTORY: [***1]

Petition for Rehearing Denied June 28, 1965.

PRIOR HISTORY: FROM SHELBY

DISPOSITION:

Judgment of Court of Appeals affirmed.

COUNSEL:

Ramsay Wall and Thomas C. Farnsworth, Memphis, Shepard, Heiskell, Williams, Wall & Kirsch, Memphis, of counsel, for D. W. McLemore, J. Bayard Boyle, B. Snowden Boyle and Mrs. Jack L. Erb.

Armstrong, McCadden, Allen, Braden & Goodman, Newton P. Allen, Memphis, for Samuel Watkins Overton, Jr., Mrs. S. Watkins Overton, Mrs. Allen W. Phelps, Mrs. Paul Anderson, Maryanna Wells, Natalie Nickell McDermott and Melvin Hill Hayes.

James W. McDonnell, Jr., Memphis, Canada, Russell & Turner, Memphis, of counsel, for Mrs. Catherine O. McDonnell.

Patrick Johnson, Sr., Frank B. Gianotti, Jr., William W. O'Hearn, Memphis, for City of Memphis.

Henry M. Beaty, Jr., Memphis, guardian ad litem for incompetent heirs.

JUDGES:

Mr. Justice Dyer delivered the opinion of the Court.

OPINION BY:

DYER

OPINION:

[*295] [**99] This cause involves the title to certain realty located within that area dedicated by the original proprietors of the City of Memphis as the public promenade. Suit was brought by the City of Memphis as complainants against the heirs, known and unknown, of said proprietors. [***2] For brevity's sake, the City of Memphis will be referred to as the City, while the heirs will be referred to as such.

The suit apparently resulted from negotiations by the City with reference to either the long-term leasing or sale of the realty to a private corporation, for the purpose of construction of a hotel or motel. Incident to that negotiation, it developed a title guaranty policy could not be obtained due to the uncertainty of the City's title.

The particular tract of land thus involved has for many years accommodated a fire station. Although this tract is but a small portion of the total area designated as the promenade, it is apparent that whatever title the City has thereto, it likewise has to the remainder of the promenade and to the public landing area as well.

As noted by the Court of Appeals, whatever title the City has in this land, it holds [**100] as representative of the [*296] public, and same was acquired from and under the common law dedication resulting from the recording of a plat of 1820 and the sale of lots with reference thereto.

The record discloses, with one exception, that the City has never undertaken to convey the fee simple title [***3] to any portion of the public promenade or landing areas. This exception arose subsequent to a transaction known as the "Batture Compromise", the significance of which will be discussed infra. Also disclosed by the record is the fact that upon a part of the public promenade is situated a public library, having been located thereon pursuant to a declaration of trust.

On the strength of four reported cases of this Court, to wit: (1) Mayor & Aldermen of Memphis v. Wright, 14 Tenn. 497, 498 (1834); (2) Hardy v. Mayor & Aldermen of City of Memphis, 57 Tenn. 127 (1872); (3) Wilkins v. Chicago, St. L & N.O.R.R. Co., 110 Tenn. 422, 75 S.W. 1026 (1903); and (4) Union Railway Co. v. Chickasaw Cooperage Co., 116 Tenn. 594, 95 S.W. 171 (1906), the Chancellor held that, as concerns this land, a rule of property exists under which the City holds the fee simple title.

The Court of Appeals reversed, holding that if a rule of property did exist, it did not work a divestiture of the fee simple from the heirs.

As the existence and scope of this supposed rule of property is determinative of this lawsuit, it obviously is necessary to examine and discuss these cases seriatim. [***4] Such examination will be deferred momentarily so that certain underlying rules of law germane to this suit might be stated.

[*297] First, under the general rule in this State, it is elementary that where property is dedicated for a public use, the public acquires only an easement in the property dedicated. In such a situation, the underlying fee remains either in the dedicator (or his heirs), or its belongs to the abutting property owners where the easement conveyed is for a street or highway. City of Athens v. Burkett, 59 S.W. 404 (Tenn.Ch.App.1900); State v. Taylor, 107 Tenn. 455, 64 S.W. 766 (1901); Carroll County Bd. of Educ. v. Caldwell, 178 Tenn. 671, 162 S.W.2d 391 (1942); 24 Tenn.L.Rev. 1052, 1054; and 11 McQuillen, Municipal Corporations Sec. 33.68 (3d ed. 1964).

Thus, we begin with an assumption that the original proprietors of the City did not intend to surrender their fee simple ownership. Indeed it has long been recognized that a common law dedication:
    * * * consists in the right of way over the land of another, and not of an interest in the land itself; that remains in the owner of the fee, unaffected by the dedication. Scott v. State [***5] , 33 Tenn. 629, 632-633 (1854).

Second, it is axiomatic that this State has long approved of the doctrine of stare decisis. A myriad of cases so declare, including: Sherfy v. Argenbright, 48 Tenn. 128 (1870); Foster v. Roberts, 142 Tenn. 350, 219 S.W. 729, 9 A.L.R. 431 (1919); and Staten v. State, 191 Tenn. 157, 232 S.W.2d 18 (1950).

Indeed, it is unlikely that there is another single principle in our jurisprudence so well founded. Yet, as observed by the late Mr. Justice Brandeis, dissenting in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S.Ct. 443, 76 L.Ed. 815 (1932):
    [*298] Stare decisis is not * * * a universal inexorable command. 'The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible'. * * * Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. 285 U.S. at 405 -- 406, 52 S.Ct. 447.

Thus, accepting the fact that the doctrine is well established in this State, it then [**101] becomes imperative to discover its scope. In this connection, the late Chief Justice Green [***6] in State ex rel. v. Nashville Baseball Club, 127 Tenn. 292, 154 S.W. 1151 (1912), wrote:
    It is a familar principle that stare decisis only applies with reference to decisions directly upon the point in controversy. The point in controversy here * * * was not considered * * *.

    Only the points in judgment arising in a particular case before the court are precedents for future decisions. * * *

    Doubtless the doctrine of stare decisis is a salutary one and to be adhered to on all proper occasions; but it only arises in respect of decisions directly upon the points in issue. 127 Tenn. at 307, 154 S.W. at 1155. Accord, Prince v. Prince, 205 Tenn. 451, 326 S.W.2d 908(1959).


The doctrine of Rule of Property is but a subdivision of that of stare decisis. See Sherfy v. Argenbright, 48 Tenn. 128 (1870). Both are more concerned with judicial stability and predictability than with technically correct adjudications. Whereas, stare decisis generally embraces all areas of the law, a rule of property [*299] connotes a narrower feature, defined by one lexicographer as:
    A settled rule or principle, resting usually on precedents [***7] or a course of decisions, regulating the ownership or devolution of property. Black, Law Dictionary (4th Ed. 1951).

Thus, a rule of property exists only when the points in judgment arising in a prior decision are the same as those in subsequent adjudications. Hence, dictum alone will not support a rule of property. Such a rule is, of course, invoked most frequently when commercial or property rights have been acquired or adjusted pursuant to a judgment of a court of competent jurisdiction.

However, assuming the existence of an erroneous judicial rule of property, so long as no restraining consideration is present, e.g., vesting of property rights thereunder, a court should re-examine its prior statement(s) and revise same where necessary to preserve the character of the law. Sherfy v. Argenbright, supra, and Foster v. Roberts, supra. See 14 Am.Jur. Courts Sec. 126.

Bearing these principles in mind, attention will now be focused upon the four cases concluded by the Chancellor to have vested the fee simple title in the City by a rule of property.

The first decision, Mayor & Aldermen of Memphis v. Wright, supra, was purely an in personam proceeding [***8] against the owner of a flat-boat for what amounted to overparking. The original proprietors of the City of Memphis (the dedicators of the land in controversy here) were not parties to this action; nor were their heirs. Nonetheless, the Court said:
    [*300] 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 these corporators, and have vested in them all the right to dispose of, or apply to any use they may think proper, the public promenade * * * which existed in the original proprietors. 14 Tenn. at 499-500.

Clearly, the question of the ownership of the fee never arose in Wright; as against that defendant, it mattered not whether the City held the fee or merely an easement. Thus, the issue sub judice, i.e., ownership of the fee, was not considered in Wright.

Following Wright by some thirty-eight years was Hardy v. Mayor & Aldermen of City of Memphis, supra. Unlike the other [**102] three cases relied upon by the Chancellor, in the Hardy case the heirs of the original proprietors were before the Court, as was the City. The actual holding [***9] in that case was a nonuser or temporary leasing of the ground for purposes other than a public use did not cause a reversion nor give the dedicators the right to reclaim same. The Court said:
    In such a case, upon a bill filed for such purpose, a Court of Chancery would compel the specific execution of the trust by causing the removal of obstructions to its proper use. The use and easement would still remain in the public. (Emphasis supplied.) 57 Tenn. at 138.

The quoted excerpt obviously does not envisage a situation whereby the fee is held by the City, as the only interest of the public mentioned is termed a use or easement. This is in accord with the principle aforesaid that a common-law dedication does not pass the fee.

[*301] In Wilkins v. Chicago, St. L. & N.O.R.R. Co. supra, the third case cited and relied upon by the Chancellor, the complainants were property owners seeking to restrain the execution by the City of certain contracts with the railroads. The contracts involved portions of the land here in controversy. Denying the relief, this Court said:
    We must therefore adhere to Mayor and Aldermen of Memphis v. Wright as establishing [***10] a rule of property controlling the strip of land in controversy. * * *

    [I]t must be held, under the authority of the case referred to, that the city is the owner of the property, and has the right to make any disposition of it authorized by its charter. 110 Tenn. at 461, 75 S.W. at 1035. (Emphasis supplied.)

The Wilkins case discussed numerous cases standing for the proposition that where intervening property rights have become vested as a result of a rule of property, such rule must be adhered to. We do not quarrel with such a principle; but where no such intervening rights exist, the reason for the rule ceases. It is this Court's conclusion, as it apparently was of the Court of Appeals, that no outstanding property rights will be adversely affected by a holding that the heirs retain the underlying fee. We reach this conclusion since, with one exception growing out of the Batture Compromise, the City has never attempted to convey by warranty deed fee simple title to any of the land in controversy.

At this point, brief mention should be made of the Batture Compromise. It arose some ten years after the Wright decision, which the City relies on as establishing [***11] a rule of property. Judge Bejach, speaking for a unanimous [*302] Court of Appeals, 54 Tenn.App. 419, 392 S.W.2d 86, said:
    The batture compromise arose out of a situation which existed in 1844. The controversy compromised was a three way one between the City of Memphis, the Proprietors and their heirs and successors, and Dabney and Martin. * * * All three parties claimed the accretions which had been formed by the Mississippi River and added to the Public Landing and Public Promenade. The controversy was settled by a compromise, under the terms of which all three parties conveyed their rights or claims of title to Seth Wheatley, who, in turn, conveyed to the City of Memphis a part of the land for the purpose of having it conveyed by the City to the United States for establishment of a Navy Yard. This was done. As to the balance of the property involved, Wheatley was to sell same and divide the proceeds, one-half to the heirs of the Proprietors, one-fourth to the City of Memphis, and one-fourth to the other claimants. The claim of the Proprietors and their successors to the accretions was based on the underlying fee which was burdened by the [**103] easement [***12] established by the dedication of 1820. Under no other theory could the Proprietors, or their successors, have been entitled to any part of the accretions; and yet, they received * * * one-half of the proceeds * * *. (Emphasis supplied.)

The significance of this compromise lies in the fact that with the exception of the land deeded away pursuant thereto, the City has never attempted to convey by warranty deed a fee simple title to any of the land in controversy. Thus, in the case at bar, the reason for invoking the doctrine of rule of property, i.e., the protection [*303] of property rights acquired under a judicial decision, is non-existent.

The final case upon which the Chancellor relied is Union Railway Co. v. Chickasaw Cooperage Co., supra. There, as in Wilkins, the heirs were not before the Court. Yet, again as in Wilkins, the Court stated "that the city was the owner of the property." 116 Tenn. at 615, 95 S.W. at 177.

For these reasons, we think that the previous decisions upon which the Chancellor relied do not establish a rule of property whereby fee simple title was vested in the City. To so hold would be to ignore the accepted rule of law in this [***13] State concerning the effect of a common law dedication, and in addition, the rule of stare decisis would be vitiated.

Of course, the holding in Hardy, supra, (that neither nonuser nor temporary leasing of the realty to a private party for other than a public purpose) is binding upon the parties here under the doctrine of collateral estoppel. Such doctrine is not to be confused with that of stare decisis (nor its subdivision rule of property), the two resting on entirely different foundations.

Accordingly, the judgment of the Court of Appeals is affirmed.

Labels: ,

[Read the complete article...]

City of Memphis v. Samuel Watkins Overton, Jr., et al. - Appeals Court Opinion

Here is the text of the Appeals Court opinion, December 6, 1964, that was later affirmed by the Tennessee Supreme Court. This opinion also serves as a concise legal history of the Public Promenade up to that point.

CITY OF MEMPHIS, Complainant and Appellee, v. SAMUEL WATKINS OVERTON, JR., et al., and All Persons Non Compos Mentis or Otherwise Under Legal Disability, Defendants and Appellants

[NO NUMBER IN ORIGINAL]

Court of Appeals of Tennessee, Western Section, at Jackson

54 Tenn. App. 419; 392 S.W.2d 86; 1964 Tenn. App. LEXIS
161

December 6, 1964

SUBSEQUENT HISTORY: [***1]

Certiorari Granted by Supreme Court June 8, 1964. Affirmed by Supreme Court
April 7, 1965.

PRIOR HISTORY: FROM SHELBY

DISPOSITION:

Decree reversed and decree in conformity with opinion to be entered in Court of Appeals.

COUNSEL:

Ramsay Wall and Thomas C. Farnsworth, Memphis, for D. W. McLemore, J. Bayard Boyle, B. Snowden Boyle and Mrs. Jack L. Erb, appellants; Shepherd, Heiskell, Williams, Wall & Kirsch, Memphis, of counsel.

Armstrong, McCadden, Allen, Braden & Goodman, and Newton P. Allen, Memphis, for S. Watkins Overton, Jr., Mrs. S. Watkins Overton, Mrs. Allen W. Phelps, Mrs. Paul Anderson, Mary Anna Wells, Natalie Nickel McDermott and Melvin Hill Hayes, appellants.

James W. McDonnell, Jr., Memphis, for Mrs. Catherine O. McDonnell, appellant; Canada, Russell & Turner, Memphis, of counsel.

Henry M. Beaty, Jr., Memphis, guardian ad litem.

Frank B. Gianotti, Jr. and William W. O'Hearn, Memphis, for City of Memphis, appellee.

JUDGES:

Bejach, J. Avery, P.J. (W.S.), and Carney, J., concur.

OPINION BY:

BEJACH

OPINION:

[*420] [**86] This cause involves a suit for declaratory judgment filed by the City of Memphis against the heirs, known and unknown, of John Overton, William Winchester, James Winchester, [***2] and John C. McLemore, Proprietors of the City of Memphis at the time same was founded in 1819 on the western part of what is known as the Rice Grant of 5,000 acres. Andrew Jackson had been one of the Proprietors, along with John Overton and [*421] James C. Winchester, but his interest in the land had been acquired by William Winchester and John [**87] C. McLemore. By its amended bill, the City of Memphis seeks a declaration that it is the owner in fee simple of lands lying along the Mississippi River west of Front Street and north of Union Avenue in Memphis, Tennessee, known as the Public Promenade and the Public Landing. The Chancellor so decreed, and the defendants have appealed. It should be noted that in its original bill, the City did not claim a fee simple title to the land here involved. That claim was first made in the amended bill, after the Chancellor had sustained the demurrer of J. Bayard Snowden, and it was then made to overcome the contention of that demurrer that, in the absence of a claim of fee simple title, no justiciable question was presented for adjudication. The filing of this suit resulted from negotiations by the City with reference to leasing [***3] the property at the northwest corner of Union Avenue and South Front Street for a hotel or motel. Incident to that negotiation it developed that, on account of the uncertainty of the City's title, a title guaranty policy could not be obtained. The particular tract of land thus involved has for many years been used for a fire station.

In this opinion, the parties will be referred to, according to their status in the lower court, as complainant and defendants, or called by their respective names, the City of Memphis being sometimes referred to as the City.

In 1820 the Proprietors of the City of Memphis filed and recorded a plat, drawn by William Lawrence, on which was shown numerous lots, streets, alleys, squares, a Public Landing and the Public Promenade, a part of which is specifically involved in the present litigation. The land west of Mississippi Row, now Front Street, and [*422] north of Jackson Street, now Jackson Avenue, was designated as the Public Landing, and that south of Jackson Street and north of Howard's Row, now Union Avenue, was designated as the Public Promenade. The particular land involved in this lawsuit is located at the northwest corner of Union Avenue [***4] and South Front Street. It is 300 feet by 113.35 feet in dimensions, and has been for many years used as the location for a fire station. It is obvious, however, that whatever title the City has to that particular land, it likewise has to other parts of the Public Promenade and the Public Landing. The City of Memphis was incorporated in 1826, but in the meantime, the Proprietors had sold lots by reference to the recorded plat. By deed dated September 18, 1828, and registered March 4, 1829, the Proprietors undertook to clarify and resolve doubts about the plat recorded in 1820, and to assert certain claims retained by them; but the Supreme Court held, in Hardy v. Mayor and Aldermen of City of Memphis, 57 Tenn. 127, that the rights, as between the City of Memphis and the Proprietors or their successors, must be determined by the recorded plat of 1820. The record shows that, with the exception of leasehold interests which will be discussed later, both the land designated as Public Landing and that designated as Public Promenade have at all times been used for some public purpose, though not exclusively for the purposes designated on the plat. The record also shows that, with the [***5] exception of the deed to the United States Government for its Custom House, Post Office, and Court House, the City has never undertaken to deed any part of the property by conveyance of a fee simple title, and, in that case, the deed was only a quit claim deed, and for an admittedly public purpose. The Cossitt Library is built on part of the Promenade, under a mere declaration of [*423] trust authorizing that use. One apparent exception to the statement that the City has never conveyed any of the property in fee simple, referred to in Adams v. Memphis & L.R.R. Co., 42 Tenn. 645, and in Wilkins v. Chicago, St. L. & N.O. Railroad Co., 110 Tenn. 422, 446, 75 S.W. 1026, concerns part of this property as to which the City of Memphis had acquired a fee simple title joined in by the Proprietors or their successors. This will be discussed more fully in a later part of this opinion.

[**88] The Chancellor, basing his decision on four Tennessee Supreme Court decisions, viz., Mayor and Aldermen of Memphis v. Wright, 14 Tenn. 497, 27 Am.Dec. 489; Hardy v. Mayor and Aldermen of City of Memphis, 57 Tenn. 127; Wilkins v. Chicago, St. L. & N.O. Railroad Co., 110 Tenn. 422, 75 S.W. 1026; [***6] and Union Railway Co. v. Chickasaw Cooperage Co., 116 Tenn. 594, 95 S.W. 171, held that the City of Memphis holds fee simple title to all of the property shown on the plat of 1820 as Public Landing and Public Promenade, which includes the particular tract of land involved in the instant case.

Most of the defendants, including the unknown and non compos heirs represented by the Guardian Ad Litem, have appealed. Various assignments of error have been filed in this Court, but these present only two questions, which are:

1. Did the City of Memphis acquire a fee simple title as a result of the dedication by plat from the original Proprietors?

2. If the city did not acquire a fee simple title, may it divert the interest which it did acquire by the dedication for other than a public use?

[*424] The contention of defendants is that the public, now represented by the City of Memphis, acquired by the dedication only an easement for public purposes, that the underlying fee remained in the Proprietors, and, consequently, that such underlying fee now belongs to defendants as successors to the interests of the original Proprietors.

Whatever title or interest the City of Memphis [***7] has in and to the Public Landing and the Public Promenade, it holds as representative of the public, and same was acquired from and under the common law dedication resulting from the recording of the plat of 1820 and the sale of lots with reference thereto. In order to answer the questions presented, it will be necessary for us to consider and discuss not only the four cases on which the learned Chancellor based his decision, but, also, some cases dealing generally with the title and rights acquired by the public in property dedicated for its use.

The general rule in Tennessee is that where property is dedicated for a public use, the public acquires only an easement in the property dedicated, and the underlying fee either remains in the original grantor and his heirs, or belongs to the abutting property owners where the easement conveyed is for a street or highway. State v. Taylor, 107 Tenn. 455, 64 S.W. 766; Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416; McCord v. Hays, 202 Tenn. 46, 302 S.W.(2d) 331; Hudson v. Collier, 48 Tenn.App. 386, 348 S.W.(2d) 350; State ex rel. Kincaid v. Hamilton, 109 Tenn. 276, 70 S.W. 619.

In State v. Taylor, 107 Tenn. 455, 64 S.W. 766, one [***8] G. W. Gibbs, then the owner of the land, laid off in 1855 the Town of Union City, Tennessee. He laid off and sold [*425] the lots according to the plan which designated numerous streets, including Washington Avenue. In 1867 the Town of Union City was incorporated. In 1884, Union City closed a part of Washington Avenue and opened a new street south of same in the same block. By city ordinance, that part of Washington Avenue which was closed was conveyed to the owner of the property used for the new street which was conveyed to the City in exchange for that portion of Washington Avenue which the City had closed. A building was constructed on that part of Washington Avenue which had been closed, and same was later conveyed to the defendant Taylor, who demolished same and was about to build a new building. The suit was filed by the State on relation of a property owner to prevent the erection of a new building. It was claimed that the conveyance by the Town of Union City of that portion of the street which had been closed was void. From the opinion of the [**89] Supreme Court, written
by Caldwell, J., we quote as follows:

    "It is obvious, under our law, that the ordinance [***9] and deed in question were ineffective to pass title to any portion of Washington Avenue to the intended vendee -- First, because the corporation did not own the fee in the street; and, secondly, because the easement which it did own was not subject to sale and conveyance. The corporation had only the right to use this street for street purposes. That was the extent of the dedication, and the board had no authority to exceed its limits. The platting of the territory and sale of the lots by the original owner in the manner heretofore recited vested the streets as such, not otherwise, in the municipality, and at the same time passed to the respective lot purchasers the ultimate fee in the soil [*426] to the center of the streets on which they severally abutted. Hamilton Co. v. Rape, 101 Tenn. [222], 225, 47 S.W. 416; Railroad Co. v. Bingham, 87 Tenn. [522], 530, 11 S.W. 705, 4 L.R.A. 622; Smith v. Railroad Co., 87 Tenn. [626], 630, 11 S.W. 709.

    By force of its character and the general law, the corporation, upon its organization, became endowed with the proprietorship of the streets, which it received in trust as easements for the convenience of the public. Humes v. [***10] Mayor, etc. [of Town of Knoxville], 1 Humph. [20 Tenn.] 403; Mayor, etc. [of City of Nashville], v. Brown, 9 Heisk. [56 Tenn.] 1; Railroad Co. v. Bingham, 87 Tenn. [522], 530, 11 S.W. 705, 4 L.R.A. 622; Smith v. Railroad Co., 87 Tenn. [626], 630, 11 S.W. 709.

    So, the corporation had only an easement in Washington Avenue, and that, from its nature, was incapable of alienation and passage to an individual. Hence, to repeat what has already been remarked, the ordinance and deed relied on by the defendant were inoperative, as to the fee, because the corporation did not own it, and, as to the easement, because it was not transferable." State v. Taylor, 107 Tenn. 463-464, 64 S.W. 768.


We think the title of the City of Memphis to the streets, squares, public landing and public promenade, dedicated by the Proprietors of the City of Memphis, is in all respects, analagous to that held by Union City in the Taylor case. It has been held, however, by our Supreme Court, that the City of Memphis might use the Public Landing and Public Promenade for other public purposes than those contemplated by the Proprietors at the time of the [*427] dedication, that when not needed for [***11] public use, the City might lease parts of same to private individuals or corporations, and that the Proprietors or their successors could not repossess the land for purposes other than those contemplated at the time of the dedication. This brings us to a discussion of the four cases relied on by the Chancellor as the basis for his decree that the City of Memphis holds fee simple title to the land in question.

The case of Mayor and Aldermen of Memphis v. Wright, 14 Tenn. 497, 27 Am. Dec. 489, involved a suit by the City of Memphis to collect a penalty for violation of a City ordinance which had designated parts of the Public Promenade as a landing for steamboats and other parts of same for the landing of flat boats and other craft. The ordinance provided for a penalty of $ 1.00 per hour for flat boats tying up at that part designated for a steamboat landing. Suit was brought against Wright in a Justice of the Peace court for collection of this penalty. A judgment for $ 50.00 was recovered. This was appealed by Wright to the Circuit Court, where, at a jury trial, a verdict was returned in favor of the defendant. This was appealed to the Supreme Court where it was reversed on [***12] the ground that the trial judge had erroneously charged the jury with reference to the City's right to use the Public Promenade for purposes [**90] other than that designated in the dedication. From the Supreme Court's opinion, written by Green, J., we quote as follows:

    "The part of the charge complained of assumes that a corporation cannot apply the public property of a town to any new use other than that for which it was designated when the town was originally laid off. In this we are of opinion that the court erred. The public property belongs to the corporators, and may be [*428] appropriated by them to any use they may think proper. The mayor and aldermen are the representatives of these corporators, and have vested in them all the right to dispose of, or apply to any use they may think proper, the public promenade, public squares, etc., which existed in the original proprietors. If this were not so, a thriving town would be exceedingly crippled in the exercise of its corporate rights. Few persons would have sufficient foresight, in laying off a town, to anticipate and provide everything that was calculated to promote its prosperity and good government. It must, [***13] therefore, be among the powers of a corporate town, having by its charter a right 'to do all things necessary to be done by corporations,' to lay off new streets, squares, lanes, and alleys, and to construct wharves and other conveniences for the trade and comfort of the citizens, and by ordinances to regulate the manner in which they shall be used. These powers are 'necessary to be done' that the prosperity of the town may be promoted, and that its peace and order may be preserved.

    * * *

    By the act of incorporation, all the power to condemn, for a particular public use, any portion of the bank of the Mississippi, included in the corporation, which existed in the legislature of the state is transferred to the corporation of Memphis, for the latter clause of the 2d section of the charter of incorporation says it shall have power 'to do all things necessary to be done by corporations.' For the encouragement of trade, the construction of convenient places of landing was 'necessary to be done', and, for the preservation of peace and good order, the designation of particular landings for different kinds of water craft was 'necessary'. [*429] But this designation would have been [***14] useless had it not been enforced by a penalty; therefore, the corporation had authority to enact the ordinance in question." Mayor and Aldermen of Memphis v. Wright, 14 Tenn. 498-501.


Mayor and Aldermen of Memphis v. Wright is a direct authority for the proposition that the City of Memphis is authorized to use the Public Promenade for purposes other than those designated in the dedication of same. The Supreme Court's opinion contains the language, "The public property belongs to the corporators, and may be appropriated by them to any use they may think proper." The opinion says, also, "The mayor and aldermen are the representatives of these corporators, and have vested in them all the right to dispose of, or apply to any use they may think proper, the public promenade, public squares, etc., which existed in the original proprietors." It will be noted, however, that neither the Proprietors nor their successors or representatives were before the court in that case. As against the defendant Wright, it made no difference whether the City of Memphis owned a fee simple title to the public property involved, or only an easement therein. Either would be sufficient for the purposes of [***15] the city ordinances involved. As against Wright, the defendant in that case, the language used may be considered appropriate for disposition of the issues before the court; but certainly, it can not be considered binding on the Proprietors or their successors in interest, who were not parties to the suit. It follows, therefore, that, if the [**91] language quoted be considered as indicating that the City of Memphis owned a fee simple title to the Promenade, that language must be treated as dictum. The vital part of the decision, [*430] which is not dictum, is that the City did have authority to devote the Public Promenade, or parts thereof, to some public use other than that designated by the dedication.

In the case of Hardy et al. v. Mayor and Aldermen of City of Memphis et al., 57 Tenn. 127, complainants, as representatives of the original proprietors, sought a recovery from the City of Memphis and its lessees of part of the land dedicated as a public landing, together with accretions thereto, and to recover the rentals paid by the tenants to the City of Memphis, on the ground that the land in question was no longer suitable for use as a public landing, that its use [***16] as such had been abandoned, and that the property in question had been diverted to other uses and was being leased by the City of Memphis to saw mills and other industries. The Chancellor dismissed the bill, and the Supreme Court affirmed. In its answer, the City of Memphis claimed fee simple title to the land in question by virtue of adverse possession of seven years and twenty years, and that the land in question had been deeded in fee by the original Proprietors. The bill in that cause was filed in 1866, but it refers to and relies, in part, upon a compromise deed involving accretions, which deed had been executed in July 1844, and the award made pursuant thereto in January 1847. From the Supreme Court's opinion, written by Deaderick, J., we quote as follows:

    "There has been no abandonment of the right, but a continued assertion of it; and no such nonuser as would constitute evidence of an intention of abandonment, nor any use by complainants indicating an adverse claim to the enjoyment of the easement [*431] Although the chief landing places for boats, are and have been for many years, below the line of the premises claimed by complainants, yet the proof shows that [***17] flatboats do, from time to time, land upon said premises and that they have been claimed by the city and held and controlled by it, and that no claim adverse to the right of possession and use of the city has been made by complainants since the adjudication of the questions submitted to arbitration, until the filing of the bill.

    The terms of the dedication and the circumstances under which it was made, did not impose upon the Mayor and Aldermen the obligation of an immediate appropriation of the premises to the intended purposes. It was well known to the grantors that there would not be, for years to come, a necessity for the use of the whole front dedicated to the purposes of a landing or landings. At the time of the dedication, Memphis was a small place of inconsiderable trade, but it was believed that it would become in after years a great city, and an important commercial point, and the object of the founders of it was to provide facilities for its trade and commerce adequate to its probable future requirements. They therefore gave the public landing, forever, without any condition that the right should revert, if not improved or appropriated to its intended uses, within [***18] any given period; and have sold lots bounded upon this open space, whereby purchasers from them have acquired the rights to their lots upon the understanding that this open space was permanently dedicated to the public. 'And in such a case the proprietors will have all power over the subject, and the [*432] only power of the court is to ascertain and establish the fact of dedication. It can neither be limited in its extent, nor revoked on the ground of a supposed excess of the dedication beyond the requirements of the public.' 8 B. Monroe. 247

    * * *

    [**92] Nor will the fact, that the city authorities have leased the ground, or temporarily appropriated it to different purposes than those contemplated in the dedication of it, give the grantors the right to reclaim it, or cause it to revert to the original owners.

    In such a case, upon a bill filed for such a purpose, a Court of Chancery would compel the specific execution of the trust by causing the removal of obstructions to its proper use. The use and easement would still remain in the public. 6 Peters, 507.

    The bill in this case seeks to have the rights of complainants declared and established in and to the land, [***19] and to have the same partitioned amongst them as tenants in common. To the relief sought, we are of opinion, that the complainants are not entitled, and affirm the decree of the Chancellor dismissing the bill, with costs." Hardy v. Mayor and Aldermen of City of Memphis, 57 Tenn. 137-139.


In the Hardy case, the successors of the original Proprietors were before the court and it was held that nonuser or temporary leasing of the ground for purposes other than a public use did not cause a reversion. A bill in Chancery was suggested as the appropriate remedy for cancellation of such leases, if, as, and when it became necessary for the land to be devoted to a public use. It will be noted that this case was decided long before the [*433] declaratory judgment law was enacted in 1923. In the instant case, the City of Memphis, itself, has sought, under the declaratory judgment law, sections 23-1101 -- 23-1113 T.C.A., a declaration of its rights and prays that it be declared to have a fee simple title to part of the same land involved in the Hardy case. The Hardy case decided that the successors in interest of the original Proprietors were not entitled to recover possession of the [***20] land dedicated for a public landing, even though it was no longer used for that purpose and was being temporarily leased to private industry prior to using same
for some other and different public use. The decision goes no further than that. Even though the City in that case claimed a fee simple title, and complainant's bill was dismissed, same was not dismissed on that ground, and no adjudication was made that the City of Memphis did own a fee simple title to the land in question. On the contrary, the City's title was referred to as an easement.

In Wilkins v. Chicago, St. L. & N.O.R.R. Co. et al., 110 Tenn. 422, 75 S.W. 1026, a number of owners of property on the east side of Front Street, in Memphis, undertook by their bill to prevent the execution by the City of Memphis of a contract with the Chicago, St. L. & N.O.R.R. Co. and the Illinois Central R.R. Co. which would grant to them additional rights to use part of the property known as the Public Promenade and Public Landing and confirm to them previously granted rights in the same property alleged to have been granted illegally either to them or their predecessors. The theory of the bill was that the City of Memphis held [***21] as trustee the rights granted by dedication of the original Proprietors of Memphis. It was claimed that, by virtue of this dedication, the Public Promenade became, upon acceptance by the City, a perpetual pleasure ground for the [*434] people of the City, and that the municipal authorities had no power to sell, donate, or in any manner contract away, for railroad purposes, or any purpose foreign to that indicated by the name which the original Proprietors gave to it. The bill was demurred to, on many grounds, by both the Railroad Companies and the City of Memphis. We need, however, consider only the second, third and fourth of such grounds. There were sustained by the Supreme Court, and were, as follows:

    "(2) Because the said complainants in said bill of complaint do not stand in such relation to such contracts and [**93] ordinances as to entitle them in law to call in question the validity thereof.

    (3) Because the said contracts and ordinances, if illegal, can be challenged or brought in question only by the public authorities, and not by private individuals.

    (4) Because the said complainants, and none of them, had or has shown any peculiar and particular [***22] injury to them or him or her, suffered and sustained, which entitles the said complainants, or either of them, to maintain the bill of complaint in the cause exhibited."


The Chancellor sustained the demurrers and dismissed complainants' bill, without indicating which of the many grounds of demurrer were good, but the Supreme Court in affirming the dismissal expressly limited its adjudication to sustaining of the three grounds of demurrer quoted above.

In this case, it was contended that the case of Mayor and Aldermen of Memphis v. Wright, 14 Tenn. 497, 27 Am.Dec. 489, decided in 1834, and the case of Hardy v. Mayor and Aldermen of City of Memphis, 57 Tenn. 127, [*435] had established a rule of property with reference to the Public Promenade and Public Landing, which, even if decided incorrectly, should be adhered to. Ruling to that effect, the Supreme Court held that the complainants, as individual property holders, could not question the authority of the City of Memphis to contract with the railroad companies for use by them of part of the Public Promenade and part of the Public Landing.

From the opinion of the Supreme Court, written by Mr. Justice Neil, later Chief Justice, [***23] we quote as follows:

    "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.

    * * *

    So it is insisted that the complainants are left alone to a construction of the bare map, with the space marked off upon it and designated by the words 'Public Promenade.' And while conceding that, if the question were res integra, it should probably be held to be the true construction that this ground was intended only for a pleasure ground, yet it is said that the question has been heretofore settled in this state by a decision rendered in 1834, and that that decision has become a rule of property in respect of the particular strip of land in controversy in the present case. The application of that case is the chief question for consideration.

    * * *

    [*436] We must therefore adhere to Mayor and Aldermen of Memphis [***24] 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 and that the complainants do not sustain the relation of beneficiaries in such special trust, and 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.

    * * *

    [**94] 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 not think it proper to pass directly upon the question of the validity of the contracts assailed. Having held that they can be questioned only by the public authorities, or, as respects the streets, by some abutting owner [***25] thereon, in so far as they unlawfully affect his rights, in respect of such street on which his property abuts, or by the public authorities, it is manifestly improper that we should go into this matter any further without having before the court some party entitled to make the questions, if any there be, that may arise on that head, as to the existence of which, not having considered that matter, we intimate no opinion one way [*437] or the other." Wilkins v. Chicago, St. L. & N.O.R.R. Co., 110 Tenn. 449-451, 461-465, 466, 75 S.W. 1032-1033, 1035, 1036.


It will be noted that in the Wilkins case the court refers to the City of Memphis as the owner of the property involved, and refers to the statement in Mayor and Aldermen of Memphis v. Wright that "The mayor and aldermen are the representatives of these corporators, and have vested in them all the right to dispose of, or apply to any use they may think proper, the public promenade, public squares, etc., which existed in the original proprietors." The original Proprietors were not, however, parties to either of the suits in which these expressions were used, and, consequently, could not be bound by any such statements. In the [***26] instant case, not only are the heirs of the original Proprietors before the court, but the City has expressly prayed for a declaration of rights as against them. In that situation, the rule of property established by the decisions in Mayor and Aldermen of Memphis v. Wright and Hardy v. Mayor and Aldermen of City of Memphis can, in our opinion, go no further than, that, as applied to the Proprietors or their successors in interest, the City may use the Public Promenade and Public Landing for any
public purpose, even though such purpose be different from that originally contemplated, and may, until the property is needed for a public use, lease same to private enterprise; and, that, as against outsiders or third parties, no effective complaint can be made by them, as long as the City is acting within the authority granted by its charter. To that extent, but not further, it was held in the Hardy case, where the Proprietors or their successors were before the court.

[*438] The case of Union Railway Co. v. Chickasaw Cooperage Co., 116 Tenn. 594, 95 S.W. 171, involved a suit filed in the Chancery Court by the Union Railway Co. which had been granted by the City of Memphis the right [***27] to run its railroad tracks along and over the Public Promenade and Public Landing, against the Chickasaw Cooperage Co., which was assignee of a lease made by the City of Memphis to Williams & Company. The Union Railway Co. had previously sought by a condemnation suit in the Circuit Court to acquire the rights of the Chickasaw Cooperage Co. That suit had proceeded to the point where the Railway Co. had been denied the right to dismiss same, and the Chancery suit sought to enjoin further prosecution of the Circuit Court case, and to require the removal, without compensation, to the Chickasaw Cooperage Co. of its plant erected under its leasehold right, because same was for private use and in violation of the purposes for which the property in question had been dedicated.

The Chancery Court granted the relief prayed for, but the Supreme Court reversed, holding that the leasehold interest of the Chickasaw Cooperage Co. was valid until reclamation of the property was sought by the City for a public use, and that the Union Railway Co. could acquire same only by condemnation and payment [**95] of its fair value. This case reiterated the rule of property announced in Wilkins v. Chicago, [***28] St. L. & N.O.R.R. Co. The contention was made that since the Chickasaw Cooperage Co. was using the property for private purposes, the Union Railway Co. under its grant of right to use the property for a public purpose, could take without compensation. The Supreme Court held, on authority of the unreported case of Mayor and Aldermen of Memphis v. D. R. Grace that this could not be done, and that the lease could be cancelled and the [*439] property reclaimed only by suit of the City itself, as and when the property was needed for a public use. It was also contended that the particular property involved was not involved in either Mayor and Aldermen of Memphis v. Wright or Wilkins v. Chicago, St. L. & N.O.R.R. Co., and, therefore, was not bound by those decisions. All of these contentions were held by the Supreme Court to be without merit. From the opinion of the Supreme Court, written by Mr. Justice McAllister, we quote as follows:

    "We are of opinion, however, that neither of these reasons is sound: First, because the property involved in the present litigation was in principle involved both in Mayor and Aldermen of Memphis v. Wright and in Wilkins v. [Chicago, St. L. & N.O.] [***29] Railroad [Co.], since it is a part of the public landing which was dedicated on the map by the original proprietors in 1819. It is true that the identical strip of land herein was not the basis of the litigation in the former cases; but the public landing was involved in both of those cases, and the property herein involved is a public landing, and as such property a rule of property was established, and it is immaterial whether the identical property was involved. Secondly, while it is true that neither of the former cases involved a diversion of land held for a public purpose to a private purpose, yet it was broadly held in both of those cases that the city was the owner of the property and had the right to make any disposition of it authorized by its charter. 'This is true,' said the court in Wilkins v. Railroad, supra, 'both as to the public promenade and the public landing; the principles being the same as to each piece of property.'

    [*440] As already seen, it was adjudged in Wilkins v. [Chicago, St. L. & N.O.] Railroad [Co.], that the ruling in [Mayor and Aldermen of] Memphis v. Wright, supra, established a rule of property both as to the promenade and the public [***30] landing, which must be adhered to by the court regardless of the merits of the original legal controversy.

    The broad contention on behalf of the Union Railway Company is that property riginally purchased or dedicated for public purposes cannot, even for a day, be used for private purposes, although not actually used or needed at the time by the public or any beneficiary of the trust. But exactly the contrary of this proposition was decided by this court in June, 1874, in the case of Mayor and Aldermen of Memphis v. D. R. Grace, in an unreported opinion delivered by Judge Robert McFarland. The litigation in that case was between the city and its lessees of certain portions of the very land involved in the present suit.

    * * *

    'It is not now averred that the public, or any part of the public, desire to use the premises in question as a landing, or that their right to do so is obstructed. So far as this record shows, the city being absolute owner, it had the same absolute power of disposition as other owners, subject only to the rights or easements secured to the public by the proprietors. If the premises were being so used as to deprive the public of their right to use them, [***31] in accordance with the intention of the original proprietors, the public would [**96] not be without remedy. If the city authorities in making the lease exceeded their power in this respect, we do not hold [*441] that the city would be estopped to deny the title to the lease so far as the power was exceeded.

    * * *

    May not the city use it for any lawful and useful purpose not inconsistent with the right which the public may have to again establish a public landing at the place whenever occasion may require? We think so. This being so, we see no reason why the lease in question could not be made. The lessee would no doubt take the premises subject to the right of the public to reclaim it as a public landing; but this emergency has not arisen.'

    * * *

    An analysis of the above opinion will show that the court decided that portions of the public landing now in controversy, when not needed or demanded, for the use of the public, might be leased to private individuals for private purposes, and that such leases were not ultra vires and void. It was further held that such leases could not be rescinded at the suit of the city unless it appeared that the land in question [***32] was needed for the immediate uses of the public. It was further adjudged that, if the premises were being so used as to deprive the public of their right to use them in accordance with the intention of the original proprietors, the public would not be remediless.

    It was further said that the lessee would no doubt take the premises subject to the right of the public to reclaim it as a public landing, whenever the emergency might arise. It was further held that the defendants, having paid out their money in the erection of valuable improvements, relying in good faith upon the title made by the city, should not be disturbed until such [*442] time as the rights of the public appeared to be obstructed or interfered with.

    * * *

    We are of opinion the decree of the chancellor was erroneous. First. The leases executed by the city of Memphis to the Chickasaw Cooperage Company and to Williams & Co., under the authority of Wilkins v. [Chicago, St. L. & N.O.] Railroad [Co.] and Mayor and Aldermen v. Grace, supra, were valid and enforceable. Second. It does not appear that an emergency has arisen when the public is demanding the use of this public landing. The city of Memphis [***33] is not demanding it as trustee of the public, nor is any beneficiary of the trust so demanding it. The use sought to be made of this public landing by the Union Railway Company is exclusive and inconsistent with the rights of the indefinite public as beneficiaries of the trust. The permanent occupation of this landing with railroad tracks and terminal facilities would necessarily exclude the public from that part of the landing so occupied by the Union Railway Company. So upon that theory the Union Railway Company is not entitled to dispossess the cooperage company. Third. The Union Railway Company is entitled to occupy this public landing with the consent of the city of Memphis, but cannot occupy with its railroad tracks and depots any part of the property occupied by the Chickasaw Cooperage Company under its lease from the city without making compensation to the cooperage company. Fourth. The Union Railway Company is entitled to occupy that portion of the public landing leased to the Chickasaw Cooperage Company in the exercise of its right of eminent domain and by making compensation to said lessees.

    [*443] The case of Hardy v. Mayor [etc.], 10 Heisk [57 Tenn.] [***34] 129, relied on by [**97] counsel for the railway company as establishing a rule of property for this case, did not present the precise question with which we are here dealing. The only point adjudged in that case was that the public landing therein involved did not revert to the original proprietors because it was used for private purposes." Union Railway Company v. Chickasaw Cooperage Co., 116 Tenn. 614-615, 617, 618, 619, 621-623, 95 S.W. 177, 178, 179.


It will be noted that in none of the four cases relied upon by the Chancellor, all of which are reviewed and summarized above, did the Supreme Court ever say that the City of Memphis had fee simple title to the Public Landing and Public Promenade. On the contrary, in the only one of these cases to which the Proprietors or their heirs or successors were party, viz., Hardy v. Mayor and Aldermen of City of Memphis, 57 Tenn. 127, the Supreme Court referred to the interest which the City of Memphis had in these properties as an easement, and held that it had not abandoned same by nonuser or temporary leasing of same for nonpublic purposes. Our conclusion is that the rule of property referred to in Wilkins v. Chicago, St. L. & [***35] N.O.R.R. Co. and Union Railway Co. v. Chickasaw Cooperage Co., as applied to the City of Memphis, is that it did not forfeit its easement or abandon same by nonuser or temporary diversion to a non public use, and that, as against the heirs and successors of the original Proprietors, no forfeiture occurs, because of diversion to a public use other than that originally contemplated, or because of temporary diversion from any public use by reason of leases executed by the City of Memphis. In Union Railway Co. v. Chickasaw Cooperage Co., the [*444] Supreme Court indicates that if any part of the Public Promenade or Public Landing should be under lease for a non public use when needed for a public use, the City itself would not be estopped to sue for cancellation of the lease; and it may be that the successors in interest of the Proprietors might do the same, for the purpose of putting the land to such public use. Certainly, it has not yet been held that successors of the Proprietors would not have such right. We have neither the authority nor the desire to overrule or modify either or any of the Supreme Court's decisions relied on by the learned Chancellor; but, on the other hand, [***36] there can be no justification for extension of these decisions beyond the necessary implications of same. Our conclusion, thus reached, is fortified by consideration of the batture compromise referred to in Hardy v. Mayor and Aldermen of City of Memphis, and in the unreported case of City of Memphis v. Nealis, a certified copy of the opinion in which case was filed as an exhibit in this cause.

The batture compromise arose out of a situation which existed in 1844. The controversy compromised was a three way one between the City of Memphis, the Proprietors and their heirs and successors, and Dabney and Martin. Dabney and Martin had obtained a grant from the State of Tennessee to land west of the Rice Grant, formerly owned by the Proprietors of Memphis, which grant, to some extent, overlapped the Rice Grant. All three parties claimed the accretions which had been formed by the Mississippi River and added to the Public Landing and Public Promenade. The controversy was settled by a compromise, under the terms of which all three parties conveyed their rights or claims of title to Seth Wheatley, who, in turn, conveyed to the City of Memphis a part of the land for the purpose of having [***37] it conveyed by the [*445] City to the United States for establishment of a Navy Yard. This was done. As to the balance of the property involved, Wheatley was to sell same and divide the proceeds, one-half to the heirs of the Proprietors, one-fourth to the City of Memphis, and one-fourth to the other claimants. The claim of the Proprietors and their successors to the accretions was based on the underlying fee which was burdened by the easement established by the dedication of 1820. Under no [**98] other theory could the Proprietors, or their successors, have been entitled to any part of the accretions; and yet, they received, in the compromise, one-half of the proceeds resulting from the disposition of same. As was said by Mr. Justice DeHaven in Carroll County Board of Education v. Caldwell, 178 Tenn. 671, at page 675, 162 S.W.(2d) 391, at page 393 of the opinion:

    "Complainants owned an easement in the land, for school purposes. Under a common law dedication the public does not acquire a fee in the land, but simply the right to use it for the purpose for which it was dedicated. The fee remains in the owner, and he holds it subject to the easement of the public." [***38]


The land conveyed by Seth Wheatley to the City of Memphis, in the batture lands compromise, and, in turn, conveyed by the City to the United States for a Navy Yard, was later reconveyed by the United States to the City of Memphis, when the Navy Yard was abandoned. This conveyance by the United States was the source of the City's title which was by it alienated in fee simple in the conveyances referred to in Adams v. Memphis & L.R.R. Co., 42 Tenn. 645 and Wilkins v. Chicago, St. L.N.O.R.R. Co., 110 Tenn. 422, 446, 75 S.W. 1026. It was held in Murdock v. Mayor and Aldermen of Memphis, 47 Tenn. 483, [*446] (affirmed by the United States Supreme Court in 20 Wall. 590, 87 U.S. 590, 22 L.Ed. 429), that the City of Memphis, by virtue of this reconveyance by the United States, had acquired an indefeasible title in fee simple. No such title in fee simple has been acquired by the City of Memphis to any other portion of the Public Promenade or the Public Landing.

Our final conclusion is, therefore, that the learned Chancellor erred when he held that the City of Memphis has a fee simple title to the land involved in this cause, or to any other part of the Public Promenade or Public Landing [***39] not included in the batture compromise. His decree will be reversed, and a decree in conformity with this opinion will be entered in this Court.

The costs of the cause will be paid by the City of Memphis.

Avery, P.J. (W.S.), and Carney, J., concur.

Labels: ,

[Read the complete article...]

Harper's Weekly: Protecting the Bluffs

The August 27, 1887 issue of Harper's Weekly featured our own bluffs on the cover, in a wood engraving by Charles Graham. The title: "Protecting the Bluffs at Memphis, Tennessee." Here is a reproduction of that cover illustration (click for larger image). We have also provided links so you can download the image for wallpaper.

Cover of Harper's Magazine, August 27, 1987.

Wallpaper for computers


Here is a landscape oriented detail from the Harper's Weekly cover. Pick the size appropriate for your computer screen. In Windows, just click the link below, right-click on the resulting picture, and then click "Set as Background."

Wallpaper for 1024 by 768 screens
Wallpaper for 1280 by 1024 screens



Here is the full etching from the Harper's Weekly cover. Since it is a portrait orientation, it will not fill your screen. The thumbnail above gives you an idea of how it might look centered with a black background. Pick the size appropriate for your computer screen. In Windows, just click the link below, right-click on the resulting picture, and then click "Set as Background."

Wallpaper for 1024 by 768 screens
Wallpaper for 1280 by 1024 screens



Here is the full cover from the Harper's Weekly. Since it is a portrait orientation, it will not fill your screen. The thumbnail above gives you an idea of how it might look centered with a black background. Pick the size appropriate for your computer screen. In Windows, just click the link below, right-click on the resulting picture, and then click "Set as Background."

Wallpaper for 1024 by 768 screens
Wallpaper for 1280 by 1024 screens

Labels:

[Read the complete article...]

1828 Founders' Document

Here is a transcript of the document filed in 1828 in the Shelby County Register's Office that establishes the public Promenade in downtown Memphis.


The undersigned proprietors of the land on which the town of Memphis has been laid off, having been informed that doubts have arisen in relation to their original intention concerning the same, for the purpose of removing such doubts, do hereby make known and declare the following as their original and unequivocal designs and intentions in relation thereto:

First. All the ground laid off in said town as streets or alleys, we do say that it was always our intention that the same should forever remain as public streets and alleys, subject to the same rules and regulations as all streets and alleys in towns or cities, forever obligating ourselves, heirs or assigns, and by these presents, we do bind ourselves, our heirs, etc., that the above streets and alleys shall continue eastwardly as far as lots are laid off, and the streets, though not the alleys, as far east as Bayou Gayoso, agreeably to the last survey and sale.

Second. In relation to the ground laid off in said town as public squares, viz: Court, Exchange, Market and Auction Squares, it was the intention of the proprietors that they should forever remain as public grounds, not subject to private appropriation, but public uses only, according to the import of the above expressions, Court, Exchange, Market and Auction Squares.

Third. In relation to the piece of ground laid off and caled the "Promenade," said proprietors say that it was their original intention, is now, and forever will be, that the same should be public ground for such use only as the word imports, to which heretofore, by their acts, for that purpose, it was conceived all right was relinquished for themselves, their heirs, etc., and it is hereby expressly declared, in conformity with such intention, that we, for ourselves, heirs and assigns, forever relinquish all claims to the same piece of ground caled the "Promenade," for the purpose above mentioned. But nothing herein contained as to the Promenade shall bar the town from authorising one or more ferries to be kept by the proprietors, their heirs or assigns, opposite said Promenade and the mouth of any of the cross-streets on Mississippi Row.

Fourth. In relation to the ground lying between the western boundary of the lots from No. 1 to 24 inclusive, and the same line continued in a direct course to the south bank of the Bayou Gayoso and the eastern margin of Wolf and Mississippi Rivers, and between Jackson street extended to the river and the said south bank of the bayou, it was the original intention of the proprietors that there should, on said ground, forever be a landing or landings for public purposes of navigation or trade, and that the same should be forever enjoyed for those purposes, obligatory on ourselves, heirs and assigns; but all other rights not inconsistent with the above public rights incident to me soil, it never was the intention of the proprietors to part with, such as keeping a ferry or ferries on any of the public ground, an exclusive right which they always held sacred, and never intended to part with in whole or in part.

Fifth. The first block of ground lying east of lots Nos. 329 and 330 and north of Poplar street, being 148 1/2 feet square, having heretofore been used as a public burying-place, the same is hereby given, granted and conveyed forever to the town of Memphis, provided the practice of burying henceforward cease therein.

Sixth. Inasmuch as they have been advised that it is the general wish of the citizens of the town that the public burying-place should be so moved out of the town, and being applied to by the corporation of Memphis for the purchase of four acres of ground on the Second Bayou for a burying-ground, in consideration of their desire to furnish said town of Memphis with every convenience which it wants, whether natural, sacred or commercial may require, they do hereby give, grant, bargain and sell forever to the citizens of the town of Memphis, and all their heirs and assigns forever, for a public burying-ground, subject to such regulations as to them may appear requisite, the following described lots of ground, viz. : Beginning at a black gum on the south bank of the Second Bayou; thence south twelve degrees east twenty poles seven and a half links to a stake, with white oak and a black oak pointers; thence south seventy-eight degrees west thirty poles to a stake, with a black gum pointer; thence north twelve degrees west twenty poles seven and a half links to a black oak on the bank of the Bayou, a gum and beech pointers near the mouth of a small ravine; thence up the south bank of the Second Bayou to the beginning, containing four acres, and including the present burying-ground; and they further declare and acknowledge that there shall forever be kept open a right of way not less than twenty feet wide from some point on the Alabama road, as it now runs opposite to the grave-yard, directly to it.

In witness whereof, we have hereunto set our hands and seals this 18th September, 1828.

Jno. Overton, [seal.] One of the proprietors.
Jno. C. McLemore, [seal.]
Geo. Winchester, [seal.]
Wm. Winchester, [seal.] Surviving Owner by M. B. Winchester, Special Agent and Attorney in fact.
Witness: Rich. S. Williams, Wm. Lawrence, M. B.

Labels: ,

[Read the complete article...]