Copyright 2010 * All rights reserved
J.C. (Jim) Tumblin, OD, DOS
3604 Kesterwood Drive, East
Knoxville, Tennessee 37918-2557
(865) 687-1948
Fountain Head Hotel with Park and Spring (in foreground)
Fountain City Park, The Lawsuit
Chapter 1
Community Activist
(Photo Courtesy of the McClung Historical Collection)
"For of all sad words of tongue or pen, the saddest
are these; it might have been." (John Greenleaf Whittier)
On
sunny days several times in the last couple of weeks, while walking the
one-third mile track in Fountain City Park, the author has observed the happy
countenance of others walking for their health and seen the joyful children on
the swings and slides. Sad indeed is what might have been except for Dr. H. E.
Goetz and his attorney John W. Green of the law firm of Green, Webb, Cowan and
Ogle. Fountain City Park would have been divided into lots and sold for a
residential subdivision.
Henry Edward Goetz was born in
Louisville, Tenn. on Feb. 16, 1874, the son of Dr. Edward Goetz (1818-1876) who
was born in Germany and emigrated to America in 1848. He
served as a major and surgeon during the Civil War.
As a boy Henry Edward first lived near
Concord but later moved to Burlington and attended the famous Bell House School
and the University of Tennessee. After service in the Spanish-American War
(1898), he entered the Tennessee Medical College, then in Knoxville. He
graduated in 1905. The college
accepted students from 1889 to 1905, when it merged with the Medical College
branch of Lincoln Memorial University. In 1914, the combined schools joined with
the Medical Department of the University of Tennessee in Nashville.
Dr. Goetz did postgraduate work at the
University of Chicago and began the practice of general medicine in 1906.
For a time he held the chair of Materia
Medica (Pharmacology) at the Medical Department of Lincoln Memorial
University. He later specialized for a time in the diseases of the eye, ear,
nose and throat.
His first office was in the Deaderick
Building in downtown Knoxville. However, after he took a special course in New
York in mental and nervous diseases in 1913, he opened a sanitarium* for their
treatment at 3000 North Broadway (near Atlantic Ave.). The 1919 City Directory
shows that Goetz Sanitarium had moved to Hotel Ave. and 5th Street,
at the former location of the Fountain Head Hotel. By 1919 the City Directory
indicates that 5th Street was called Evergreen Lane and the
sanitarium is listed at 107 Evergreen Lane each year until 1927, the year of his
death. His family appears to have lived on at the same address for several
years.
N.L. Hicks in Chapt. 25 “Some Early
Communities” of the French Broad-Holston
Country: A History of Knox County, Tennessee states, “In later years the
hotel’s popularity languished. It changed hands a number of times, and was
finally bought by Dr. H.E. Goetz, who used it as a sanitorium*, until its
destruction by fire in 1920. It was rebuilt and a few years later became an
apartment house.”
Widely known as an expert throughout the
country, he treated patients from all over the United States and from as far
away as India. His peers in the medical profession respected his expertise with
difficult cases.
Probably Dr. Goetz never heard himself
described as a community activist, but he would seem to qualify for that title.
He was a leader in Fountain City civic activities and the chairman of Knox
County’s first Highway Commission. He led the fight to abolish the old, filthy
workhouse and to build a modern sanitary one. He fought for the construction of
an underpass at the hazardous North Broadway crossing of the Southern Railway
and came near to seeing the project succeed. However, it was vetoed by the
Highway Commission.
His body was returned to Knoxville for
burial in Highland Memorial Cemetery. He was survived by his wife of 30 years,
Beatrice Hollister Goetz, and their three children, Frank, Beatrice and Helena.
*Alternate spelling, sanitArium listed
first.
D-GoetzHE-0410 (040210= 904 words)
Knoxville Railway and Light Company
There
is a parallel to the often asked question, “Why do bad things happen to good
people?” It might be expressed like this, “Why do good people (attempt to)
do bad things?”
Col.
Charles H. Harvey (1861-1935) and Col. William S. Shields (1853-1933) made many
contributions to progress in Knoxville and Knox County. With the hindsight of
over 100 years, we can ask why they led the Knoxville Railway and Light Co. to
attempt to convert Fountain City’s “crown jewel”—the Fountain City
Park—into a residential subdivision.
The
history of the park might have been quite different and sad indeed if Dr. H.E.
Goetz and his attorney, John W. Green of the law firm of Green, Webb, Cowan and
Ogle, had not instituted a lawsuit in 1924 to prevent the development.
Two
very prominent Knoxville businessmen, C.H. Harvey and W.S. Shields, were
respectively president and vice-president of the Knoxville Railway and Light Co.
at the time of the suit (Chancery Court No. 19472, Goetz vs. Knoxville Railway
and Light Company).
Charles
Henry Harvey was born in Anamosa, Iowa, on Oct. 10, 1861, the son of Edward M.
and Lucy (Clark) Harvey. He completed grade and high school in his native county
then worked for four years to accumulate funds for a college education. He
entered Beloit College (Wisconsin) and transferred to the University of Michigan
where he earned his Bachelor of Arts in 1885.
After
living the life of a cowboy for a year in Wyoming, he became secretary to the
general manager of the East Tennessee, Virginia and Georgia Railroad, based in
Knoxville. By 1889 he had been promoted to chief clerk but, only two years
later, took on extra work as bookkeeper for the Knoxville Electric Light and
Power Co. When the headquarters of the railroad was moved to Washington, D.C.,
he was made manager of the power company, which was acquired by the Knoxville
Street Railway Co. and renamed the Knoxville Traction Co.
In
1898 he was elected secretary. Four years later he was elected general manager
and in 1904 was elected president and remained as general manager. Due largely
to his efforts, the Knoxville Traction Co. and the Knoxville Power and Light Co.
were consolidated as the Knoxville Railway and Light Co. in 1905,
Col.
Harvey was also president of the Harvey Coal Co.; vice-president of the Fountain
City Land Co.; a member of the
Cherokee Country Club, the Wonderland Club and the Appalachian Club; Grand
Commander of the Knights Templar of Tennessee and a member of
St. John’s Episcopal Church.
The
other member of the management team was William Simpson Shields who was born at
Clinchdale, his family’s 3300-acre estate in Grainger County, Tenn., on Oct.
13, 1853, the son of James T. and Elizabeth (Simpson) Shields. His father was a
well-known lawyer and jurist and his brother, John K. Shields, became a U.S.
Senator and Chief Justice of the State Supreme Court.
William
received his education from private tutors at the Clinchdale home. He remained
on the farm until he was 30 years old and became a progressive, successful
farmer specializing in stock breeding.
However,
he tired of farming and moved to Knoxville in 1888 to establish the City
National Bank and become its first cashier. By 1892 he was president of the bank
which, in recognition of its strength, had been designated a depository for both
the State of Tennessee and the United States government.
Shields
also held many other responsible offices: vice-president of the Knoxville
Railway and Light Co., co-owner of Gillespie, Shields and Co. (wholesale
clothiers), trustee of Lincoln Memorial University, director of the Fidelity
Trust Co., director of Appalachian Mills, director of Security Warehouse and
Elevator Co., director of Callahan Construction Co. and director of the Morris
Plan Bank.
Active
as a member and the first president of the Cumberland Club; a member of the
Cherokee Country Club, the Rotary Club, the Knoxville Advertising Club and the
Elks; Shields was also a member and one-time president of the Tennessee Society
of the Sons of the Revolution. He belonged to the Second Presbyterian Church.
The
University of Tennessee’s Shields-Watkins Field was a testament to his
long-term services as a trustee of the University and the contributions he and
his wife, Alice (Watkins) Shields, made to the university.
Harvey
and Shields were the management team for the Knoxville Railway and Light Co.
which operated all the street railway lines and supplied electric light and
power for Knoxville and several of its suburbs. The company was featured in the
1915 “Commercial History of the State of Tennessee,” which described it as
follows:
The Company’s physical
property is in excellent condition, having been mainly constructed or
reconstructed, since 1903 at a cost of over $2,500,000. The Company owns
Chilhowee Park, recently enlarged and beautified. It also owns and operates
Fountain City Park.
(Emphasis added.) The street railway system, December 31st, 1914,
covers 29.825 miles of single and 11.582 miles of double track, equivalent in
total mileage of 52.989 miles of single track, all standard gauge. Equipment
consists of 65 open cars, 82 closed cars, and 11 work cars. The company has a
modern building devoted to car barns and shops, fully equipped for efficient
care and maintenance of equipment. The Power House is of up-to-date
construction, equipped with turbines and generators of 6,800 K.W. rated
capacity, giving ample reserve.
Last month’s article described Dr.
Henry E. Goetz and his Sanitarium which occupied the former Fountain Head Hotel
building overlooking the park. A future article will discuss the lawsuit in
which Goetz finally prevailed over the behemoth known as the Knoxville Railway
and Light Co. in the Tennessee State Supreme Court and preserved Fountain City
Park for public use.
D-Harvey-Shields-FCPark-0510.doc (050410= 1044)
Chapter 3
Chancery Court Decision
N.L.
Hicks in her book, “The History of Fountain City,” states, “One lot was
sold at the north-eastern edge of the park when the late attorney Ben Ogle,
according to Judge John W. Green, saw the deed and two words caught his eye. The
deed in stating the boundaries of the lot said it was bounded on one side by a public
park. Those two words were the basis of a law suit instituted to prevent the
destruction of the park.”
Dr. H.E. Goetz, owner of a sanitarium overlooking the park, and his
attorney, John W. Green of the law firm of Green, Webb, Cowan and Ogle, were
sufficiently convinced that they instituted a lawsuit to prevent the development
of roads and a subdivision in present-day Fountain City Park.
The
defendants in the 1924 suit were two very prominent Knoxville businessmen,
Charles H. Harvey, president, and William S. Shields, vice-president,
representing the Knoxville Railway and Light Co. which owned and operated all
the street railway lines and supplied electric light and power for Knoxville and
several of its suburbs. The company owned Chilhowee Park, which had been
recently enlarged and beautified. It also owned and operated Fountain City Park.
As with many street railways nationwide, the two parks served as destination
places to stimulate use of the rail service.
The
suit was lengthy and involved and proceeded through Knox County Chancery Court
(C. C. No. 19472) and the State Appeals Court. It was finally settled in 1926 by
the Tennessee State Supreme Court in favor of Dr. Goetz and the park was
preserved for public use.
Howard
Karnes was among the witnesses in the original Chancery Court hearings. Karnes
and C.B. Atkin had purchased the railway and real estate from the Fountain Head
Railway Co. in 1905. Karnes was asked, “Was that a free park or a pay park?”
He answered, “I always considered it a free park, I never heard of
anything else.” “Was it your understanding or not that the public always had
access to that park whenever they pleased?” “Yes sir.” “Was it intended
to be for the benefit of the public?” “Yes, that is what I have always been
told.”
His
statement was ruled inadmissible due to the fact that he represented the
Fountain City Land Co., a predecessor to the current owner of the title by
several years. However, subsequent
witnesses gave similar testimony.
Callaway
Moore’s testimony was dismissed by the Chancellor as merely his opinion. He
had stated, “… the old park that was a park when I first came to this
section of the country—it is my impression that it was to remain—it was a
permanent proposition.”
Dr.
Goetz himself was asked, “Were there any representations made to you about the
location of the park or of the main park in Fountain City when you bought?”
“Yes sir.” “Who made them?” “Mr. Charles Wright, a real estate man,
and Mr. (C.A.) Gillespie and Mr. Mike Shetterly, agent for the Fountain Head
Land Co. or Fountain City Land Co.”
“What
did Mr. Shetterly tell you?” “He verified rather what the others had told
me. The others told me it was a permanent park and read me the clause of the
deed from McBee to Gillespie in which it stated that I should have full ingress
and egress to the park at all times.” “What deed?” “The McBee to
Gillespie; and to the Lake Park, which was the lower place, including one of the
springs, and that the water right and free passage to that and the spring and
lake were included in my rights, and Mr. Shetterly then verified that fact
before the deeds were finally made, in conversation with me.”
The
defendant asked that Goetz’ testimony be ruled inadmissible on the grounds
that he bought his property several years after the Fountain City Land Co. had
sold the lower tract to the Knoxville Railway and Light Co. Therefore, they
maintained, Wright, Gillespie and Shetterly could not speak for KRW&L. The
Court overruled the defendants but they reserved the right of appeal.
As
the suit proceeded most of those owners of properties adjoining the Park Tract
(7 acres) and the Lake Tract (1.75 acres) joined Goetz in the suit. They were
C.W. and Mary Sanders, C.A. and Etta Curtis, B.F. and Rachael Wilkerson, R.R.
and Nettie Jones, W.E. and Dossie Cooper, Carl R. Martin, Anna Lowe, Minnie F.
Haynes, Callaway Moore, Winnie Lee Walters and Hulda Sands.
The decision of the Chancery Court (Dec. 22, 1924) largely favored the Knoxville Power and Light Co. (the new name of the Knoxville Railway and Light Co.). The Court of Appeals favored Dr. Goetz and his supporters. On Nov. 20, 1926 the Tennessee Supreme Court handed down their opinion supporting the decision of the Court of Appeals. Fountain City Park was preserved for public use.
Chapter 4
Supreme Court Decision
When
the Knoxville Railway and Light Co. proposed to establish a residential
subdivision in present-day Fountain City Park, Dr. H.E. Goetz, owner of a
sanitarium overlooking the park, and his attorney, John W. Green of the law firm
of Green, Webb, Cowan and Ogle, were sufficiently convinced of the validity of
their case that they instituted a lawsuit to prevent the development.
The
defendants in the 1924 Chancery Court action were two very prominent Knoxville
businessmen, Charles H. Harvey, president, and William S. Shields,
vice-president, representing the KR&LC. The company owned and operated all
the street railway lines in Knox County and supplied electric light and power
for Knoxville and several of its suburbs. They owned Chilhowee Park, which had
been recently enlarged and beautified, and they also owned and operated Fountain
City Park.
The
suit was lengthy and involved as it proceeded through Knox County Chancery Court
(No. 19472). The court’s decree was recorded on Dec. 22, 1924. Then the case
was carried to the State Court of Appeals. That decree was handed down on Oct.
31, 1925. The KR&LC pursued the case in the Tennessee State Supreme Court
which decreed in favor of Dr. Goetz, et al on Nov. 20, 1926. It had taken almost
two years to proceed through the courts but the park was preserved for public
use.
The
back story is also complicated. On September 21, 1914 the Fountain City Company
deeded the 7 acre Park Tract and 1.75 acre Lake Tract to the Knoxville Railway
and Light Co. The deed had a significant provision, to wit, “Except that free
and unobstructed access to the spring on the North Line of the property first
above described as being the Spring Tract of Fountain City Park shall be given
to Frank McBee, and the public generally such access, however, to be from the
North side of the property hereby conveyed and at or near the Spring Tract.”
Just
eleven days previous to that deed (Sept. 10, 1914), Frank McBee had purchased
the parcel known as the Hotel Property (later the Goetz property) and his deed
provided, “… the right of access to the adjoining Park and use of spring on
same.”
With
their ownership of the park and its attraction as a major destination place, the
street railway was successful for a number of years. However, by the 1920s, the
Knoxville Railway and Light Co. proposed to subdivide the park property into
residential building lots with roads and alleys.
After
receiving depositions from several adjoining property owners and briefs by both
parties to the suit, the Chancery Court generally supported the reasoning of the
Knoxville Power and Light Co. (as the KR&LC came to be known) and Goetz and
Green had only one recourse—to carry the suit to a higher court.
The
result was more favorable this time. The decree of the Court of Appeals (1925)
seemed to have settled the case when it included this paragraph in its decree:
The Court of Appeals finds
and decrees that by virtue of the deed executed on September 10, 1914, by
Fountain City Company to R.L. McBee, conveying to said McBee about seven acres
off of the northern portion of the original park (now known as the Hotel Tract),
which deed contains among other things the following clause: “also the right
of access to the adjoining park and the use of the spring on same,” the said
complainants, Goetz et al, are entitled to use and enjoy the ground as a park in
the manner and to the full extent as used by the public under the terms of the
lease and that the conveyance on September 21, 1914, of the reversion in the
said park by Fountain City Company to the defendant, could not and did not have
the effect to curtail the right of said McBee and his vendees to access to the
park and spring and Lake Tract (the Court being of the opinion that the Park and
Lake Tract constitute together the Park and that the easement of the said H.E.
Goetz and others covers both tracts).
However,
the Knoxville Power and Light Company pursued their cause still further by
submitting it to the Tennessee State Supreme Court. The lengthy Supreme Court
opinion (1926) included this clause:
We are further of the
opinion that the complainants (Goetz, et al), as McBee’s successors in title
to the hotel tract, may claim and enforce this easement, regardless of whether
it was specifically mentioned in the mesne (intervening) conveyance or not, and
it is therefore unnecessary to determine whether the specific reference in all
of the deeds, except the one from McBee to Gillespie, to the park as the south
boundary of the lots conveyed, is a sufficient reference to the easement to
amount to an express conveyance of it. … An easement which by grant,
reservation or prescription is appurtenant to land is not a mere privilege to be
enjoyed by the person to whom it is granted or by whom it is reserved. It passes
by a deed of such person to his grantee and follows the land without any mention
whatever.
On June 15, 1932, after considerable negotiation, the Tennessee
Public Service Co. (successor to the Knoxville Power and Light Co.) executed a
deed to Anna H. Lowe, Carl R. Martin, C.A. Moore, Arthur Savage, Fred W. Keith,
John W. Green and Emma J. Clark, as Trustees of the Fountain City Park
Commission. Upon token payment of
$10, the Commission was given the responsibility of holding the park property
“to be used and enjoyed as a public park for the benefit and use of the public
generally, under such reasonable rules and regulations as may be made, from time
to time, by said (Commission) for the protection of said property and the
public.”
Now, more than 75 years later, the Park Commission and the Fountain City Lions Club continue to manage the Park and Lake for the enjoyment of the public.
D-FtnCityPark-4-0710
(070610=1093 words)
Chapter
1: Thanks to
Vicky Bills,
Frank Weathers, Eric Head, Douglas Davenport and Sally Polhemus for their
assistance with the text and photographs for this article. The next several
articles will consider the case of Goetz vs. Knoxville Railway and Light Company
that was carried to the Tennessee State Supreme Court before it was settled.
Additional photographs may be found on www.fountaincitytnhistory.info/.
Chapter
3: A subsequent article will discuss the progress of the
case of Goetz vs. Knoxville Railway and Light Co. in the Court of Appeals and
the Tennessee State Supreme Court. Two previous articles on the principal
parties in the Fountain City Park law suit may be found on
www.fountaincitytnhistory.info/.
Chapter
4 : Thanks to Darla Brock of the Public
Services Section of the Tennessee State Library and Archives for her assistance
in retrieving the Court of Appeals decree in the case of Goetz vs. Knoxville
Power and Light Co. (formerly known as the Knoxville Railway and Light Co.).
Thanks also to the late Ivan T. Privette, Esq. an excellent attorney and park
historian. Three previous articles on the Fountain City Park lawsuit may be
found on www.fountaincitytnhistory.info/.