William Faulkner would have nodded knowingly at a pair of decisions handed down earlier this month by the Tennessee Court of Appeals. “The past is never dead," the Mississippi novelist famously wrote. "It’s not even past.”
The appellate panel ruled on March 3 that the Ladies’ Hermitage Association will not have to hand over the 1830s Tulip Grove mansion to a private owner. The same day, it turned away the latest legal effort to reverse a land condemnation on Nashville's Public Square that happened in 1951 and has been in dispute, off and on, almost ever since.
Barring successful appeals to the Tennessee Supreme Court, the rulings would appear to lay to rest two different legal claims that each had the potential to change the existing order drastically, at The Hermitage and on the courthouse square.
In the case of Tulip Grove, the mansion built for Andrew Jackson's niece and White House hostess Emily Donelson, heirs of the woman who donated the mansion to the keepers of the nearby Hermitage asserted that the Ladies’ Hermitage Association had breached the terms of the deed, which requires it to pay a share of admissions fees to them every year.
Jane Buntin, herself a longtime LHA member, donated the property in 1964. The deed provided that she and her heirs would get one third of the gate receipts it produced for the next 99 years. The agreement requires the LHA to pay a minimum of $1,200 a year. In the ensuing 43 years, the association reportedly paid out more than $366,000 to Buntin and, after her death in 1981, to her heirs.
Some years ago, however, the LHA closed Tulip Grove to regular visitors, and today it is open only when hired out for special events such as weddings. After the house was shuttered, LHA began paying only the minimum of $1,200 annually to the heirs.
In 2007, Buntin's granddaughters and heirs Jane Field and Carolyn Wilmot Gray filed suit over the deal in Davidson Country Chancery Court. Field lives in California and Gray in Wisconsin. Their complaint, filed by W. Gary Blackburn of Blackburn & McCune PLLC, claimed that by failing to keep the house open and generating money, the association had violated the terms of the deed and that ownership of the property — including 26 acres of prime land for real estate development — should revert to them.
They also sought an independent audit of gate receipt records from the past four decades, with a view toward recovering money they believed they ought to have received in past years.
LHA, represented by Robb S. Harvey and Heather J. Hubbard of Waller Lansden Dortch & Davis LLP, responded by asking the court to declare that their interpretation of the deed was correct and that their ownership of the property was secure. Chancellor Carol L. McCoy did just that in 2008, ruling in favor of the LHA. Field then appealed.
Upholding McCoy's ruling, Judge Patricia J. Cottrell of the Court of Appeals found that the LHA had held up its end of the bargain by paying the $1,200 a year. "The deed does not say, as the heirs urge us to interpret it, that if LHA fails to make the correct payments under its obligation to pay the heirs one third of the gate receipts, then the property reverts," Cottrell wrote. "To the contrary, the reversion language is attached only to the failure to pay $600 twice a year."
Blackburn could not be reached last week to comment on the decision.
The Public Square claim involved a building demolished to make way for the Victory Memorial Bridge. Until after World War II, there were retail structures, warehouses and offices on all four sides surrounding the courthouse, including the east side, where the buildings backed up to the Cumberland River. The city condemned the A.L. Kornman Building, at the north end of that eastern row, so the bridge could connect what is now James Robertson Parkway with East Nashville.
After the bridge opened in 1956, a 26-by-114-foot strip of land formerly occupied by the Kornman Building remained unoccupied next to it. In 1959, the A.L. Kornman Co. sued the city, asserting that the thin parcel "remained unused and unneeded and that this property was, therefore, abandoned." That case went all the way to the Tennessee Supreme Court, which decided that the owners had already been adequately compensated when the land was condemned.
The Kornman folks, clearly a stubborn bunch, tried to wrest control of the land again in 1963. They parked some old cars on it to show it belonged to them. The authorities towed them away. So they pitched a tent there. This time the state, which had taken control of the property from the city, took down the tent and fenced off the land.
Having made its point, the company sued again in 1964 over what it said was the unlawful taking of its property. Again, the case went to the state's highest court, and back to a lower court, and back to the Supreme Court. It ruled in 1965 that "an easement taken by eminent domain proceedings can be abandoned," a seeming win for Kornman. But the Court of Appeals found in 1967 that no such abandonment had taken place in this instance.
The heirs to the Kornman firm resumed the struggle in 2004. Ben H. Cantrell of the Tune, Entrekin & White law firm brought suit that year on behalf of Nashville real estate developer Edwin B. Raskin and his wife Rebecca K. Raskin, as well as Charles M. Myer III, a Cincinnati physician, and his wife Virginia Myer. The complaint recited the prior decisions in favor of the city and state but nonetheless accused Metro Nashville of "repeatedly trespassing" on the land and taking it without just compensation.
Circuit Court Judge Barbara Haynes last year granted a motion by Metro Legal's James Earl Robinson, Cynthia Ellen Gross and Philip Daniel Baltz to toss out the case. Haynes found that, because the state has a "pervasive" easement over the land, Metro's use of it does not infringe on the plaintiffs' rights. Judge Andy D. Bennett’s opinion at the appellate level has affirmed that finding.
Efforts to reach Cantrell last week were unsuccessful.