USA > Georgia > The history of the State of Georgia from 1850 to 1881, embracing the three important epochs: the decade before the war of 1861-5; the war; the period of Reconstruction, v. 2 > Part 14
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" BROWN -- ' Well, sir, I will hear you.'
"NICHOLLS-' On account of your church relations, Gen. Toombs does not know whether you hold yourself amenable to the code, and while I admit this is an irregular proceeding in behalf of Gen. Toombs, I make the inquiry.'
"BROWN-' It seems to me, this course is extraordinary. Gen. Toombs has nothing to do with my church relations. If he desires to send me a communication, I am ready to receive it at any moment. I have conferred with a friend who does not reside in Atlanta, but I will telegraph him at once, and respond to a communication, if made, after referring it to him, without unreasonable delay. Are you Gen. Toombs' friend in this matter ? '
"NICHOLLS-' I am not, in that sense. I expect to have nothing whatever to do with the matter. I only come to make this inquiry, at Gen. Toombs' suggestion. He may desire a little time, as he will have to get a friend who resides out of the State, for he does not wish to complicate his friends in the State.'
" BROWN-' I shall not trouble persons out of the State. I have a friend in the State who will serve me.'
" NICHOLLS-' I would like to know whether you hold yourself bound by the code ?'
"BROWN-' Say to Gen. Toombs distinctly, that I am ready to receive any communi- cation that he desires to send, and if I don't respond properly, he knows his remedy.'
" NICHOLLS-' What I have done in this instance is simply an act of friendship to Gen. Toombs, because he requested it. I expect to take no part in any unpleasant affair between you and him.'
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COLONEL J. C. NICHOLLS'S VERSION.
"BROWN-' Say to Gen. Toombs I hold myself ready to give him any satisfaction which may be due him, or to which he is entitled as a gentleman.'
" This language is in Gen. Toombs' possession in writing, over my own signature To be certain that he received it as uttered, it was sent to him, on the 10th, after he left Atlanta, by the first express to his home at Washington.
" This code-of-honor gentleman left Atlanta the day after this language was uttered. He responds in the newspapers. I leave the public to judge who is the poltroon, and whether Gen. Toombs preferred newspaper artillery to heavier metal.
"JOSEPH E. BROWN."
The following publication by Col. Nicholls, giving his version of the interview, was published on 19th of July, 1872:
" ATLANTA, July 18, 1872.
"GEN. ROBERT TOOMES, ATLANTA, GA. :
"Dear General :- A card is published this morning in the Constitution and Sun, over the signature of Joseph E. Brown, which purports to give the verbiage of a conversation had with me on the 9th instant.
"This statement of the conversation is substantially untrue.
" Gov. Brown states that he was advised to see mne 'and have me to agree in writing what occurred.' He failed to follow the advice. He has not approached me on the subject.
" As Gov. Brown has seen fit to pursue this extraordinary course, I feel that it is due to you and to myself, that you publish my statement of the conversation.
" Sincerely your friend,
"JNO. C. NICHOLLS."
"A STATEMENT OF THE MATERIAL FACTS OF A CONVERSATION HAD WITHI JOSEPH E. BROWN ON THE 9TH INSTANT.
"I said : 'I call on you in behalf of Gen. Toombs to ascertain if you are responsible, in the way usual among gentlemen, for the language contained in your card of a recent date ? '
" He replied, 'I am responsible for my language.'
" I then said, 'Gen. Toombs desires to know if you will give him satisfaction under the code. If he should address a note to you demanding a meeting, will you meet him in the usual way ?'
" Iexplained that, whilst the inquiry was perhaps made in an informal manner, yet it was thought to be warranted by his well known position in the church. To this he bowed assent and answered : .
"' If Gen. Toombs addresses me a note, I will consult with a friend, and then reply to it. I will answer your inquiry when he submits it in writing.' He declined to answer the question more directly.
"In my opinion, from the language and manner of Gov. Brown, he will decline to answer the inquiry in the affirmative, if submitted by you in writing. I am impressed with the conviction that it is his purpose to use a formal call, to your injury, under the constitution of this State.
[Signed] "JNO. C. NICHOLLS.
"TO GEN. ROBERT TOOMES."
To this Gov. Brown made the following reply, concluding this episode,
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GOV. BROWN'S FINAL PERSONAL CARD AGAINST GEN. TOOMBS. 485 which, excited a profound interest at the time and a large amount of discussion :
"TO TIIE PUBLIC.
." ATLANTA, GA., July 20, 1872.
" Editors Constitution : I have read the card of Col. Nicholls, published in your paper yesterday. . Between him and myself there seems to be a conflict of memory as to the ver- biage and purport of the interview. But General Toombs cannot shield his poltroonery in that way, for he could not mistake the language over my own signature, sent him by express, and doubtless received by him, before he penned his last card .published five days afterwards.
"Col. Nicholls, in his card, referring to my own of the previous day, says, 'Gov. Brown states that he was advised to see me, and have me to agree in writing what occurred.' This statement nowhere appears in my published card, but it does appear in a memo- randum appended to my version of the interview, which was sent to Gen. Toombs by express. The proof is conclusive, therefore, that my written statement was received by Gen. Toombs.
" The verbal report of a conversation would never be the guide to a proud brave man as to what his honor demanded, when he had in writing before him, the pledge that he would receive, if he called for it, the satisfaction due a gentleman.
"JOSEPHI E. BROWN.".
. Very fortunately a meeting did not take place, and two very valuable lives were spared, while the State was saved the spectacle of two ven- erable and distinguished Statesmen in a life and death encounter. Col. Nicholls erred in supposing that Gov. Brown did not mean to go to the field. And the public universally credited to Gov. Brown the firm pur- pose to fight.
Commenting upon this matter, "H. W. G.," in an exceedingly clever sketch of these " two masterful men," as he felicitously calls them, thus speculated on the result of a meeting:
" While I join with all good men in rejoicing that this duel was arrested, I confess that I have been wicked enough to speculate on its probable result-had it occurred. In the first place, Gen. Toombs made no preparation for the duel. He went along in his careless and kingly way, trusting, presumably, to luck and a quick shot. Gov. Brown, on the contrary, made the most careful and deliberate preparation. He made his will, put his estate in order, and then clipped all the trees in his orchard practicing with the pistol. Had the duel come off-which fortunately it did not -- Gen. Toombs would have fired with his usual magnificence and his usual disregard of rule. I do not mean to im- ply that he would not have hit Gov. Brown ; on the contrary, he might have perforated him in a dozen places at once. But one thing is sure-Gov. Brown would have clasped his long white fingers around the pistol butt, adjusted it to his gray eye and sent his bullet within the eighth of an inch of the place he had selected. I should not be sur- prised if he drew a diagram of Gen. Toombs, and marked off with square and compass the exact spot he wanted to hit."
Gen. Toombs had made grave charges in his card against the parties
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GOV. BROWN'S LETTER TO THE PUBLIC.
connected with the compromise of the case between the state and the Mitchell heirs, which Gov. Brown was not willing to rest under without a statement of the facts in refutation of the charges. He was, how- ever, advised by his friend, Col. Gardner, that he could not address any further communication to Gen. Toombs on the subject, but that he could with propriety address a communication to the public, giving all the important facts in the case. He then addressed to the editor of the Constitution, the writer then filling that position, the following publication, which is given to complete the record of this noted contro- versy that filled at that time so large a share of public thought:
"ATLANTA, GA., August 5, 1872.
" Editor Constitution :
" I noticed, a few days since, an abstract in your editorial of the evidence taken before the Committee appointed by the General Assembly, known as the 'Bullock Committee,' in which reference is made to the property in Atlanta, known as the Mitchell property, or park, in front of the Kimball House. It seems some testimony was taken before the Committee, which led them to conclude that there had been fraud, or improper influence in the settlement of the case, between the heirs of Mitchell and the State of Georgia.
"As I was one of the original counsel who brought the action for the recovery of this property ; and of the portion then held by the city of Atlanta ; and as I and my part- ner, Messrs. E. Waitzfelder & Co., of New York, purchased over $50,000 worth of the property at the sale, after the compromise had been made, and paid that amount in rash ; and as we are now constructing a building on a portion of it, at a cost of about $27,000, I feel that my interest is such as to justify me in taking some notice of any- thing that relates to the title of the property.
" I was applied to, while practicing law with Judge Pope, prior to the time when I went upon the Supreme Bench, to bring suit in behalf of the heirs of Mitchell for the recovery, not only of the park property, lying between the passenger shed and Decatur street, but also of the property lying between the passenger shed and Alabama street, on the other side, running from Lloyd street up to Whitehall.
" Of this property, the square of five acres, bounded by Alabama, Decatur, Lloyd and Pryor streets, was originally conveyed by Samuel Mitchell to the State of Georgia, 'for placing thereon the necessary buildings which may hereafter be required for public pur- poses at the terminus of the State Road.' In the same deed Mitchell conveyed, for the use and purposes of said road, a space in breadth wide enough to answer for a right of way for the road, to be designated by the engineer for said purpose, through his lot, with the privilege of taking and using timber, stone and gravel, being on said space, necessary for the construction of said road. In other words, he conveyed to the State a right of way through his lot, upon which to locate the Western and Atlantic Railroad, with five acres at its terminus, for a location of the buildings required for public pur- poses at its terminus. Some time thereafter Mitchell also conveyed to the Macon and Western Railroad the land bounded as it now is, by Alabama, Whitehall and Pryor streets on three sides, and the Western and Atlantic Railroad, or its right of way, on the fourth, (except the corner that had been sold off, and which is now occupied as James' bank building and contiguous buildings,) which he conveyed to said road for rail- road purposes exclusively.' 'The state located, in connection with the railroad companies,
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GOVERNOR BROWN'S LETTER TO THE PUBLIC.
the general passenger shed, upon the portion of the land granted to her, and also located the road upon the right of way through Mitchell's lot to said car shed, and also located such buildings as were, at the time, thought necessary upon other portions of the five acres.
" Subsequently it was ascertained that the location where the park now is, was not well suited for purposes of the road, and that it had no special use for the portion of ground lying between the car shed and Alabama street, and a contract was made between the State, represented by the proper officer of the Western and Atlantic Railroad, and the Macon and Western Railroad, by which the State swapped to the Macon and Western R. R. the portion of land conveyed to her by Mitchell, lying south of the car shed down to Alabama street, for a piece of land belonging to the Macon and Western Railroad, where the present freight depot, platforms, etc., of the Western and Atlantic Railroad now stand. And the Western and Atlantic Railroad has located upon the piece of ground which it received from the Macon and Western Railroad in exchange for the portion of land conveyed by Mitchell to the State, its depot, platforms, etc, so that the State got for the portion of land conveyed by Mitchell the land upon which her depot, platforms, etc., now stand. She also got a location for a passenger shed, and for all tracks necessary for the working of the road.
"After the swap between the Macon and Western Railroad and the Western and Atlantic Railroad, by which the Western and Atlantic Railroad got the land she needed for her depot, the Macon and Western Railroad located its depot upon the land which it received from the State in exchange, and upon the land conveyed to it by Mitchell.
" In 1859, the State having no further use for the Park property for any railroad pur- pose, an act was passed by the General Assembly, authorizing the city of Atlanta to enclose and beautify it as a park. Thus the matter stood at the close of the war, when it was found that the freight depot, tracks, and probably turn-table of the Macon and Western Railroad, located on the Mitchell property, near the car-shed, obstructed Pryor street, and was a great nuisance to the city, if rebuilt, and kept up there ; and it was agreed between the City and the Macon and Western Railroad that they would exchange lands, and in carrying out that agreement the Macon and Western Railroad conveyed, by quit claim (for she would not give a warranty), the portion of the land of the Mitchell property, which the State had swapped to her for the lands where the Western and Atlantic Railroad Depot now stands; and the portion of land conveyed to her by the Mitchell heirs, embracing the vacant space south of the Railroad, between Decatur and Lloyd streets. The Macon and Western Railroad then moved her depot out to its present location, and thus the matter stood when the Mitchell heirs applied to me and my partner to bring suit for the property. The State had received all the benefit which she desired or could need for railroad purposes under Mitchell's grant. She had her tracks located upon the right-of-way, and she had her passenger shed upon the property, and she had her freight depot upon the land which she had received in exchange for a portion of the property; and she surely could have no further claim to the property which she had exchanged for other lands upon which to locate her depot. But she had no use whatever for the Park property, for the purpose for which it was originally conveyed to her, nor had she pretended to use it for any such purpose for some eight or ten years previous to the complaint made by the heirs.
" I refused to bring the action until I had carefully examined the authorities, which I took time to do, and satisfied my own mind very clearly, that if the law were admin- istered, there could be no doubt of the right of the heirs to recover back not only the
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GOVERNOR BROWN'S LETTER TO THE PUBLIC.
property conveyed to the State, for railroad purposes, and abandoned by her for that use, but the property conveyed to the Macon and Western railroad for railroad pur- poses exclusively, and also abandoned by her for railroad purposes when she exchanged it to the city.
"After a careful examination of the authorities, I advised the heirs that in my opinion, they had a right to recover, and the firm of Brown & Pope was employed to bring the action, with the understanding that we associate Judge Pittman, and Col. Bleckley, Mr. Dougherty or Mr. Hill with us. We did afterwards associate Judge Pittman and Col. Bleckley, and the action was commenced.
" I predicated my opinion as to the rights of the heirs, upon the fact that the property had been conveyed by their father for a specific and particular use, and for no other use, and when the State and the Macon and Western Railroad Company found that they no longer needed the property for that use, and abandoned it, that it reverted to the donor ; upon the principle that if I convey land to a religious congregation for the pur- pose of erecting a church upon it, and for no other purpose, and the congregation should abandon it for that purpose, and sell it to A. B. who locates a doggery upon it, this would be in violation of the contract under which the congregation held the prop- erty, and it would revert to me as the donor. Or, take the very case itself, suppose after Mitchell had made the conveyance to the State of Georgia, giving the right of way through his lot, and five acres at the end of it for a location for the necessary buildings, &c., the engineer of the road had changed its location entirely and had run it to another terminus, not touching Mitchell's lot, and had never used it for railroad purposes. Would it be contended that the State would have a good title to the property ? Surely not. Then suppose after its location upon Mitchell's land, it had been kept there for five years and for some good reason the Road's location had been changed and thrown entirely off the lot, why would it not, in law, equity and justice have reverted to Mitchell, on the ground of its entire abandonment for the purposes of the grant ? If so, and the State used all she needed of it for railroad purposes and swapped a portion that she did not need for the proper location of her necessary buildings elsewhere, and abandoned another portion that she did not need for the purpose of the grant and turned it over to the city for a park, why, upon the same principle would it not revert to the donor or his heirs ? I might give very numerous cases from the books sustaining this doctrine which is founded not only in sound law, but in the broad principle of natural equity; but I will not enlarge upon this point.
"Thus the matter stood, pending the litigation, when I went upon the Supreme Bench, and I turned over the case, and subsequently the obligation for the fees, so far. as I was concerned, to Judge Lochrane, who was then practicing law, and under it, he represented me. And while I was upon the Bench, the heirs of Mitchell becoming im- patient with the delay of a long, tedious litigation, and being broken up by the war, and as I am informed, very poor, after having conferred together, concluded to apply to the Leg- isfature to order the re-conveyance of the Park property, the portion which the State did not need for railroad purposes, to them, as an act of justice ; and a memorial was brought before the General Assembly asking a re-conveyance. This was met by the determined opposition of Gov. Bullock and Col. Hulbert, the then superintendent of the road, who went so far as to break the park fence and run a short track out into the park and locate a few cars to stand there to re-possess the property for railroad purposes, though all could see at once, that this was simply intended to make the appearance of railroad use, when it was not in fact needed for any such purpose. The case was brought before
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GOVERNOR BROWN'S LETTER TO THE PUBLIC. 489
the General Assembly and referred to a special committee of five from the Senate and nine from the House, composed of a majority of Democrats from cach house, with a Democratic Chairman from each.
" The superintendent of the road, who actively opposed the re-conveyance to the heirs, appeared before the committee as the Journals show, and submitted evidence against the proposed re-conveyance. Having considered the question, the committee, through their Democratic Chairman in each House, submitted a unanimous report in the following language :
"' The committee to whom was recommitted the claim, of the heirs of Samuel Mitchell, after having had the same under consideration, with the facts for and against the claim, unanimously recommended the passage of the bill now before the Senate, reconveying the property claimed.' The bill came up on its passage in the Senate and was defeated by two majority. Next morning a motion was made to reconsider it and lost by one majority. On the final vote it stood for and against the heirs, as follows: Democrats, for, 10; Republicans, for, 8; Democrats, against, 7 ; Republicans, against, 12. So that a committee composed of a majority of Democrats, with a Democrat as Chairman from each House, unanimously recommended the reconveyance of the park property to the Mitchell heirs without a dollar of compensation, and they were sustained in the Senate by a majority of Democrats voting for it, while the majority of Republi- cans voted against it.
" After this action, the heirs of Mitchell through their counsel, proposed a compro- mise to the City Council for the portion of land held and claimed by them under the conveyance from the Macon and Western railroad, for which suit had been brought. The matter was very thoroughly canvassed, and the compromise was finally agreed upon, by which the heirs conveyed to the city the portion of land lying between Pryor street and Whitehall, which was included in the grant from Mitchell to the Macon and Western road, and one hundred feet along the side of Pryor street, fronting on Ala- bama street, of the property originally conveyed by Mitchell to the State, and by the State conveyed to the Macon and Western road, and by that road to the city. And the city agreed to convey to the Mitchell heirs the balance of the property which had been originally conveyed to the State, and by her conveyed as aforesaid, from the line of said one hundred feet down to Lloyd street, being the property between the present passen- ger shed and Alabama street, extending to Lloyd street.
" In the meantime, prior to the compromise between the heirs and the city, the Superintendent of the Western and Atlantic railroad, with the asseut of the Governor and the other railroad companies interested, had located the new passenger shed, and had gone forward with the construction of it until there had been probably more than $100,000 expended. This new passenger shed was not placed upon the original location of the shed which existed prior to the war, but for the convenience of the roads, in running the tracks into it, it was so located that about one-fourth of it was upon the land originally conveyed by Mitchell to the State, and afterwards conveyed by the State to the Macon and Western road, and subsequently conveyed by the Macon and Western road to the city, and which the city had agreed to convey to the Mitchell heirs, but to which she did not make a deed until after the compromise with the State, though a contract of compromise had been agreed on between the heirs and the city.
" Pending these transactions the counsel for the Mitchell heirs mentioned to me that they had determined to propose a compromise to the State in reference to the park property. I inquired into the then status of that matter, and was informed that some
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time in the previous spring Mr. Kimball had concluded to purchase all the conflicting titles to the property, and had made a contract with the heirs to purchase their right, and had taken a deed from them and paid them some money ; intending also to pur- chase the State's right, whatever it might be, and the part to which counsel might be entitled under their contract with the Mitchell heirs. But finding difficulties in extin- guishing all the outstanding titles, he soon after re-conveyed it to the heirs and subse- quently, by a contract between him and them, became their agent to take charge of the matter, and effect, if possible, a compromise with the State, which he was then attempt- ing to accomplish. And he desired the aid of their counsel in its consummation. I asked what it was proposed the heirs should pay the State for her claim to the land, and was informed that they proposed to pay the Western and Atlantic railroad $35,000 toward the construction of the new depot. My opinion was, at the time, that this was more than the heirs ought to pay. I regarded their's as the better title, and said if it were my case I would never consent to pay $35,000 for a compromise with the State. But it was insisted that the heirs were anxious to realize as much as possible, and that they did not wish to wait for an almost interminable litigation, and that they preferred that course. I made no further objection and the matter was brought before the Leg- islatule, I think, by a memorial prepared by their counsel; but Mr. Kimball, who was their agent under the contract with them, had the active management of the matter. After the case was submitted, I felt an interest in their success, because I believed their claim a just one, and while I took no very active part in the matter, when approached on the subject, I always said I believed their proposition was a liberal one, and that the State ought not to hesitate to accept it.
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