Douglass v. City Council , 118 Ala. 599 ( 1897 )

HARALSON, J.

It is stated in 15 Am. & Eng. Encyc. of Law, 1064, that “Municipal corporations hold the title to streets, alleys, public squares, wharves, etc., in trust for the public; and upon principle, such trust property can no more be disposed of by the corporation .than can any other trust property held by an individual.” In the note to the text, many decisions are cited in support of the principle stated. So, it has been held, that trustees of a town ’have no authority to convey streets, alleys or public grounds, and such conveyances are absolutely void. — Giltner v. Trustees of Carrollton, 7 B. Monroe, 680; Morris v. Improvement Co., 38 N. J.. Eq. 304, and authorities there cited; Harn v. Common Council, 100 Ala. 200; Webb v. City of Demopolis, 95 Ala. 116. In the case last cited, which had reference to a public street — over which, in general, the city has greater authority in the matter of the direction of the uses to which it may be subjected than it 'has over a public park — it was said: “The city never had any alienable title to or right in the street. It could never have granted it, or any part of it, away, for any purpose whatever. Having no power of direct alienation, it could not pass title directly by submitting for the statutory period to private possession, claim and use.”

Judge Dillon states the rule to be, that “municipal corporations possess the incidental and implied right to alienate or dispose of the property, real or personal, of the corporation of a private nature, unless restrained by charter or statute; they can not, of course, dispose of property of a public nature, in violation of the trusts' upon which it is held, and they can not, except under valid legislative authority, dispose of the public squares, streets, or commons.” — 2 Dillon on Munic. Corp., §§575, 650, and numerous authorities cited. Another phase of the rule should be added in this connection, as we find it stated in the Encyclopedia: “When lands, held by a municipality for public use, are not subject to any special trust, the legislature may authorize a municipal corporation to sell and dispose of the same, or to apply them to uses different from those to which they are devoted; but in the absence of such authority, the municipality has no implied power to do so.' * * If, however, the lands have been dedicated by private individuals for a public park or square, the legislature has no authority to authorize any diversion from the uses to which they ivere originally dedicated.” — 17 Amer. & Eng. Encyc. of Law, 417, and authorities.

In this case, on the 17th of September, 1850, F. M. Gilmer and his wife, in consideration of three hundred dollars paid to said Gilmer by the city council of Montgomery, sold and conveyed to said city council a piece of land in said city, the subject of this suit, which is particularly described in the conveyance, and is called “Gilmer Park.” The conveyance contained the condition: “Said lands to be used only as a common or street; if otherwise, to revert to me or my heirs.” Neither the park, nor any portion of it, has ever been devoted to street purposes; but, on the 19th February, 1877, as alleged, the city council of Montgomery, by ordinance, set apart and dedicated to the public use, as a public park or pleasure ground, the lands conveyed to them by said Gilmer, known as “Gilmer Park,” which ordinance is still of force. It is further alleged, that shortly after the adoption of said ordinance, the said city council caused the said Gilmer Park to be inclosed with a fence, and caused a number of trees to be planted on or about it, and from that time down to about the 20th January, 1897, the said park remained inclosed, find was held and treated and used as a park, for the use and benefit of the inhabitants of the city of Montgomery, etc.

The said F. M. Gilmer died, leaving a widow and two children. The defendant, The Alabama Midland Railway Company, purchased from-his widow and these two children, for the recited consideration of $300, all their right, title, interest and reservation in and to the lands known as the “Gilmer Park.” This company, according to the allegations of the bill, and as appears to be true, for the purpose of promoting its terminal facilities and its connection with the Mobile & Ohio Railroad Company, induced the city council of Montgomery, by ordinance, to grant to the Belt Line Railway Company — a local company in the city — the right to put down and operate an additional main line track through Gilmer Park, etc.; and, also, to adopt another ordinance at the same time — both ordinances having been prepared, as alleged, by the counsel of the Alabama Midland Railway Company, and introduced, adopted and approved on the same days. Manifestly, these ordinances constitute but one transaction, designed for the same purpose. The two might as well have been adopted as one. The latter ordinance, after reciting the sale by Gilmer of said park to the city; the purpose of its conveyance; the condition of its reversion to his heirs; the purchase of the reversionary interest of the heirs of Gilmer by said Alabama Midland Railway Company, contains this further recital, by way of preamble: “And whereas, the exigencies of public business and the necessity of better transportation facilities have induced the city council of Montgomery to grant to the Belt Line Railway Company the right and privilege of laying down a railway track through, over and across said triangular park, otherwise called the ‘Gilmer Park/ and to run and operate a dummy steam engine and cars thereon, thereby destroying the said parcel of land as a public park, and thereby causing a reversion of said realty to its rightful owners; Now, therefore, and for the purpose of abandoning in some public and authoritative manner, the use of said land as a public park, be it, therefore, ordained by the city council of Montgomery, that said city council of Montgomery hereby abandons and discontinues the use of said ground or parcel of land as a park and for all other purposes; and hereby confirms, as far as the city council of Montgomery is able to do, the right, title, claim and interest of the said Alabama Midland Railway Company, its successors and assigns therein and thereunto forever. Adopted Jan. 13, 1897. Approved Jan. 18, 1897.”

There is no disguise about these ordinances. The city authorities openly abandoned whatever trust obligation had been imposed on them by the deed of Gilmer to the park, and their own act of dedication by said ordinance of the 19th of February, 1877, by which act of abandonment, as was supposed, the title would revert to the Gilmer heirs, whose reversionary interest, if they had any, the said Alabama Midland Railway Company had bought up. The effort was to invest the railroad company with a title to the property, by means of this violation of the trust of the'city. The city authorities were induced into the scheme, by what, it is stated, appeared to them to be the necessity of better transportation facilities and the exigencies of the public business. We must acquit all engaged in this scheme of any intentional fraud upon the rights of the public; the one side, in procuring, and the other in yielding to, an abandonment of a public trust for another supposed public benefit. But, yielding to them a good and honest intention, what was accomplished, according to the authorities, was an illegal transaction and a fraud in law. The condition inserted in his deed by Gilmer, for a reversion of this property to him and his heirs, if the land should be used otherwise than as a common or street, was inserted, not as a provision to enable the city authorities to abandon or divert it at will, if accepted for the purposes intended, but to prevent their doing so. It was not a license for the violation of the trust tendered, if assumed, but a prohibition against such a violation. It is true, the deed did not make a positive dedication of the land for the purposes named, and it is also true, that the conveyance was made for a recited consideration of $300, and is, in form, a fee simple title, containing the condition for reversion, if the land conveyed should be used otherwise than as a street or common. Without such condition, it may be, the price for the land would have been much greater. Certainly such a condition in any deed tended to impair the value of the lands conveyed. It was an incumbrance on a free title. We know of no rule which prevents a dedication to uses from being engrafted on a fee simple title conveyed for value, nor do we know of any rule which prevents the engrafting of a conditional dedication to uses in such a conveyance; the dedication to be completed and irrevocable on the acceptance of the conveyance with the conditions imposed. If it had been recited in said deed, that the city had agreed to accept the conveyance on the conditions imposed, and had by ordinance set apart and dedicated the land to the public for the uses prescribed, as a consideration for procuring the conveyance, could it be doubted that the conveyance on such terms would have been less than a dedication, and that its character as such would have been destroyed, because of a condition in the conveyance, that if the grantee violated 'the terms of the deed in this regard, the property should revert to the heirs of the grantor? It is not left open to doubt, that there had been negotiation on the part of the city with Gilmer for the procurement of this land, and as to the purposes for which it was to be procured. Gilmer did not desire the property ever to revert. The clause referred to in his deed was not inserted in his interest or that of his heirs, but in the interest of the public, and was as strong as he could devise to prevent, in the future, an abandonment of the trust lie reposed in his trustee for uses, — the city of Montgomery. The city elected to accept the trust as, and for a dedication for a public park, as is evidenced by their said ordinance to that effect, adopted the 19th February, 1877. In their said ordinance, they recited: “Whereas, some of said parcels (referring to certain small tracts or parcels of land in a triangular shape) were granted to the city on condition and in trust that they should be devoted to public use as parks or pleasure grounds, and whereas, the health and comfort of the citizens and the best interests of the city will be promoted by converting the said parcels of lands into parks find pleasure grounds,” therefore, be it ordained, etc.; followed by a dedication of said park to the public use as a park or pleasure ground. After this, the conveyance of Gilmer became operative as a dedication, as much so as if such a use had been unconditionally en-grafted in the deed at its execution. The public became thereby invested with dedicated rights and interests. The trustee violated the trust, and aided in diverting the dedicated property from its uses, to a purpose forbidden by the dedication. This was a wrong from which no right could accrue to any one who claims in consequence of such an act.

It remains to inquire, if the complainant is such a party as can maintain a bill to enjoin the abandonment and destruction of this park. He may not be an abutting owner, strictly speaking. He owns two lots on the west side of Catoma street; the first, next to and adjoining an abutting owner, who owns a small lot between him and the street in front of the park. From the front of complainant’s door, diagonally across the street, on the left, to the park, it is 110 feet, — open and unobstructed. He also owns another lot, on the same side of said street, with an intervening lot between it and the first one referred to, 250 feet from said park.

Ordinarily, the city is the proper party to redress a wrong of the character here complained of; but in this instance it is the main actor in the commission of the wrongs complained of, for the abandonment and destruction of the park. It is to be presumed, it would not file a bill to declare void an act which, by solemn ordinance, it had itself just done. Individuals damaged by such action, therefore, were driven to private action for the maintenance of any rights they had in the premises.

There are authorities which hold, that non-abutting property owners upon a square or park can not complain of its being closed by municipal authority; but with such a doctrine, if necessary to decide, we might not agree. There is a marked difference between the uses and trusts as ordinarily imposed in the dedication of streets or highways in a city, and those imposed in the dedication of public squares or commons, and in the uses and enjoyments of the people therein. The municipality may allow uses in the one that it can not in the other. The uses of each are distinct, and the rights of abutting proprietors on each are different. It is allowed, generally, that such a proprietor as to a street owns to its centre, but there is no such right, or anything accruing from it, in an abutter on a park. The street must be kept open, as long as used, but the park may be enclosed, improved and ornamented for pleasure grounds and amusements for health and recreation. — 17 Amer. & Eng. Encyc. of Law, 416. In speaking of this difference between the rights of property owners attingentt-o a street and a public common, dedicated to public uses, this court, in Shef. &c. Street Ry. Co. v. Rand & Moore, 83 Ala. 294, said the rule of law was entirely different when applied to the two; that “the purpose to which such dedication is made, the use or changing uses to which it may be applied, and many other distinguishing characteristics, demonstrate that neither the rule nor the reason of the rule, on which the law of the street or highways rests, can be made applicable to a public common. The differences will naturally suggest themselves, and we need not attempt their enumeration.”

In respect to the remedy for the misuse or diversion of such property, it has been said: “If dedicated property be put to use foreign to that contemplated by. the intention and purpose of the dedication, then not only the dedicator, but any property owner, will have his remedy in equity to enforce the proper use,' and inhibit an improper one.” — 5 Amer. & Eng. Encyc. of Law, 416, and. authorities there cited.

In Maywood v. Village of Maywood, 118 Ill. 61,-— a bill filed by the village and Small and Hubbard, residents therein, to prevent obstructions to a public park, — it was said: “The objection of multifariousness or misjoinder of complainants we do not regard as well taken to the bill. Small and Hubbard, as residents of the village, have a common interest with each other and with the village itself, in preventing any obstruction to the use of the public square for the purposes of a park. * * * * Again, the evidence shows a threatened nuisance tending to deprive appellees and others of the full and free use of this park, as they were entitled to have it used. This is a well recognized ground of equitable interposition.” — Zearing v. Raber, 74 Ill. 409. When a dedication of land for a public park is made by or to a town or city, it enures to the benefit of all who are at the time, or may afterwards become citizens of the muncipality, which holds in trust for the benefit of the public, with no power to convey or divert it to other uses. This right of use belongs equally not only to lot holders of the corporation, but to all the inhabitants in t'he future as well as at present, according to their various necessities or conveniences. — Mayor v. Franklin, 12 Ga. 239; Alves v. Town of Henderson, 16 B. Monroe, 131, 169; Campbell County v. Town of Newport, 12 B. Monroe, 541; Pomroy v. Mills, 3 Vt. 279; Commonwealth v. Rush, 14 Penn. St. 186; Carter v. City of Portland, 4 Ore. 346; Alton v. Ill. Trans. Co., 12 Ill. 38; Quincy v. Jones, 76 Ill. 231; St. R. Co. v. Rand and Moore, 83 Ala. 294; 2 Beach on Injunc., §1279, and authorities cited in n. 1.

It is unnecessary, perhaps, for us to decide in this case, that any resident tax-payer in a city or town may maintain a bill to enjoin a diversion and abandonment of grounds dedicated for a public park, to the use of individuals and corporations for their own private use and advantage, in interference with or destruction of the rights of the public therein. It appears, however, that reason and authority are not wanting for such a holding. In these days of rapid and cheap transit in cities and towns, brought about by the applications of steam and electricity, it would seem that every resident property holder of the municipality occupies, in a sense, the position of an adjacent owner to its piiblic parks, dedicated to public use, and is clothed with all the valuable rights and interest in such dedications, as the one whose property abuts upon them. These parks, by these means, are the great resorts for health and recreation by all the inhabitants of the municipality, valuable and beneficent in their advantages to all alike. The one living remote is borne in a few minutes, at the cost of a trifle, to and from these grounds, and derives as much rest, recreation and profit, from their existence, as the one in closer proximity may enjoy. When the hand of vandalism and destruction is laid upon them, by the municipality itself or by strangers, it is difficult to understand, upon what principle, any individual property owner, without respect to where he lives in the city or town, may not himself invoke injunctive relief against their destruction or misuse when perpetrated by the municipality, or join it for such relief against such acts when done by others. If there ever existed any good reason why such relief should he invoked alone by an abutting proprietor, it may be that it must give way, in accommodation to the necessities and conditions of modern life, brought about by the wonderful discoveries of the present age.

But, we find no difficulty in holding, that the complainant in this case is in reason, and for the purposes of this case, an adjacent proprietor to the said park, and occupies such a position as entitles him to maintain this bill. He can look out from the front of one of his houses, with an unobstructed view, on to the park, a distance of only 110 feet from him. This gives him the attitude of an adjacent proprietor. From his other lot, the view is obstructed, though it is only 250 feet from the park. For the purposes of ¿ir and recreation, he lias shown he has a direct and special interest against its proposed destruction.

The cause was submitted on a motion to dissolve the injunction theretofore granted, and on motion to dismiss the bill for want of equity. The court by its decree dissolved the injunction, and dismissed the bill for want of equity. In this there was error.

The decree is reversed, and the cause remanded.