Wishart v. City of Lumberton

118 S.E.2d 35 (1961) 254 N.C. 94

F. Eli WISHART and wife, Hallie F. Wishart, S. H. Welsh and wife, Vivian P. Welsh, C. G. Townsend, E. A. Sundy and wife, Frances C. Sundy, and Kate B. Biggs,
v.
CITY OF LUMBERTON, a Municipal Corporation.

No. 738.

Supreme Court of North Carolina.

February 3, 1961.

McLean & Stacy, Lumberton, for plaintiffs-appellees.

E. M. Johnson, Lumberton, for defendant-appellant.

RODMAN, Justice.

The demurrer was properly overruled. If the governing authorities were preparing to put public property to an unauthorized use, citizens and taxpayers had the right to seek equitable relief. Rheinhardt v. Yancey, 241 N.C. 184, 84 S.E.2d 655; Jamison v. City of Charlotte, 239 N. C. 682, 80 S.E.2d 904; Brown v. Candler, 236 N.C. 576, 73 S.E.2d 550; McGuinn v. City of High Point, 219 N.C. 56, 13 S.E.2d 48; Bowles v. Fayetteville Graded Schools, 211 N.C. 36, 188 S.E. 615; Carstarphen v. Town of Plymouth, 180 N.C. 26, 103 S.E. 899; Vaughan v. Board of Commissioners, 118 N.C. 636, 24 S.E. 425; 52 Am.Jur. 10.

"Where property is dedicated or set apart without restriction merely for public uses, the municipal authorities may determine for what use it is appropriate and shall be used, and, if not irrevocably dedicated or appropriated by them to any particular public use, its use may be changed as the public convenience and necessities require." 64 C.J.S. Municipal Corporations § 1818, p. 299. Where, however, property is purchased for the declared purpose of use as a public park or dedicated by gift for that purpose, or if acquired without any specific intent as to its use, has thereafter been definitely set aside for the sole and specific use as a public park, the governing authorities of a municipality may not, without legislative authority, dispose of the property or put it to an entirely different and inconsistent use. Blue v. City of Wilmington, 186 N.C. 321, 119 S.E. 741; Harris v. City of Durham, 185 N.C. 572, 117 S.E. 801; Carstarphen v. Town of Plymouth, supra; City of Raleigh v. Durfey, 163 N.C. 154, 79 S.E. 434; City of Southport v. Stanly, 125 N.C. 464, 34 S.E. 641; Spicer v. City of Goldsboro, 226 N.C. 557, 39 S.E.2d 526 (The difference between a park and a parkway in a public street is noted.); Zachry v. City of San Antonio, 157 Tex. 551, 305 S.W.2d 558; Aldrich v. City of New York, 208 Misc. 930, 145 N.Y.S.2d 732; Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121, 18 A.L.R. 1238; Wright v. Walcott, 238 Mass. 432, 131 N.E. 291; Annotation 18 A.L.R. 1246; Lowell v. City of Boston, 322 Mass. 709, 79 N.E.2d 713; Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387; Smith v. Town of Hot Springs, 125 Mont. 458, 240 P.2d 249; Carson v. State, 240 Iowa 1178, 38 N.W.2d 168; City and County of San Francisco v. Linares, 16 Cal. 2d 441, 106 P.2d 369.

Apparently the Legislature has not given Lumberton any special authorization to abandon any of its public parks. We find none in its charter; none has been called to our attention. Legislative permission has been given municipalities to abandon specific uses of public properties. They may close streets, G.S. § 160-200 (11), abandon cemeteries, G.S. § 160-200 (36), and sell public utilities, G.S. § 160-2(6). They are authorized to establish and regulate parks, G.S. § 160-200(12), and adopt such ordinances for the use and regulation of streets, parks, and other public property belonging to the city as they may deem best for the public welfare of the citizens of the city, G.S. § 160-200(12). The right to regulate is not broad enough to authorize an abandonment.

Since the Legislature has not seen fit to delegate to the governing authorities of Lumberton the right to abandon and put to an inconsistent use property which has been permanently dedicated as a public park by its city council, it is necessary to determine whether the area has been so appropriated. The pleadings make this an issue of fact. In determining that fact we think the language of the Court of Appeals of Kentucky in Massey v. City of Bowling Green, 206 Ky. 692, 268 S.W. 348, 350, pertinent. It said: "A city may own property for which it has no present use, and permit it to be used temporarily for any legitimate purpose, or property devoted to a specific use may become unsuited for that purpose and a change of use become necessary, and it cannot be contended that every purpose for which it is thus used fixes its status irrevocably. If so, a city dump would remain a dump forever, though by reason of abutting development it became highly desirable for other purposes * * *.

"Public parks are essential to the proper enjoyment of urban life, and their establishment and maintenance should be encouraged in every legitimate way; but to irrevocably establish such a park or dedicate municipal property thereto by user there should be such action upon the part of the city and so continued for such a length of time as to manifest a clear and unequivocal intention for the property to be devoted to that purpose only. Perhaps, where a city has paid funds out of its treasury in making improvements for park purposes on lands owned by it to such an extent that it would be inequitable to abandon it or change its use, this might be construed as an establishment thereof."

The restraining order was properly continued in effect pending the final hearing. Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80.

Affirmed.