Kirkwood v. City of St. Louis, 48449

• Decision Date: 11 December 1961
• Docket Number: No. 48449,No. 2,48449,2
• Citation: 351 S.W.2d 781
• Court: Missouri Supreme Court
• Parties: Mary Purcell KIRKWOOD and Joseph A. Kirkwood, for and on behalf of themselves and all others similarly situated and interested, Appellants, v. CITY OF ST. LOUIS, a municipal corporation, and V & M Contracting Company, a corporation, Respondents

Page 781

351 S.W.2d 781

Mary Purcell KIRKWOOD and Joseph A. Kirkwood, for and on behalf of themselves and all others similarly situated and interested, Appellants, v. CITY OF ST. LOUIS, a municipal corporation, and V & M Contracting Company, a corporation, Respondents.

No. 48449.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1961.

Joseph A. Kirkwood, St. Louis, for appellants.

Thos. J. Neenan, City Counselor of the City of St. Louis, Aubrey B. Hamilton, Assoc. City Counselor, St. Louis, for City of St. Louis.

Sylvan Agatstein and Shifrin, Treiman, Agatstein & Schermer, St. Louis, for respondent, V & M Contracting Co. STOCKARD, Commissioner.

Plaintiffs brought this action to enjoin the City of St. Louis from constructing a highway through a portion of a public park and to challenge the validity of the municipal bonds issued to pay for said highway. After a hearing the trial court dismissed the petition and plaintiffs have appealed.

Located within the western central portion of the City of St. Louis is a publicowned rectangular-shaped tract of land consisting of 1,380 acres known as Forest Park. The city proposes to construct the Rock Island Expressway, a four-lane highway, across the northeast corner of the park to expedite the rapid movement of vehicular traffic from the downtown area of the city to the western city limits. Appellants are residents and taxpayers of the City of St. Louis who own land abutting the park, and they contend that the construction of the expressway across the corner of Forest Park will constitute an unauthorized and illegal diversion of park land from park purposes.

By reason of its size and location in relation to the business and residential areas of metropolitan St. Louis, Forest Park is a barrier to through traffic. The movement of traffic through the park, particularly in rush hours, is heavy, congested and slow. The city is engaged in constructing in an area east of Forest Park what is known as the Mill Creek Development Project which will result in a substantial increase in traffic through Forest Park if it is not otherwise diverted. The Rock Island Expressway, as proposed, enters the park on the east side near the northeast corner by passing beneath Kingshighway Boulevard, it then runs in a northwesterly direction and follows generally the route of an existing railroad track, and leaves the park on the north side under Lindell Boulevard. It will occupy approximately six acres of park land.

The City of St. Louis devoted much effort and expended substantial sums of money in the study of its traffic problem. The location of the Rock Island Expressway was first determined in 1948 as the result of a comprehensive study. The plan was approved that year by the city plan commission. The evidence clearly establishes that the construction of the Rock Island Expressway where proposed will free or substantially reduce heavy through traffic now using the narrow winding park drives, prevent or at least substantially reduce a traffic bottleneck at the park, reduce or eliminate an anticipated increase in park traffic resulting from the Mill Creek Development Project, and provide a presently needed modern highway for the rapid mass movement of east-west vehicular traffic. As may be expected in every such situation, there are some who do not agree with the proposed location of the Rock Island Expressway and possibly some who do not agree with its need. However, those who are charged by law with the duty and are vested with the discretion of determining the location of the expressway have made their decision in the matter, and it cannot be said, assuming the legal authority exists for the expressway to cross the northeast corner of Forest Park, that they have acted unreasonably or arbitrarily. In fact, we do not understand the plaintiffs to so contend.

The source of title of the City of St. Louis to the land constituting Forest Park stems from an act of the legislature of Missouri, Laws of Missouri 1874, p. 371, which created the park, defined its boundaries, and authorized 'the county court of St. Louis county * * * to purchase or condemn all the lands embraced within said boundaries, for the purposes of said public park.' Title to the land affected by the expressway was obtained by condemnation. See County Court of St. Louis County v. Griswold, 58 Mo. 175. The decree or judgment in condemnation is not in the record, but the parties stipulated that 'the Circuit Court of the County of St. Louis, Missouri, did find and decree that the fee to all of the said real estate * * * was in the County of St. Louis and the people thereof.' In 1876 the City of St. Louis ceased to be a part of St. Louis County, and the 'Scheme for the Separation of the Governments of St. Louis City and County' provided that 'All the * * * public parks and property of every character and description heretofore owned and controlled by the County of St. Louis within the limits [of the city] as extended * * * are hereby transferred and made over to the City of St. Louis.'

The cases of this and other jurisdictions have established as a general rule that the extent to which the use of park property may be changed is governed, at least to some extent, by a consideration of the manner in which the property was acquired. That is, whether the land was obtained by dedication for park purposes by the owner, or by purchase or condemnation by the municipality. 39 Am.Jur. Parks, Squares, and Playgrounds Sec. 21; Annotation, 18 A.L.R. 1247, 63 A.L.R. 485, 144 A.L.R. 488. It is generally held that if a dedication of property for public use is by a private party for a specific or defined purpose, neither the legislature nor a municipality has any power to authorize the use of the property for any purpose other than the one designated. 26 C.J.S. Dedication Sec. 65; Cummings v. City of St. Louis, 90 Mo. 259, 2 S.W. 130; Price v. Thompson, 48 Mo. 361; Rayor v. City of Cheyenne, 63 Wyo. 72, 178 P.2d 115, 117; Hyland v. City of Eugene, 179 Or. 567, 173 P.2d 464. However, where a park is established by statutory authority, or when a municipality purchases land and establishes a park thereon, the uses to which it may be put are much broader than where the land is dedicated by individuals to park purposes. 'Land acquired by a municipality by eminent domain, or by the expenditure of public funds, for public use as a park, and not subject to the terms of any gift, devise, grant, bequest, or other trust or condition, may be devoted to some other public use by legislative mandate.' 39 Am.Jur. Parks, Squares, and Playgrounds Sec. 21, p. 817. See also, State ex rel. City of Excelsior Springs v. Smith, 336 Mo. 1104, 82 S.W.2d 37; Antonakas v. Anderson Chamber of Commerce, 130 S.C. 215, 126 S.E. 35; Rayor v. City of Cheyenne, supra; Re Central Parkway, City of Schenectady, 140 Misc. 727, 251 N.Y.S. 577; 26 C.J.S. Dedication Secs. 65 and 66; Annotations, 18 A.L.R. 1248, 63 A.L.R. 486, 144 A.L.R. 492. The ultimate right of control of public parks, as of other governmental property, belongs primarily to the state and not to the municipality in which it is located. Municipalities have only such right of control as is delegated to them. Higginson v. Slattery, 212 Mass. 583, 99 N.E. 523, 42 L.R.A.,N.S., 215; In re Central Parkway, City of Schenectady, supra. In this case the City of St. Louis has the fee to Forest Park, but the legislature, in authorizing St. Louis County (and later the City of St. Louis) to acquire it specified to what purpose the fee should be held, that is for park purposes. Therefore, the decisive question in this case is whether the legislature of Missouri has delegated to the City of St. Louis the authority to divert any portion of the land of Forest Park proposed to be used for the expressway for purposes other than a park.

The charter of the City of St. Louis, adopted pursuant to an express grant of authority in Art. IX, Sec. 20, Constitution of 1875, V.A.M.S., and continued in force by Art. VI, Sec. 31, Constitution of 1945, V.A.M.S., has all the force and effect of an act of the legislature. Wiget v. City of St. Louis, 337 Mo. 799, 85 S.W.2d 1038, 100 A.L.R. 1284; City of St. Louis v. Fischer, 167 Mo. 654, 67 S.W. 872, 64 L.R.A. 679, 99 Am.St.Rep. 614. That charter grants to the city in the usual manner the authority to open and establish streets, but that, standing alone, is not sufficient to authorize the use of park land for street purposes. Rayor v. City of Cheyenne, supra at p. 118 of 178 P.2d. However, in addition to the above authority, in Art. I, Sec. 1(8) of the charter the city is expressly given the authority 'to acquire or receive and hold, maintain, improve, sell, lease, mortgage, pledge or otherwise dispose of property, real or personal, and any estate or interest therein, * * *,' and in Art. I, Sec 1(14) the city is expressly given the authorty 'to establish, open, relocate, vacate, alter, * * * parks, public grounds and squares, * * *.' The language of the charter provision granting these broad powers contains no limitations that any change in the use of parks brought about by vacating or altering parks or parts thereof must be only of a certain nature or for certain purposes. If it were intended by the legislature that the city could only control and supervise the parks without changing them or the use of the land in any respect, then the above authority to vacate and alter has no meaning because the charter otherwise grants to the city the authority for and provides the procedure of supervising and controlling the public parks. In State ex rel. City of Excelsior Springs v. Smith, supra [336 Mo. 1104, 82 S.W.2d 42], this court recognized that 'public convenience, interests, and necessities' may make a change in the location of a public park imperative. The same reasoning applies to the use of a park. The legislature apparently recognized that such circumstances might or would arise in the...