Tukey v. City of Omaha
| Decision Date | 17 March 1898 |
| Docket Number | 7877 |
| Citation | 74 N.W. 613,54 Neb. 370 |
| Parties | ALONZO P. TUKEY, APPELLEE. v. CITY OF OMAHA ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before HOPEWELL and FERGUSON, JJ. Affirmed.
AFFIRMED.
William J. Connell and Estabrook & Davis, for appellants:
The undisputed testimony shows that the block of ground in controversy had been dedicated to the public by a common-law dedication for the purposes of a public square, and that there never has been a dedication, statutory or otherwise, of such property as a public park. The legislature so far represents the public that it may at any time change or abolish the original use.
The legislature may delegate to a municipality the power to change or abolish the original use. (Whitsett v. Union D. & R. Co., 10 Colo. 243; Polack v. San Francisco, 48 Cal. 490; State v. Huggins, 47 Ind. 586; Riggs v. Board of Education, 27 Mich. 262; Cooper v. City of Detroit, 42 Mich. 584; Clarke v. City of Providence, 15 A. [R. I.] 763; City of Fort Wayne v. Lake Shore & M. S. R. Co., 132 Ind. 558; Baird v. Rice, 63 Pa. St. 489; Heller v. Atchison T. & S. F. R. Co., 28 Kan. 446.)
The legislature has expressly conferred the power upon the city of Omaha to extinguish one public use to which property has been dedicated, for the purpose of devoting such property to another and different public use. (Lindsay v. City of Omaha, 30 Neb. 517; Whartman v. City of Philadelphia, 33 Pa. St. 202; Reid v. Board of Education, 73 Mo. 295; Langley v. Galliopolis, 2 O. St 108.)
Persons purchasing property abutting upon grounds dedicated to a public use, on the faith of such dedication, thereby acquire a vested interest in the continuance of such use, and not even the legislature can extinguish the particular use without the consent of such abutting owners or compensating them in damages; but only such persons may be heard to complain, and the appellee owning no property abutting upon, or contiguous to, Jefferson Square has no such personal interest, as a mere taxpayer, as will authorize him to sue. (City of San Antonio v. Strumberg, 70 Tex. 366; City of Chicago v. Union Building Ass'n, 102 Ill. 379; Gall v. City of Cincinnati, 18 O. St. 563; Marini v. Graham, 8 Am. & Eng. Corp. Cases [Cal.] 401; Kittle v. Fremont, 1 Neb. 329.)
George W. Doane, contra:
Jefferson Square was dedicated by the city of Omaha for the use of the public as a public square and park forever. (Trustees of Methodist Episcopal Church v. Council of Hoboken, 33 N. J. Law 17.)
Such dedication cannot be revoked or the use to which the square was devoted changed.
It is not in the power of the city authorities to appropriate a fund created by a vote of the electors for two specified objects, to one of those objects only. (Gray v. Mount, 45 Ia. 595; McWhorter v. People, 65 Ill. 290.)
Plaintiff may maintain the action.
The opinion contains a statement of the case.
There is in the city of Omaha a tract of land, occupying one city block, and known as "Jefferson Square." This has for many years been used as a public park, and a considerable sum of money has been expended in improving it and adapting it to such use. In 1893, by ordinance, the mayor and council submitted to the electors of the city a proposition for the issuing of bonds "to pay the cost of securing a site for a market place and erecting a market house thereon." The proposition was carried, and thereafter, by another ordinance, Jefferson Square was designated as the site for the erection of a market house, and a resolution was passed directing the board of public works, under the direction of the city engineer, to clear and grade the square, preparatory to the erection of the market house. These officers were proceeding to comply with the resolution when the plaintiff, showing no interest other than as a taxpayer of the city and a citizen thereof, brought this action to restrain the city and the officers named in the resolution from entering upon the square for the purpose indicated. On final hearing the injunction granted at the commencement of the suit was made perpetual, and the defendants appealed.
An important question involved in the record, and one which has received a masterly discussion in the briefs, relates to the character of the city's title to the land, and whether it has been charged with a perpetual use as a park so that it is not within the authority of the city to divert it, under any circumstances, to a different use. While the district court seems to have passed on that question, it seems to us that it cannot be logically reached until certain other questions are disposed of; and the conclusion we have reached on these disposes of the case without a decision of the underlying question. No opinion is therefore expressed on the broad question referred to.
As the city charter stood at the time of the proceedings complained of the mayor and council had power "to erect and establish market houses, and market places, * * * and * * * locate such market houses and market places * * * on any streets, alleys, or public grounds, or on any land purchased for such purpose. " (Compiled Statutes 1893, ch 12a, sec. 62.) It was evidently under this grant that the city undertook to act. The title of the ordinance submitting the proposition was as follows: "An ordinance providing for submitting to the legal electors of the city of Omaha at a general election to be held in said city on the 7th of November, 1893, the question of issuing bonds of the city of Omaha to the amount of two hundred thousand dollars to pay the cost of securing a site for a market place and erecting a market house thereon." The proposition voted on, as embodied in the ordinance, was as follows: "Shall bonds of the city of Omaha in the sum of two hundred thousand dollars be issued for the purpose of paying the cost of securing a site for a market place, not less than a block in size, and erecting a market house thereon, such market place to be on such block in said city north of Leavenworth street, south of Cuming street, and east of Twentieth street, as may be designated by the mayor and council by ordinance after advertisement for bids of not less than four weeks, the said market house to be erected thereon to be in size at least two hundred and sixty-four feet by sixty feet, two stories in height, the lower story to be devoted to market house purposes, and the second story to contain a public assembly hall, the said bonds to run not more than twenty years and to bear interest, payable semi-annually, at a rate not to exceed five per cent per annum, with coupons attached, the said bonds to be called 'Market House Bonds,' and not to be sold for less than par, the proceeds of said bonds to be used for no other purpose than paying the cost of securing such site and erecting such market house, the said bonds to be issued from time to time as may be required during the years 1894 and 1895." The authority of the city government in the use and expenditure of the fund so provided was limited and strictly defined by the terms of the proposition so ratified by vote of the people. Beyond any doubt this proposition contemplated, not the issuing of bonds to the amount of $ 200,000 for the erecting of a market house on land already owned by the city and devoted to another purpose, but the purchasing of land for a market place, and the erection of a market house on the land so purchased. Contending against this construction counsel for the appellants call attention to the use, both in the title of the ordinance and in the proposition itself, of the word "securing" instead of "purchasing," and to the failure to designate any particular amount to be appropriated to the...
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