Bailey v. The City of Topeka

• Decision Date: 12 February 1916
• Docket Number: 20,102
• Citation: 154 P. 1014,97 Kan. 327
• Parties: LUTHER C. BAILEY, Plaintiff, v. THE CITY OF TOPEKA et al., Defendants
• Court: Kansas Supreme Court

154 P. 1014

97 Kan. 327

LUTHER C. BAILEY, Plaintiff, v. THE CITY OF TOPEKA et al., Defendants

No. 20,102

Supreme Court of Kansas

February 12, 1916

Decided, January, 1916.

Original proceeding in quo warranto.

Judgment rendered.

SYLLABUS

SYLLABUS BY THE COURT.

1. PUBLIC PARK--Concessions for Lunch Stands and Bathing Facilities--Not Unlawful. The action of a city in granting to individuals, for pay, exclusive rights within a public park to operate refreshment and lunch stands, and to rent boats and bathing suits and towels and dressing rooms, does not constitute a use of the park for other than public purposes, nor is it in conflict with provisions of the deed of gift by which the city acquired the property, to the effect that it should be used for the benefit of the public, and should be inalienable by deed, gift, lease, or other method.

2. SAME--City Authorized to "Regulate" Parks. Sufficient power for the purpose indicated is conferred by statutes authorizing the city authorities to "regulate" parks.

A. M. Harvey, and J. E. Addington, both of Topeka, for the plaintiff.

George P. Hayden, and A. C. Bartell, both of Topeka, for the defendants.

OPINION

MASON, J.

The city of Topeka accepted a tract of land given to it for the purpose, and on the condition, that it should be used as a public park, "for the benefit of the health, comfort, and recreation of the citizens of Topeka and their friends, and such other orderly persons as may resort thereto." The deed of gift contained a provision that "said real estate shall be inalienable by said city of Topeka, either by way of deed, conveyance, lease, or in any other manner, and shall be forever held and used for the purposes aforesaid." Luther C. Bailey, who owns land facing on that referred to, brings an original action in this court in the nature of quo warranto, asking that the city and its officers be ousted from the power which they are undertaking to exercise, of using the park for other than public purposes, and in such a manner as to violate the terms of its dedication. The case is submitted upon the pleadings.

Prior to answering the city filed a motion to dismiss, on the grounds, (1) that the court had no jurisdiction to hear the case, (2) that the allegations of the petition did not show an illegal exercise of power, and (3) that the plaintiff had no peculiar or specific interest different from the citizens of Topeka as a whole. The motion was overruled, the first ground being regarded as not well taken, and the others as involving the sufficiency of the petition, and proper to be raised rather by a demurrer than by a motion to dismiss. Whether the plaintiff has or claims any such peculiar interest in the use to which the park is put as to enable him to maintain an action to restrain the city from wrongful conduct in its management may well be doubted. An abutting owner may sometimes sue to prevent a diversion of public property from the uses for which it was acquired. ( Comm'rs of Franklin Co. v. Lathrop, 9 Kan. 453; Note, 1 L. R. A. 725.) But whether the plaintiff is within that rule need not be determined, by reason of the conclusion reached on the other branch of the case.

(1) The action of the city of which complaint is made consists of the granting to individuals, for pay, of exclusive rights within the park to operate refreshment and lunch stands, and to rent boats and provide suits, towels and rooms for bathers, at fixed prices. A free dressing pavilion is provided for bathers using their own suits and towels. Apparently there is nothing to prevent any one from using his own boat on the pond, should he so desire. We see nothing in the conduct referred to that is inconsistent with the public character of the park, or that conflicts with the terms of the gift. The exclusive character of the privilege conferred is not the basis...