Beverly Wood Associates v. City of Albuquerque

• Decision Date: 28 August 1967
• Docket Number: No. 8316,8316
• Citation: 1967 NMSC 189,78 N.M. 334,431 P.2d 67
• Parties: BEVERLY WOOD ASSOCIATES, a co-partnership, Plaintiff-Appellee, v. CITY OF ALBUQUERQUE, a municipal corporation, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 67

431 P.2d 67

78 N.M. 334

BEVERLY WOOD ASSOCIATES, a co-partnership, Plaintiff-Appellee, v. CITY OF ALBUQUERQUE, a municipal corporation,

Defendant-Appellant.

No. 8316.

Supreme Court of New Mexico.

Aug. 28, 1967.

[78 NM 334] Frank M. Mims, Frederick M. Mowrer, Albuquerque, for appellant.

Rodey, Dickason, Sloan, Akin & Robb, Mark K. Adams, Albuquerque, for appellee.

OPINION

COMPTON, Justice.

City of Albuquerque appeals from a declaratory judgment holding the proposed sale of Beverly Park to be null and void.

The facts are stipulated and we summarize them. The plaintiff is the owner of all the land in the Beverly Wood Addition of Albuquerque lying north of Interstate Highway 40 with the exception of Beverly Park of the addition as shown by the revised plat. The plat was duly filed and recorded in 1951 and, thereupon, Beverly Park became dedicated to public use; the City accepted the dedication and since its acceptance Beverly Park has in fact been devoted to public use; the dedication of Beverly Park for public use by the original owners was a gift to the City and no consideration was given or paid therefore; in January 1965, the City proposed to sell a portion of Beverly Park, pursuant to § 14--47--5, N.M.S.A. 1953, for a cash consideration of $100,000.00; upon acquisition of the title to Beverly Park, the proposed buyers intended to use the real estate for other than public park purposes.

The pertinent conclusions of the court are:

'2. That upon dedication for public use of Block 'F' of the Beverly Wood Addition, hereinafter referred to as 'Beverly Park,' the fee to said Park became vested in the defendant City of Albuquerque as trustee for the use and benefit of the public.

'3. That upon the aforesaid dedication Beverly Park became impressed with a public trust for the use and benefit of the public.

'4. That a sale by the defendant City of Beverly Park for a use other than its dedicated purpose is void and in violation of the trust upon which the title to Beverly Park is held.'

The applicable statute, § 14--2--5, N.M.S.A. 1953, reads,

'All avenues, streets, alleys, parks and other places designated or described as for public use on the map or plat of any city or town, or of any addition made to such city or town, shall be deemed to be public property and the fee thereof be vested in such city or town.'

In Phillips Mercantile Co. v. City of Albuquerque, 60 N.M. 1, 287 P.2d 77, we had an occasion to construe the statute as it applied to streets and alleys. We there held that the city's title was limited and the city possessed only a fee to the use of the streets and alleys, hence, the statutory provision § 14--47--5, allowing the sale of municipally owned property not used strictly for governmental functions was not applicable. Compare Palmer v. City of Albuquerque, 19 N.M. 285, 142 P. 929, L.R.A.1915A, 1106.

The City seeks to distinguish Phillips by arguing that we were only construing the statute as it related to streets and alleys and not to parks. We see nothing in the statute which would require a different holding where public parks are involved and where streets and alleys are involved.

The City cites the amendment to § 14--2--5 (Laws 1959, Ch. 277), and the repeal of the section upon enactment of the present Municipal Code, N.M.S.A., § 14--1--1 et seq. (1953) Comp.1965 Supp.), as showing a legislative intent to authorize such a sale as here proposed. There is no merit to this position. Neither the amendment nor the repeal alters the status of the property statutorily dedicated to the public previously for a particular purpose. See 1 McQuillin, Municipal Corporations, § 30.20, p. 164 (3rd. ed. rev. 1964). See Payne v. City of Laramie (Wyo.1965), 398 P.2d 556.

The City strongly relies on McCarter v. City of Raton, 45 N.M. 351, 115 P.2d 90, as support for its position. The case is distinguishable; there the City of Raton...