Board of Mayor and Aldermen of Yazoo City v. Wilson

• Decision Date: 13 January 1958
• Docket Number: No. 40603,40603
• Citation: 99 So.2d 674,232 Miss. 435
• Parties: BOARD OF MAYOR AND ALDERMEN OF YAZOO CITY, Miss. v. Mrs. Claudia Saunders WILSON et al.
• Court: Mississippi Supreme Court

Page 674

99 So.2d 674

232 Miss. 435

BOARD OF MAYOR AND ALDERMEN OF YAZOO CITY, Miss. v. Mrs. Claudia Saunders WILSON et al.

No. 40603.

Supreme Court of Mississippi.

Jan. 13, 1958.

T. H. Campbell, Jr., Yazoo City, for appellant.

E. G. Cortright, Jr., Yazoo City, for appellees.

HALL, Justice.

On March 21, 1890, the Lintonia Land Company, being the sole owner of a large tract of land in Yazzo City, filed an official map according to law to Lintonia, an addition to Yazoo City, Mississippi. This map shows numerous streets, alleys and lots. It also shows a block of land 300 feet square which is marked 'Public Park'. Immediately south of this park there is shown a street which is named Fourth Street and is 60 feet in width. Just south of this street and abutting thereon the city recently purchased 6 lots, title to which was taken in the name of the city and not in the name of the school district. A contract was let and a junior high school was erected on these lots and it was so erected as to set back only about 8 or 10 feet from Fourth Street.

The city proposed to close that portion of Fourth Street lying immediately north of the school building and south of the public park for a distance of 300 feet. There was filed with the Board of Mayor and Aldermen a protest signed by approximately 50 residents of the area in question and the matter was set for hearing before the Board of Mayor and Aldermen for April 2, 1956. Following the hearing the city adopted an ordinance closing the said Fourth Street for said distance of 300 feet, from which action this appeal was prosecuted by certiorari to the circuit court, and by agreement of the parties the circuit judge took the case under advisement for decision and judgment in vacation, and finally on December 7, 1956, the circuit judge rendered his opinion holding the ordinance void, from which action the city appeals here.

The bill of exceptions shows that the city alone acquired title to the lots on which the school building was erected. It contains a copy of the plat of Lintonia Addition which was introduced in evidence at the hearing before the city board and it shows that Lintonia Land Company has never parted with the title to the square of land which is marked 'Public Park'. The bill of exceptions shows that two members of the school board requested the city to close said portion of said street and had requested the city to remove the pavement on said portion of said street and to fill the same with dirt and to place grass thereon and to allow the school board and the school children attending said school to use said portion of the lawns and grounds of said school as an access of said children in travelling from said park to said school and from said school to said park and that it has been and still is the intention of the school board to allow said school children to use the said public park north of the school site for playground purposes. In fact the president of the school board testified that it was the intention of the school board to allow the children to play in said public park, which would in effect convert the same from a public park to a school playground. Another member of the school board testified that in his opinion it would be dangerous to the children not to close the street, but it was not shown that this member of the board was a traffic expert. There was no evidence that the city contemplates replacing said portion of Fourth Street by another street or highway which would be more convenient or accessible to the motoring public or by any other street or highway whatsoever, and there was no evidence showing that the expense of maintaining said portion of Fourth Street was a considering factor in deciding whether or not to vacate said portion of said street. The president of the school board further testified that if the street were left in its present condition it would endanger the children to have barricades or blockades at each end of said portion of said street during school hours because vehicles might crash through said blockades and that there was also danger of children falling in said Fourth Street and injuring themselves from its paved hard surface. He was likewise not a traffic expert.

The protestants contend that said ordinance is unreasonable, arbitrary, unlawful, illegal, and in violation of the Constitution of the State of Mississippi and in violation of the rights of the general public; that said ordinance is against the best interest of the general public and is in violation of the terms on which said portion of said street and said park were dedicated to the general public and that said ordinance was passed for the purpose of allowing said portion of said street and said park to be used as and made a part of the lawns and playgrounds of the school, and further that the ordinance gives to the school and to the children attending same a special ingress and egress to and from said park and beyond that given to the general public, and that the effect of said ordinance is to give to said school and the children attending same the said portion of said street and said park in violation of the rights of the general public. The bill of exceptions shows that there is no record of any deed whatsoever, excepting the aforesaid plat, of the aforesaid street and park to the city and the whole title and right of the city rests solely upon the dedication shown by said map.

The circuit judge in a written opinion found that the action of the city in closing the street is a subversion of the public park and a changing of its use from that of a public park dedicated to the use of the public to a part and parcel of a playground of a public school which is founded and maintained for the benefit of a few, to-wit, the children of that particular school who attend same during a certain portion of their lives. The lower court held that the action of the city in closing Fourth Street at that point amounts to an actual and outright subversion of a park dedicated many years ago to the public generally as a place of recreation, amusement and solace from the stress of modern city life, and that the intention of the school board to use the public park for playground purposes is itself specifically expressed in the ordinance. He held that the upholding of this ordinance and the carrying out of the avowed intention of the school board would make the complete end of the property as a public park, and that its effect would be the same as if the actual school building had been placed in the park itself. The lower court further held that while the protestants did not own property actually abutting on that portion of the street to be closed, nevertheless they do own property abutting on the park and that the act of the school board in incorporating the park into the school yard is an act tantamount to closing the park. The lower court further held that under the police powers of the city an ordinance might be passed providing for the temporary blocking of traffic from this street during recess hours or even during all school hours.

In 26 C.J.S. Dedication Sec. 23, b, p. 446, it is said: 'Unless an intention to the contrary is disclosed, it is generally held that where the owner sells real property with reference to a map or plat, he manifests an intention to dedicate to public uses squares or parks indicated on the map or plat.'

In 63 C.J.S. Municipal Corporations Sec. 967, p. 517, it is said: 'Lands taken and held by a municipality under grant, will, gift, or dedication for a specific purpose are subject to the law of trusts, and may not be alienated by the trustee at will without lawful authority, even though the municipality itself is a beneficiary. If the trust is for the public the legislature, as supreme trustee, may authorize its disposition, subject, however, to any private right or trust therein. Although the legislature may authorize a municipality to convey property held in its trust capacity for a particular use, it has been said to be the consensus that this must be done specially, and that such authority may not be implied from as general power to acquire, alien, and convey. Where property is conveyed to a municipality to be used and disposed of in a way 'conducive to the welfare and advantage of the said city and its inhabitants,' the elements of benefit to the city which its council is entitled to take into consideration in managing and disposing of the property are essentially the same as though they were trustees appointed under a will.'

And in the same volume on the same subject, in Sec. 950, at page 500, it is said: 'Municipal officers have only limited powers with respect to property dedicated to public use. * * * Under some statutes, a municipal corporation may accept a grant of real property subject to reasonable restrictions and conditions, and, where a grant is so accepted, the restrictions and conditions are binding on such corporation.'

In 62 C.J.S. Municipal Corporations Sec. 189, pp. 347, 348, it is said: 'The public property of a municipal corporation, real and personal, or in other words such property as is held in trust for the public generally, is subject to the control of the legislature. It has been so held, for example, of squares, parks and promenades; * * *. The power of the legislature, however, over property dedicated to a particular public use is not absolute. While it may regulate the use of such property or promote its improvement, it cannot divert or subject it to any use clearly inconsistent with the contract of dedication.'

In the case of Rowzee v. Pierce, 75 Miss. 846, 23 So. 307, 309, 40 L.R.A. 402, the Court had before it the question of an ornamental park which had been donated by deed to the Town of Pontotoc, which deed provided that it was only for public use as an ornamental park subject to such regulations as the city may make for the purpose of fencing and ornamenting the same and keeping...