Board of Park Com'Rs of Ashland v. Shanklin

• Citation: 304 Ky. 43
• Parties: Board Of Park Com'rs Of Ashland et al. v. Shanklin et al.
• Decision Date: 14 February 1947
• Court: United States State Supreme Court (Kentucky)

304 Ky. 43

Board Of Park Com'rs Of Ashland et al. v. Shanklin et al.

Court of Appeals of Kentucky.

February 14, 1947.

1. Dedication. — A 47-acre tract to which city had fee simple title and which from the beginning was designated and maintained as public park but which had never been formally dedicated to park purposes, would be regarded as having been informally or impliedly dedicated to park purposes.

2. Municipal Corporations. — The use to which park property may be devoted depends on whether property was granted and dedicated by individuals for park purposes, or purchased in fee by municipality, in which latter case the use is regarded as less definitely defined and a more liberal construction as to consistency of use for various purposes is adopted.

3. Municipal Corporations. — The maintenance of parks by municipality is governmental function.

4. Municipal Corporations. — The statutes governing city board of park commissioners was intended to lodge in board as trustee for the people the exclusive control of park properties, and the board can not surrender or delegate its official dominion, discretion, powers and duties to persons not answerable to the people. KRS 97.400, 97.410, 97.440, 97.510.

5. Municipal Corporations. — Proposed contracts for use of athletic field and stadium in public park by professional baseball club, high school athletic association, American Legion, and Elks Club were illegal, where contracts would give to such clubs the power to exclude general public from use of substantial part of park, and would divide governmental authority and responsibility of city board of park commissioners with private parties having no public obligation. KRS 97.400, 97.410, 97.440, 97.510.

6. Municipal Corporations. — A judgment, enjoining making of proposed contract for use of contemplated athletic field and stadium in public park, should not have determined question of authority of park board to erect and operate and finance stadium, where board had no definite plan for erecting or financing stadium other than in connection with proposed contract.

Appeal from Boyd Circuit Court.

John C. Vigor and A.W. Mann for appellants.

Howard Van Antwerp, Jr. for appellees.

Before Watt M. Prichard, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming in part, reversing in part.

The City of Ashland is fortunate in having acquired long ago a tract of 47 acres as a public park in what is now a fully developed part of the city. It is known as Central Park. It has virgin trees and some Indian mounds and has been developed with roads, paths, pools and other recreation facilities which contribute to its enjoyment by all the citizens. Baseball diamonds with open seats have existed in the northeastern part of the park for many years. They have never been commercialized, but open for everyone. Occasionally the park has been used for various sorts of public entertainment, for some of which charges of admission have been made.

The Board of Park Commissioners is proposing to enclose that part of the park as an athletic field and to erect a modern, artistic stadium with a seating capacity of 2,000, and to enter into contracts for its use and operation by the Ashland Baseball Club, which controls a professional team, the Ashland High School Athletic Association, the local post of the American Legion and the local chapter of the Order of Elks. This suit tests the authority of the Board to do so. It presents questions of the legitimacy of that use of the park and of the validity of the proposed contracts. An intervening petitioner charges that the operation of the ball park with flood lights in the night-time would be a nuisance, and for himself and other nearby property holder seeks an injunction to prevent it.

The city has fee simple title to the property. No record has been found of any formal action by its council dedicating it to park purposes, but from the beginning it has been designated, maintained and used as a public park in every sense of the word. There has been manifested a clear and unequivocal intention to devote this property to park purposes only. It must therefore be regarded as having been informally or impliedly dedicated with a result just as effectual. Massey v. City of Bowling Green, 206 Ky. 692, 268 S.W. 348.

The uses to which park property may be devoted depend to some extent on the manner of its acquisition; that is, whether it was granted and dedicated by individuals for the purpose or purchased in fee by the municipality. In the latter case the use is regarded as less definitely defined and a more liberal construction as to the consistency of the use for various purposes is adopted. City of Hopkinsville v. Jarrett, 156 Ky. 777, 162 S.W. 85, 50 L.R.A., N.S., 465; 39 Am. Jur., "Parks, Squares and Playgrounds," section 21; 44 C.J. 1101. The decisions of other courts as to the legitimacy of the erection of stadiums and other structures and their commercial operation by park boards are not in accord, probably because of the different terms of the statutory authorities and of the particular titles. Annotations, 18 A.L.R. 1247; 63 A.L.R. 484; 144 A.L.R. 486. It was held in South Carolina that the building of a stadium and athletic field was not a consistent purpose. Miller v. City of Columbia, 138 S.C. 343, 136 S.E. 484. But the opposite was held in Missouri. Aquamsi Land Co. v. City of Cape Girardeau, 346 Mo. 524, 142 S.W. 2d 332. Under our conclusion as to the illegality of the proposed contracts it is not necessary that we should express an opinion on this point.

The same is true as to the contention that the operation of the ball park at night would be a nuisance per se. However, we may call attention to our recent opinion holding that it would not be. Board of Education of Louisville v. Klein, 303 Ky. 234, 197 S.W. 2d 427.

We summarize the proposed contract with the Ashland Baseball Club. The others are substantially the same. Following a preamble as to the proposed use of the designated part of the park for baseball and other athletic purposes and as to the desire of the Board of Park Commissioners to afford better facilities for the comfort and enjoyment of the people, and its purpose or desire to erect the stadium and appropriate appurtenances, the Board agrees to give the Club the "exclusive use" of the proposed athletic field and facilities "at such times and for such purposes as it shall deem to the best interest and benefit of those persons using Central Park," but with the provision that the Board shall "at all times...