Buckhout v. City of Newport

• Decision Date: 24 July 1942
• Docket Number: No. 1607.,1607.
• Parties: BUCKHOUT et al. v. CITY OF NEWPORT et al.
• Court: Rhode Island Supreme Court

27 A.2d 317

BUCKHOUT et al.

v. CITY OF NEWPORT et al.

No. 1607.

Supreme Court of Rhode Island.

July 24, 1942.

Appeal from Superior Court, Newport County; Patrick P. Curran, Judge.

Bill in equity by George N. Buckhout and others against the City of Newport and others to set aside a conveyance of realty made by the city to the Newport Historical Society. From a decree denying relief and dismissing the bill, the complainants appeal.

Appeal sustained and decree reversed and parties authorized to present decree in accordance with opinion, for entry in superior court.

Cornelius C. Moore and Charles H. Drummey, both of Newport, for complainants.

Jeremiah A. Sullivan, City Sol., William MacLeod, and Sheffield & Harvey, all of Newport, for respondents.

CONDON, Justice.

This is a bill in equity to set aside a conveyance of real estate made by the city of Newport to the Newport Historical Society, a Rhode Island corporation, hereinafter referred to as the society. The complainants are certain taxpayers of the city and the respondents are the city and the society. The cause was heard in the superior court on bill, answer, replication and proof. After the hearing a decree denying and dismissing the bill was duly entered and the complainants have appealed therefrom to this court.

Complainants' appeal raises a number of questions but the main one is whether the city had the power to make the conveyance to the society without specific statutory permission of the legislature. The determination of this question, however, is necessarily dependent on the answers to be given to two subsidiary questions, namely: (1) Is property used by the city in the performance of its governmental functions thereby dedicated or devoted to a public use; and (2) if so, may the city on its own authority abandon such use and thereby free such property from the trust once impressed upon it by such use ?

Should the first question be answered in the affirmative and the second in the negative, a still further question will arise, that is, Does general laws 1938, chapter 329, § 2 contain a sufficient grant of authority to enable the city to convey any property title to which it holds in fee, whether such property be used in the performance of its governmental functions or its proprietary function?

The pertinent part of § 2 is as follows: "Towns may take, purchase and hold real and personal estate, and alienate and convey the same".

A brief statement of the facts, which are undisputed, may be helpful to a consideration of the questions involved. On October 3, 1940 the city, "in consideration of one dollars and other valuable considerations", transferred to the society a "triangular piece of land with the building thereon formerly the location of the Number 5 Engine House, located at the junction of Touro and Mary Streets". Under the deed, the society was given possession on the conditions that the building was "to be maintained as part of its (the society's) plant and to be used for the care, storage and exhibition of relics of interest to the City of Newport and for the care, storage and exhibition of various articles of historical interest". The city expressly reserved to itself the right to reenter for breach of any of such conditions.

The "triangular piece of land" thus conveyed consisted of three parcels which had been separately purchased by the city for fire protection purposes. The first was purchased from Henry Oman in 1847 "for the purpose", as stated in the deed, "of placing thereon a building to be used as a Fire Engine House and for no other purpose." The second was purchased on June 27, 1851, from William Newton as part of a transaction by means of which the town of Newport became the owner of an engine house belonging to Protection Engine Company No. 5. This engine house apparently stood partly on the Newton parcel and partly on the parcel which the city had purchased from Henry Oman. This building, however, was quitclaimed to the city on June 27, 1851 by a committee of Protection Engine Co. No. 5, thereunto duly authorized by a unanimous vote of the company taken on June 9, 1851. This quitclaim and the deed from William Newton were received for record on the same date and at the same hour, July 26, 1851 at 11 o'clock, a. m.

From June 27, 1851 until late in 1894 the town of Newport and thereafter the city of Newport used these parcels of land with the engine house thereon as a fire station for the fire department. On October 2, 1894 the city council submitted the following question to the taxpayers of the city qualified to vote thereon: "Shall the City Council be authorized to purchase the lot in the rear of the No. 5 Fire Station at a cost of Three thousand dollars and take down the old station and build a new station at an expense not to exceed Nine thousand dollars?" On October 25, 1894 this proposition was approved by such taxpayers. Thereupon the city council formally authorized its committee on fire department to procure plans for the erection of a "Steam Fire Engine Station on the lot at Touro and Mary Streets." On November 21, 1894 the city purchased the abovementioned parcel of land from William Fludder for $3,000 and caused to be erected thereon a new fire station. This station also covered the Newton parcel and a small portion of the Oman parcel.

The new station was used by the fire department until October 2, 1940, when the representative council of the city enacted an ordinance which reduced the number of fire stations in the city to four and thus indirectly discontinued the further use of No. 5. There is no evidence that the representative council expressly abandoned it as no longer fit for further use as a fire station. We understand, however, the respondents to argue that the action of the council was tantamount to an abandonment of the fire station for such purpose.

There was evidence that the area of the land covered by the station was slightly more than 2,200 square feet; that the building was of brick construction, consisting of two stories and an attic; that its present reproduction cost would be $65,081; and that its depreciated value was $36,764. This latter evidence was admitted by the superior court over the objections of the respondents, who contended that it was not proper evidence of value. However that may be, we mention it here not for the purpose of showing the value of the building, but merely in order to give a general idea of its substantial character as well as its size.

On the above-stated facts it is clear that the town of Newport and thereafter the city of Newport purchased this land in the beginning for fire protection purposes and that it devoted the land and the improvements thereon to such purposes. In this connection we need not consider what, if any, effect the restrictive language of the Oman deed would have upon the city's right to sell that parcel or to use it for other purposes because we are of the opinion that the city's use, itself, of the land has impressed it with a trust. For this reason the cases cited by the respondents require no consideration as far as they relate to their contention that statements in a deed of purchase describing the purpose for which the property was purchased by the city do not create a trust unless the deed contains a definite covenant to reconvey.

The question to be determined here is, Did the use of this land by the city constitute a public use which the city could not divest without specific statutory authority from the legislature? We are of the opinion that it did. In this state we recognize the distinction between the governmental functions of a city or town and its proprietary functions. In the exercise of the first, the city acts merely as the agent of the state, whereas in the exercise of the second, it is clothed with the same full measure of authority over its property that private corporations and individuals enjoy, unless restricted by its charter or general law.

There can be no question that a city is acting in its governmental capacity when it purchases and uses land with the improvements thereon for fire protection purposes. It is too late to argue as the respondents do in their brief that the maintenance of a fire department by the city is a "merely private municipal function." The law is well settled to the contrary in almost every American state. 19 R.C.L. § 397; 43 C.J. § 1445. That such is the law seems never to have been doubted here. See Dodge v. Granger, 17 R.I. 664, 24 A. 100, 15 L.R.A. 781, 33 Am.St.Rep. 901; City of Providence v. Hall, 49 R.I. 230, 142 A. 156, and City of Providence v. Moulton, 52 R.I. 236, 160 A. 75.

It is not clear from other parts of respondents' brief whether they seriously contend otherwise or whether they wish to have us consider that in this state the cities and towns have inherent powers which make this principle of less consequence here than it is in some other states. They urge that: "In the older Eastern States where many cities and towns were 'de facto' sovereignties before there was any Legislature with jurisdiction over them, broader powers are found in the General Laws in addition to the terms of their charters." If by this assertion the respondents are impliedly contending that Newport, as one of the original towns, has powers that do not necessarily derive from the state, the answer is that this court long ago definitely denied such a thesis. City of Newport v. Horton, 22 R.I. 196, 47 A. 312, 50 L.R.A. 330; Horton v. Newport, 27 R.I. 283, 61 A. 759, 1 L.R.A., N.S., 512, 8 Ann.Cas. 1097. See also, City of Providence v. Moulton, supra, and In re Warwick Financial Council, 39 R.I. 1, 97 A. 21, 23.

In the latter opinion, the judges of this court, in advising the house of representatives as to the source of the powers of our cities and towns, said: "From very early times the course of legislation by the General Assembly has furnished a legislative construction that the towns...