Carlson v. City of Fremont, Dodge County

• Decision Date: 29 April 1966
• Docket Number: No. 36222,36222
• Citation: 180 Neb. 262,142 N.W.2d 157
• Parties: Elizabeth M. CARLSON et al., Appellants, v. CITY OF FREMONT, DODGE COUNTY, Nebraska et al., Appellees.
• Court: Nebraska Supreme Court

Page 157

142 N.W.2d 157

180 Neb. 262

Elizabeth M. CARLSON et al., Appellants, v. CITY OF FREMONT, DODGE COUNTY, Nebraska et al., Appellees.

No. 36222.

Supreme Court of Nebraska.

April 29, 1966.

Syllabus by the Court

1. Where lands are conveyed to a municipality by absolute gift or purchase from the general fund, without restriction or condition of any kind, the municipality may devote it to such public use as its needs require.

2. Where lands are conveyed to a municipality in fee simple and thereafter used as a public park, the municipality may at any time thereafter change the use to one required by the welfare and necessities of the municipality.

3. It is only where property is dedicated or donated for some specific use, conveyed with some restriction or condition, or where payment is provided by assessment on property benefited by the contemplated use, that a different use may be enjoined.

Edward J. Robins, Fremont, for appellants.

Ray C. Simmons, Max A. Powell, Fremont, for appellees.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and RONIN, District Judge.

CARTER, Justice.

This is a suit for an injunction in which plaintiffs sought to enjoin the city of Fremont and its officers from converting any part of a city park to use as a fire engine station or any other use incompatible with its use as a public park. The trial court denied an injunction and plaintiffs have appealed.

Plaintiffs are lot owners across the street from the park, who claim their properties will be irreparably damaged in value and use by the construction of the fire station. The city admits that it will construct the fire station in the park area unless restrained by the court.

On January 6, 1857, a plat of the Town of Fremont was certified by a surveyor. The plat showed the Town of Fremont as being laid out by streets, blocks, and lots. Two city blocks were shown as a park. On October 1, 1860, two patents were issued by the United States to E. H. Rogers, chairman of the board of trustees of the Town of Fremont covering two areas of 160 and 120 acres which included the park involved in this litigation. The patents granted the land to the chairman of the board of trustees in trust for the several use and benefit of the occupants of the town according to their several interests in accordance with an act of Congress enacted in 1844. No park was mentioned in either of the patents.

The chairman of the board of trustees deeded part of the lots to private owners in 1860. In 1861 the board of trustees moved the park one block east of its then location by including the city block to the east and vacating the city block constituting the west half of the park as it was first shown on the plat. This action by the board of trustees was approved by the Territorial Legislature on January 9, 1862. The park has remained in its present location since the happening of the foregoing events. On June 8, 1965, the city council of the city of Fremont adopted a resolution directing the construction of a fire station in a designated portion of the existing park, resulting in the litigation now before this court.

For the purposes of the case it will be conceded that plaintiffs as the owners of property adjacent to the park will suffer some permanent damage by the construction of the fire station on the park property. The primary issue is whether or not the park areas has been dedicated in perpetuity as a park in a manner requiring that it be used exclusively as a public park.

It appears that in 1861 the Town of Fremont did not have legislative authority to vacate parks and close streets and alleys, hence the confirming legislative action in 1862. A suit was subsequently brought to test the validity of the action of the board of trustees and the confirming legislative action. It was sustained in this court. Kittle v. Fremont, 1 Neb. 329. In that case this court said: 'It is, as has been urged, that the action of the town board in making this change was entirely without authority of law, and therefore void, and being void, the act of the legislature ratifying and confirming their acts, can have no binding force or effect whatever. Now, without any reference to the effect, if any, of this conformatory statute upon private rights and interests, we are quite clear that so far as the public are concerned, it was entirely competent and proper for the legislature to enact it, and that to this extent full effect must be given to its provision.' The effect of this decision is to hold that the park was not at that time exclusively dedicated to park use, a conclusion borne out by the patents issued by the United States which made no reference to park use. It is evident that the Town of Fremont was originally established on the public lands of the United States and that patents were issued to the chairman of the board of trustees for the sole purpose of conveying title to occupants of the town according to their several interests, as provided by an act of Congress.

It is ordinarily the rule that where a municipality receives lands by outright grant, purchase, or absolute gift, its use or sale is for the determination of such municipality. See City of Gering v. Jones, 175 Neb. 626, 122 N.W.2d 503. The conveyance of the property by patent in the instant case was...