Carstens v. City of Wood River

• Decision Date: 11 December 1928
• Docket Number: No. 18921.,18921.
• Citation: 163 N.E. 816,332 Ill. 400
• Parties: CARSTENS v. CITY OF WOOD RIVER et al.
• Court: Illinois Supreme Court

332 Ill. 400

163 N.E. 816

CARSTENS

v.CITY OF WOOD RIVER et al.

No. 18921.

Supreme Court of Illinois.

Oct. 25, 1928.

As Modified, on Denial of Rehearing, Dec. 11, 1928.

Suit by Frank Z. Carstens against the City of Wood River and others. From a decree of dismissal, complainant appeals. Transferred from the Appellate Court.

Reversed and remanded, with directions.

Appeal from Circuit Court, Madison County; Jesse R. Brown, judge.

Springer & Buckley, of Edwardsville, for appellant.

F. J. Manning, City Atty., of Wood River, and Warnock, Williamson & Burroughs, of Edwardsville, for appellees.

FARMER, J.

Appellant, Frank Z. Carstens, filed a bill in the circuit court of Madison county against the city of Wood River, the mayor and aldermen of the city, the members of the recreation board of the city, and Carl Hale, praying that the defendants and their successors be enjoined from violating the terms of the dedication of a park to the city of Wood River by maintaining and operating a pavilion, a swimming pool, bathhouse, and fence described in the bill; that the defendants be enjoined from permitting the swimming pool, bathhouse, and pavilion to remain on the park property; that they be enjoined from leasing all or any portion of the park or leasing concessions on the park property; that they be enjoined from charging, or permitting to be charged, anything for the use of the swimming pool, bathhouse and pavilion or the use of the park property or any part thereof; that the defendants be enjoined from leasing the park, or any part of it, for any of the purposes mentioned, inconsistent with park purposes, and that the city and the mayor and aldermen be ordered to restore the park property to the condition it was in before the structures described in the bill were erected thereon. The defendants demurred to the bill, and the court sustained the demurrer. The complainant elected to abide by his bill, and a decree was entered dismissing the same for want of equity, and he prosecuted an appeal from that decree to the Appellate Court for the Fourth District. That court transferred the case to this court on the ground that a freehold was involved, and the Appellate Court had no jurisdiction.

The bill alleges that in 1914 the village (now city) of Wood River purchased, and the grantors, one Chessen and others, conveyed to the municipality, a tract of land in Wood River. The deed contained the following clause:

‘Said tract of land is conveyed to and accepted by said village of Wood River for park purposes, the same to be maintained as a park for said village, to be governed and controlled by the ordinances of said village for said purposes.’

The bill alleges the village of Wood River has since become the city of Wood River, and has succeeded to all the rights of the former village. The deed from Chessen to the municipality purports to convey a tract of land containing fifteen and a fraction acres, lying between Wood River avenue on the west and Whitelaw avenue on the east. In 1919 the north half of the property was condemned and taken possession of by the school authorities for a community high school site and grounds, leaving only the south half of the tract for park purposes, which the bill alleges is 768 feet in length and 416 feet in width, 50 feet on each side of which was dedicated for street purposes under the original deed to the village. The width of the tract outside the half taken for school purposes is 316 feet, exclusive of streets. The consideration expressed in the deed from Chessen to the village was $1,500 in cash and the further sum of $5,331, with interest at 5 per cent. per annum from date until paid, which sum was said to be due May 1, 1915. The bill alleges Chessen made another deed to the city of Wood River conveying and quitclaiming the same land on March 15, 1926. The deed recited that in 1914 he conveyed the land to the village of Wood River, and further recited:

‘This deed is executed for the special purpose of enabling the city of Wood River to provide for the construction, equipment, conducting, maintenance and operation of a recreation center of said tract of land, including public playgrounds, swimming pool, bath-house and recreation pavilion.’

The bill alleges appellant is the owner, and has been for the last eleven years, of a tract of land abutting 288.78 feet on Wood River avenue and 755.79 feet on Anderson avenue, containing approximately five acres, located in the built-up portion of Wood River, and suitable for subdivision and sale as building lots for residential purposes; that he owned and operated a dance pavilion on said tract; that his property lies on the west side of Wood River avenue, directly opposite the city par, which is on the east side of said avenue; that the north half of the park property is occupied by a community high school; that he has an easement in the park property giving him the right to have said property used for park purposes under the terms of the deed; that he is a citizen and taxpayer in the city of Wood River, and has the right to have the park property used in accordance with the terms of the deed to the village of Wood River; that his property is more valuable by reason of being located opposite said park than it would otherwise be; that, after the city of Wood River had obtained the deed of March 15, 1926, from the grantors, defendants, in spite of repeated objections made by the complainant, have constructed, or permitted to be constructed, on the park property a swimming pool, a bathhouse, and a pavilion; that the part of the park devoted to the swimming pool covers an area 455 feet long and 266 feet wide and is inclosed with a wire fence about seven feet high; that the swimming pool and fenced portion are located just south of the part of the park condemned for high school purposes and adjoining Wood River avenue; that the pavilion is located just outside the fenced portion and just south of it; that a tract 50 feet wide off the east side of the park is cindered, and devoted to parking cars of persons attending the swimming pool and pavilion; that the defendants leased two refreshment concessions on the park property to Carl Hale on June 1, 1926; that Hale has been operating the concessions under the pretended lease from the city, and the authorities contemplate renewing the lease to Hale or leasing to some other person for the same purpose; that, after the completion of the swimming pool, the city authorities and the recreation board proceeded to operate the same, charging 25 cents for each use of the pool, and an additional 5 cents for a towel, and 10 cents for a bathing suit; that the use of the swimmng pool, bathhouse, pavilion, and fence prevents the use of the park property for park purposes, and, when the swimming pool is not in use, the inclosure is padlocked; that the swimming season lasts only about three and one-half months in the warm weather, and the portion occupied by it is padlocked the remainder of the year.

The bill charges that the erection of the swimming pool, bathhouse, and pavilion was contrary to law; that it was the duty of the defendants to preserve the property for the purposes for which it was originally dedicated; that the erection and maintenance of the swimming pool, bathhouse, fence, and pavilion greatly depreciate the value of the complainant's property, and render it unsuitable for residence purposes if said use is continued, owing to the noise, which lasts until late at night, and the continuous sight of persons in bathing suits in the pool and on the walk adjoining the same. The bill charges that during the previous seasons the swimming pool and bathhouse were operated until late at night and on Sundays, and their operation constituted a nuisance; that it has caused the complainant irreparable damage; and that he has no adequate remedy at law to recover the same.

The points urged by appellant why the decree dismissing the bill should be reversed are: (1) The structures complainedof were not authorized by, and are contrary to, the terms of the deed conveying the park to the village of Wood River; (2) that it was contrary to law for the defendants, or any of them, to charge and collect pay for the use of the park or a portion thereof; (3)...