City of Nebraska City v. Nebraska City Speed & Fair Association

• Decision Date: 26 January 1922
• Docket Number: 21472
• Citation: 186 N.W. 374,107 Neb. 576
• Parties: CITY OF NEBRASKA CITY, APPELLANT, v. NEBRASKA CITY SPEED & FAIR ASSOCIATION ET AL., APPELLEES
• Court: Nebraska Supreme Court

186 N.W. 374

107 Neb. 576

CITY OF NEBRASKA CITY, APPELLANT, v. NEBRASKA CITY SPEED & FAIR ASSOCIATION ET AL., APPELLEES

No. 21472

Supreme Court of Nebraska

January 26, 1922

APPEAL from the district court for Otoe county: JAMES T. BEGLEY JUDGE. Reversed.

REVERSED.

W. F Moran and W. W. Wilson, for appellant.

L. F Jackson, contra.

Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ., GRAVES and WELCH, District Judges.

OPINION

WELCH, District Judge.

This action is brought by appellant, plaintiff below, to recover from appellees the possession and control of 30 acres of one of the public parks of appellant, containing 46 acres in all.

The appellee claims the right to the possession and control of the land in controversy by virtue of a certain agreement, made on or about December 21, 1908, by the board of park commissioners of the city of Nebraska City with the Nebraska City Speed & Fair Association, and by the city council of the city of Nebraska City by resolution ratified and confirmed. This agreement provided that, in consideration of appellee, Nebraska City Speed & Fair Association, constructing and maintaining a race track in said park, the board of park commissioners, for themselves as such board and for said city, did grant to said appellee for a term of 25 years the grounds designated upon a plat attached thereto as a race track, also ground upon which the amphitheater or grandstand was to be erected by the city, together with all the grounds south of "Second corso" (which road the county commissioners proposed to vacate; the location of which road is not shown in the record herein). The appellee Nebraska City Speed & Fair Association, by the terms of said agreement, was to have exclusive use and control of said ground so granted to it, for its race track, except the infield in said race track; also such use and control of land adjacent to such race track south of said "Second corso," to be used by appellee for barns, sheds, and corrals. And at all times said appellee was to have the exclusive control and supervision of said race track, buildings, and grounds. It was further provided in said agreement that said appellee should have the exclusive control of the entire tract of land comprising said park, during race-meetings, fairs, and expositions, given by it or under its control, and that it should have full power to charge admission and entry fees to such meetings; all receipts therefor to be the property of said appellee. It was also provided that the infield of said race track might be used for baseball, football and circuses, at the regular license price, and all other athletic amusements and sports might be held thereon, all of which were to be held at such times as might be consistent with the uses and purposes of said ground and buildings by said Nebraska City Speed & Fair Association, and upon reasonable rules and regulations to be made by said Nebraska City Speed & Fair Association and the board of park commissioners of said city. Said Nebraska City Speed & Fair Association, under the terms of said agreement, was also to have, during the time covered thereby, the use of a house then situated on said land, without charge, for occupation by its caretaker, and if not so used, and a revenue was derived therefrom, such revenue should go to the city. And it was further provided that at the expiration of said agreement said appellee should have the right to a renewal thereof. The appellee Tom Kastner claimed that he was in possession of said premises as caretaker and lessee of said Nebraska City Speed & Fair Association. Upon the execution of said agreement said Nebraska City Speed & Fair Association entered into possession of the land, the use and control of which was purported to be thus granted to it, built a race track thereon, fenced the same, and erected barns and sheds on land adjacent to said race track, expending in the aggregate therefor about $ 11,000. Said city built an amphitheater, fenced the entire 46-acre tract, and, together with the board of county commissioners, built a foot-bridge across a ravine through which a creek flowed through said park. The Nebraska City Speed & Fair Association annually from 1909 to 1918, inclusive, held an annual race-meet of three days' duration, and at one time had an exhibit of stock on said grounds. No race-meet or other affairs have been held by said appellee since 1918, but it has continued in possession of the ground claimed by it, has pastured the same with sheep, goats, horses and cows, including in such pasturage a tract of about two acres at the northwest corner of the lands of said park lying south of Table creek, which was not included in the lands covered by said agreement. Appellee association, by its caretaker, has also, for the greater portion of the time during the two years preceding the commencement of this action, kept locked a certain gate to an entrance to said park opening upon said two acres, which two acres are covered with large trees and blue grass. The said gate is also the only entrance to said park to reach the race track therein, except one which would require the passage along and near said barns to reach said race track. Appellees have thereby kept the public from enjoying the use and benefit of said race track and the grounds of said park which are in controversy herein, and have kept the gates opening to said race track locked, and the appellee Kastner, as caretaker and lessee of said Nebraska City Speed & Fair Association, has demanded a part of the gate receipts from baseball games, desired to be held on the infield of said race track, and kept the gate to said park locked when ball teams desired to play therein. The appellee Nebraska City Speed & Fair Association has rented said grounds to the appellee Kastner for $ 120 to $ 150 a year, and said Kastner has sublet the house thereon to other parties, receiving one-half the rent paid by him, and no part of said rent has been paid to said city.

The only conclusion that can be drawn from the foregoing facts, as to the object and purpose of said agreement, is that the same was for the purpose of giving to the Nebraska City Speed & Fair Association, at the expense of the taxpayers of said city, grounds upon which to build a race track for said speed association, and grounds for holding its race-meets, to which it charged an admission. The record shows that the city of Nebraska City voted bonds in the sum of $ 5,000 to procure funds for the purchase of said 46 acres, and also paid therefor the sum of $ 5,000 received by it from the sale of a tract of land which had some years prior thereto been purchased with the fund of $ 5,000 which had been placed in the...