City of Phoenix v. Landrum & Mills Realty Co.

• Decision Date: 26 February 1951
• Docket Number: No. 5462,5462
• Citation: 71 Ariz. 382,227 P.2d 1011
• Parties: CITY OF PHOENIX et al. v. LANDRUM & MILLS REALTY CO.
• Court: Arizona Supreme Court

Page 1011

227 P.2d 1011

71 Ariz. 382

CITY OF PHOENIX et al. v. LANDRUM & MILLS REALTY CO.

No. 5462.

Supreme Court of Arizona.

Feb. 26, 1951.

Francis J. Ryley, George Read Carlock and Joseph P. Ralston, all of Phoenix, for appellant William Larson.

Jack Choisser, City Atty., Laurence H. Whitlow and Jack D. Hays, Asst. City Attys., all of Phoenix, for appellants, City of Phoenix et al.

Jennings, Strouss, Salmon & Trask, Riney B. Salmon and Clarence J. Duncan, all of Phoenix, for appellee.

DE CONCINI, Justice.

This case arose from the protest of defendant, William Larson, a taxpayer of the City of Phoenix, against the action of the city council in leasing certain real property owned by the city to plaintiff Landrum and Mills Realty Company, a corporation. The realty company, as plaintiff and hereinafter referred to as appellee, brought an action under the Uniform Declaratory Judgment Act, sections 27-701 to 27-706, A.C.A.1939, and secured judgment of the lower court upholding the validity of the lease. The facts are not in dispute and are set forth in an agreed statement of the case. They are substantially as follows: On September 13, 1949 and for many years theretofore the City of Phoenix owned and now owns certain real property involved in this action which is located inside the city and is described as follows:

The East half of Block Twenty-three (23), Original Townsite of Phoenix, according to the plat of record in the office of the County Recorder of Maricopa County, Arizona, in Book 2 of Maps, page 51 thereof.

For some time the council of the City of Phoenix, had desired to lease said property not only for revenue purposes but also to provide parking facilities for automobiles in the downtown area. The parking problem had become actue and had been the subject of many discussions and a matter of great concern to the council.

To accomplish these purposes the city council duly passed the necessary ordinances and resolutions and pursuant thereto entered into a lease with the appellee realty company, it being the highest and best bidder, to rent the premises for a period of 50 years at a rental of $2500 per month conditioned that the appellee build a parking garage to accommodate 400 cars at one time. The appellee met all the requirements by posting a sufficient bond and executed a lease satisfactory to both parties.

Thereafter, defendant William Larson, as an elector and taxpayer of the city asserted that said lease was void, invalid or voidable on the part of the city. On July 18, 1950, he caused to be served on the appellee realty company and the defendant city a written notice of his objections to said lease and demanded that it be rescinded and cancelled and declared null and void. As a result of this written notice by defendant Larson, the city considered the nullification and rescission of said lease.

Because of these threats by defendant Larson and the position of the defendant city, it became impossible for appellee to proceed with any reasonable degree of safety to perform the acts and expend the moneys required by the lease. To resolve the uncertainties so created and to establish the validity of the lease, an action was brought by the appellee in the superior court of Maricopa county. The court, sitting without a jury, found in favor of the appellee and decreed the lease to be valid.

From said decree the defendants appeal and assign six errors which may be summarized as follows:

1. The city of Phoenix was without power to lease the real property involved because it had been dedicated as a plaza or park and such dedication had never been vacated.

2. The Phoenix City Council had no power to make the lease because by Chapter XXII of the Phoenix city charter, the power to lease the land here involved was vested in the parks, playgrounds and recreational board.

3. Ordinance No. 5295 of the City of Phoenix, pursuant to which the lease was made, and which purported to be an emergency measure, is not a proper measure because no emergency existed.

4. The declaration of the existence of an emergency does not 'state in a separate section the reasons why it is necessary that it should become immediately operative' as required by Chapter V, section 14, of the Phoenix city charter.

5. The lease is so improvident as to render its authorization by the Phoenix city council an abuse of the council's discretion, and therefore void.

6. A city is without legal authority to allow the deduction from lease rentals of amounts equal to taxes paid by the lessee.

Before treating the above assignments, reference should be made to Woodward v. Fox West Coast Theaters, 1930, 36 Ariz. 251, 284 P. 350. That case held that a somewhat similar lease on the west half of Block 23 was valid. The history of title to the property is identical with the property in this case.

The first two assignments will stand or fall on the determination of the question of dedication.

Further facts which the parties agree upon are that the city acquired the fee to this property in 1881 from the then probate judge with no restrictions as to its use. In 1885 a map or plat was filed in the office of the county recorder by persons unknown with the property in question marked on the map as a plaza.

Appellants contend under the rule laid down in Allied American Investment Co. v. Pettit, 1947, 65 Ariz. 283, 179 P.2d 437, that this property has therefore been dedicated as a plaza or a park. The Allied American Investment case recognized the doctrine of dedication by plat but it rests upon the statutes in effect at the time of that recordation. Those statutes are presently codified as sections 17-1818 and 16-231, A.C.A. 1939. In this case the recordation took place in 1885 where as the statutes relied upon in the Allied American Investment case became effective in September 1901.

The case of Evans v. Blankenship, 1895, 4 Ariz. 307, 39 P. 812, which also recognizes the general doctrine of dedication by plat does not aid appellants here. Dedication is the intentional appropriation of land by the owner to some proper public use. The intention of the owner to set aside lands or property for the use of the public is the foundation and life of every dedication. Allied American Investment Co. v. Pettit, supra.

The appellee contends and it is not controverted that the making and recordation of the map and plat in 1885 was done by persons unknown. In 16 Am.Jur. Dedication, § 22, p. 366, it is stated: 'Where the plat is recorded without the owner's signature or knowledge (or, we might add, authority), it is ineffective, so that if later the owner...