Syllabus
by the Court.
Where a
public park is by the city dedicated to the public for
recreation purposes, the same thereby becomes a public
utility, and, so long as it remains such, the city is without
authority to lease a portion of such park for a period of 25
years for private gain and profit.
Where
the city enters into such a lease, and the lessee makes
valuable improvements thereon, and thereafter the city
forcibly takes possession of such property and uses it to its
own benefit and purpose, the city is liable for the
reasonable value of such property.
Appeal
from District Court, Major County; Charles Swindall, Judge.
Action
by Charles T. Derr against the City of Fairview for breach of
contract. From a judgment for defendant, plaintiff appeals.
Reversed and remanded, with directions.
LESTER
J.
The
parties appear the same as in the court below. The plaintiff
brought suit against the defendant, city of Fairview, in the
district court of Major county, Okl., for damages on account
of a breach of a certain written contract entered into
between plaintiff and defendant. The defendant interposed a
demurrer to the plaintiff's petition, which was by the
court sustained. The plaintiff elected to stand upon his
petition, and judgment was rendered for the defendant, from
which the plaintiff prosecutes this appeal to reverse the
same.
The
contract between the plaintiff and defendant, out of which
this suit was instituted, is in part the following:
"This contract and agreement made and entered into this
1st day of August, 1921, by and between city of Fairview, a
municipal corporation, party of the first part, and Charles
T. Derr, party of the second, witnesseth:
That, for and in consideration of the sums to be paid by
second party and the covenants on his part to be performed as
hereinafter set forth, the first party hereby contracts and
leases unto said second party site and ground for a swimming
pool to be constructed by second party in the southwest
corner of the park owned by said first party.
That said lease contract is to terminate on the 31st day of
August, 1946, at which time second party may remove all
buildings and material placed on said property by him.
That said first party is to furnish to second party water not
to exceed the sum of 6,000,000 gallons and electricity not to
exceed 1,800 K. W. per season, for the sum of $37.50, and
second party to pay for any additional amount of water the
sum of 15 cents per M gallons and for each additional amount
of electricity the sum of 10 cents per K. W., said sums to be
due and payable to said first party annually on the 31st day
of December.
It is further agreed that the first party will not grant to
any other person, firm, or corporation the right to build and
operate a swimming pool in said park during the life of this
contract."
The
plaintiff in his petition stated and alleged:
"That said defendant did wrongfully, unlawfully, and
against the will and consent of the plaintiff, cut off the
water and electric connections which were being used in the
maintenance of the said swimming pool by the plaintiff, and
then and there and ever since said time has refused to
furnish electric juice and water as required of it under the
terms of said written contract."
And, on account of such breach, the plaintiff prayed for
recovery of $44,000 judgment against the defendant. Plaintiff
in its second cause of action further alleged:
"After the said defendant had cut off the electric
current and water and refused to furnish the same as set
forth in the first cause of action of this petition, and on
to wit, the ------ day of April, 1925, the said defendant, by
and through its mayor, city marshal, and other officers, did
unlawfully, and without the consent and against the will of
plaintiff, the true owner, violently and by means of force
and arms and by means of false keys break and enter into the
plaintiff's property as aforesaid and take forcible and
unlawful possession thereof, and ever since said date has
occupied and used the same to the exclusion of the plaintiff
and contrary to the plaintiff's rights, ownership, and
possession thereof."
The
first proposition to be determined in plaintiff's first
cause of action is whether or not the contract between the
plaintiff and defendant was such a contract that was binding
and enforceable upon the defendant.
Section
4507, C. O. S. 1921, provides that a city may acquire real
estate for public park purposes. In the case of Barnes
Mayor, et al. v. Hill, 23 Okl. 207, 99 P. 927, syllabus
No. 1 in said opinion is as follows:
"A public park is a public utility within the meaning of
that term as used in section 27 of article 10 of the
Constitution."
In the
case of the City National Bank of Ft. Smith, Ark., v.
Incorporated Town of Kiowa, 104 Okl. 161, 230 P. 894, 39
A. L. R. 206, it is said:
"There is a clear distinction, recognized by practically
all authorities between property purchased and held by
municipal corporations for the use of the corporation as an
entity, and that purchased and held by such corporation for
the public use and benefit of its citizens. In other words,
its title to and power of disposition of property acquired
for strictly corporate uses and purposes are different from
its title to and power of disposition of property acquired
for and actually dedicated to the public use of its
inhabitants. As to the former class, the power of the
corporation to dispose of it is unquestioned. The rule is
different as to the latter class. It is only when the public
use
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