Derr v. City of Fairview

• Decision Date: 01 June 1926
• Docket Number: 16770.
• Citation: 247 P. 45,121 Okla. 23,1926 OK 517
• Parties: DERR v. CITY OF FAIRVIEW.
• Court: Oklahoma Supreme Court

247 P. 45

121 Okla. 23, 1926 OK 517

DERR v. CITY OF FAIRVIEW.

No. 16770.

Supreme Court of Oklahoma

June 1, 1926

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.

Twyford & Smith, of Oklahoma City, and C. B. Wood and Tom E. Willis both of Fairview, for plaintiff in error.

Carl Kruse, of Enid, for defendant in error.

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 has been abandoned, or the property has become unsuitable or inadequate for the purpose to which it was

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