Gage v. City of Topeka, 45604
| Decision Date | 11 April 1970 |
| Docket Number | No. 45604,45604 |
| Citation | 205 Kan. 143,468 P.2d 232 |
| Parties | Joseph A. GAGE, John D. Gage and Dorothy Gage Tarleton, Appellants, v. CITY OF TOPEKA, a Municipal Corporation, et al., Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The action of a city in granting to an individual the exclusive right to operate a miniature train within a public park is held to be a license rather than a lease, and not in conflict with provisions of the deed of gift, by which the city acquired the property, to the effect that it should be inalienable by deed, gift, lease or other method, and further held, such action does not constitute an unauthorized use of a public park.
Charles Rooney, Jr., Topeka, argued the cause, and Charles Rooney, Sr., Topeka, was with him on the brief for appellants.
James P. Buchele, City Atty., argued the cause, and John Lewis, former City Atty., and Donald S. Simons, former Asst. City Atty., were on the brief for appellees.
HARMAN, Commissioner.
This action seeks recovery of land by way of reverter because of alleged violation of restrictive covenants contained in a deed of conveyance.
Plaintiffs appeal from summary judgment rendered against them and in favor of the defendants, the city of Topeka and its officers. The parties concede only a question of law was presented to the trial court the facts not being at issue.
In 1899 the city of Topeka accepted an eighty acre tract of land given it by the heirs of Guilford G. Gage for the purpose and on the condition, that it should be used as a public park, to be known as Gage Park, 'for the benefit of the health, comfort and recreation of the citizens of Topeka and their friends, and such other orderly persons as may resort thereto.' The deed of gift further contained a provision that 'said real estate shall be inalienable by said City of Topeka, either by way of deed, conveyance, lease, or in any other manner, and shall be forever held and used for the purposes aforesaid.' It also provided that 'upon violation of, or default in, or non-compliance with any of the conditions aforesaid, the grant hereby made shall be forfeited, and said land and every right thereto or therein shall revert to and become the absolute and exclusive property of said parties of the first part, their heirs and assigns.' The property is a part of that which has since been maintained by the city as Gage Park.
In October, 1966, the city entered into a written agreement, the object of complaint in this action, granting to one A. C. McCall the right to construct and operate a miniature train upon the park premises.
Plaintiffs, the heirs of the grantors in the deed of gift, contend this agreement constitutes a conveyance in violation of the provisions in the deed, working forfeiture and reversion of the premises to them.
The agreement in question (with its subsequent modifications) refers to McCall throughout as a 'Concessionaire'. In it he is given the exclusive right, for a term of sixty months with option to renew, to make available to the public a miniature train ride, this being described as a 'concession, right and privilege'; concessionaire is to furnish all equipment, pay all costs of construction, maintenance and operation including proper roadbed, track, train station and other facilities, the train to be a scale model of an 'Old Time Steam Train Replica'; the design of the train station is to be approved by the city and its location and that of the railroad track and its length are to be designated by the city; concessionaire may not use any space in the park except that designated by the city; all park alterations incident to construction of the railroad are to be approved by the city prior to commencement of alteration; all facilities shall be maintained in a safe, neat and satisfactory condition; the train is to be operated so as not to interfere with the normal use and enjoyment of the park by the general public; hours of operation shall be as directed by the city; all park rules and regulations are to be obeyed; fees charged for train rides shall be as fixed by the concessionaire and approved by the city; concessionaire is to pay monthly to the city 22 1/2 per cent of the gross receipts derived from rides; if concessionaire is dissatisfied with any order, direction or decision on the part of the city he may appeal therefrom to the mayor and board of commissioners whose decision shall be final; the agreement may not be transferred by the concessionaire and may be terminated by either party upon thirty days' written notice; in the event of termination of the agreement for any reason concessionaire is to retain his own property placed on the premises but is to restore city premises to their present condition, including but not to be limited to, leveling, bringing to grade and reseeding all areas involved; concessionaire is to furnish liability insurance on behalf of himself and the city insuring against injury or death in stated amounts.
The agreement also contained these provisions:
'VIII
'XIII
'It is mutually agreed by the parties hereto that in the event title of the City to any land or portion of land to be used by Concessionaire hereunder is adjudged by a Court of competent jurisdiction to be in jeopardy, or to be such that the City is prohibited from allowing such use as contemplated hereunder, then, and in that event, this agreement shall forthwith terminate, and Concessionaire shall, from such time thereafter, have no right, title, interest or claim against the City whatsoever.'
Appellants contend the agreement constitutes a lease in violation of the deed of gift, giving rise to a right of forfeiture. They concede that if the agreement be held to be a license, there is no violation and no right of forfeiture.
In 1916 the selfsame deed of gift conveying Gage Park to the city was the subject of litigation in Bailey v. City of Topeka, 97 Kan. 327, 154 P. 1014. There an adjoining landowner...
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