Jones v. City of Jackson

• Decision Date: 07 April 1913
• Docket Number: 15,956
• Citation: 104 Miss. 449,61 So. 456
• Court: Mississippi Supreme Court
• Parties: MRS. MARY MCL. JONES ET AL. v. MAYOR AND BOARD OF ALDERMEN OF CITY OF JACKSON

61 So. 456

104 Miss. 449

MRS. MARY MCL. JONES ET AL. v. MAYOR AND BOARD OF ALDERMEN OF CITY OF JACKSON

No. 15,956

Supreme Court of Mississippi

April 7, 1913

APPEAL from the chancery court of Hinds county, HON. G. G. LYELL Chancellor.

Bill by Mrs. Mary McL. Jones against the city of Jackson and board of mayor and aldermen of the city of Jackson in which the state intervened. From a judgment for defendant, plaintiffs appeal.

The facts are fully stated in the opinion of the court.

Reversed.

Easterling Potter and Greaves, for appellants.

The only case we have been able to find holding against us is the case of Spires v. City of Los Angeles et al., 150 Cal. 64, Am. Eng. Ann. Cases, 465. In this case, "The plaintiff, a resident taxpayer of the city of Los Angeles and the owner of certain property abutting on what is claimed to be a public park in said city, brought this suit by injunction against the city of Los Angeles, the mayor and common council, the members of the board of park commissioners of that city, to restrain them from erecting a public library on a tract of land owned by said city of Los Angeles bounded by Hill, Sixth and Olive streets in that city and known as Central Park, on the ground, that the city as owner of said property, had dedicated it to the use of the public for park purposes, and that such purpose would not permit erection therein of a public library building.

The Central Park in question is six hundred by three hundred and twenty feet in size and it was proposed by the municipal authorities to use a space in the center thereof, one hundred by one hundred and fifty feet, upon which to erect a public library.

We contend that this case is utterly unsound. We will call the court's attention to the fact that among the parks mentioned in support of the California court's theory in that case is Central Park in New York City, the opinion says "To instance--in Central Park in New York City there is a museum of natural history and a metropolitan art museum."

How on earth because in New York City a museum of natural history and a metropolitan art museum is placed on a broad expanse of ground, consisting of more than one hundred acres, can it be claimed to justify a court in holding that the placing of a brick structure one hundred feet by one hundred fifty feet (a library), on a park, six hundred feet by three hundred and thirty feet, is the proper use of such ground?

There are many things that might be of perfect legitimate use in the great field used for parks in larger cities that would be absolutely inconsistent with the uses of a park square and yet interfere with the uses and purposes of such as a park.

Then again, the California court justified itself in holding that the erection of a public library on a small public park in controversy was properly used by citing the case of the Attorney-General v. Sunderland, 2 C. H. D. 434. In that case the park in question was twenty-five acres. The court in that case held that a small portion of it could be used for a museum, library or conservatory and that such use would not be inconsistent with its use for park purposes. We contend that the very case upon which the case of Spires v Los Angeles is based shows that the conclusion reached in that case was wrong, because it may be the proper use of a very large park to place therein a museum or library or conservatory cannot justify, we contend, the use of a public square for such purposes. In a park consisting of twenty-five acres, as the park in the Sunderland case, or in a park consisting of one thousand acres, as Central Park in New York City, there is enough room to build a library and at the same time leave sufficient space for the recreation and enjoyment of the public.

It is our contention that the main use of a park, be it a small park or a large park, is a place for air, exercise amusements and outdoor recreation and that a park should not be used for any purpose that will impair its usefulness, as a place for amusement, exercise and recreation, the purpose of its creation.

It is our contention that the building of a large permanent structure in the center of a park as small as Smith's Park and placing therein a library would practically destroy it for park purposes and ought not to be permitted. As an illustration of whether the use of a park--of the one in question--as a public library is the proper use we call your attention to the natural instincts of man, when the suggesting of placing a library in this park is first mentioned. We will venture to say that when this proposition is mentioned for the first time to ninety-nine persons out of a hundred, the very suggestion shocks them. It occurs to them on first blush that such use is absolutely inconsistent with the use of such as a park, but on the other hand when it is suggested to anyone that a band stand, statuary, fountains or the like be erected in the park, the suggestion meets with ready approval in the minds of persons to whom the suggestion is made, because it occurs to anyone that such use of a park is a legitimate and proper use.

The only case, so far as we have been able to discover, holding that the building of a public library was the proper use of a public square is Spires v. City of Los Angeles, supra, and although it is true that we have found no such case that holds directly that such use of a public square for a public library is an improper use, it is our contention that the case of Rowzee v. Pierce, 75 Miss. 846, 65 Am. St. 625, settles the question so far as our state is concerned; for while a library building was not the character of the building proposed to be erected on the park in question in that case, yet the court held that the erection of a building of any kind would be a perversion from the use for which it was intended. In that case a park in the town of Pontotoc dedicated "only for public use as an ornamental park, subject to such regulations as they make for the purpose of fencing and ornamenting the same, and keeping the same in good order, and preventing nuisances or anything tending to subvert the before-declared object of the donors of money to purchase the same."

The board of mayor and aldermen of the town of Pontotoc had begun the construction of the school building on this lot. The court in deciding this case did not adopt the theory of the California case, that the test of whether a building should be erected in a public park was the use of that building; that is, whether the building was to be used for the enjoyment of all the public or whether it was to be used for only a special class. But the court in the Rowzee case adopted another course of reasoning. It could have stated that the school will only be used by a certain class, to wit, those between five and twenty-one years of age, and held on that ground that such use was not authorized by the dedication. But our court adopted an entirely different line of reasoning, a much truer line of reasoning, we contend, and that is that no building at all can be placed on ground dedicated to park use.

In this opinion the court cited the case of Rutherford v. Taylor, 38 Mo. 315 and said as follows: "It is held in Rutherford v. Taylor, supra, that buildings could not be erected in a public square. "

And also, quoting, cites the case of Church v. City of Portland, 6 L. R. A. 259, and quoted the following language from that case: "Using land to erect a public building thereon is not using it for ornamental purposes, however grand or magnificent the structure erected may be. It devotes the land to a useful purpose; but it certainly is not using it for an ornamental one.

Then in the case against the Mayor, etc., 33 N. J. L. 13, 97 Am. Dec. 698, cited in the Rowzee v. Pierce, our judges quote as follows: "The word 'square' on this plat of ground, indicated a public use, either for purposes of a free passage or to be ornamented and improved for grounds of pleasure, amusement, recreation or health. That is the proper and natural meaning of the term and its ordinary and usual significance." And after quoting these decisions, which all emphasize the idea that a park should be kept open and that public buildings should not be erected thereon, our court sums the matter up in its own language as follows:

"It must thus be clear that none of the objections interposed by the demurrer are available as against a bill of this particular nature. It certainly cannot be impossible for the town of Pontotoc to raise funds with which to make this property a public ornamental park, as was originally intended. The town may not be able, and it might not be desirable, to incur any great expense towards this end; but surely the expense would be small which would be required to properly keep it in order, and use it as an open, public, ornamental park, devoted to the amusement, recreation and health of the citizens.

We, therefore, urge that our court is committed to that line of reasoning which holds that no permanent structure can be erected in a public park but that such parks should be left open and devoted to the amusement and recreation and health of the citizens. And we contend that the principle is the same whether the building proposed to be erected is a schoolhouse or library.

The case of Riggs v. Board of Education, 27 Mich. 262, is not authority in this case, for under the dedication the land used for a park in that case was dedicated "for such uses as city council might provide." The building of a library under a dedication as broad as this was, of course permissible because the absolute discretion in the use of the property, was in the city council.

We call the court's especial attention to the elaborate note in the case of Cardinal v. Crocker, 25 L....