Mccarter v. City of Raton

• Court: New Mexico Supreme Court
• Writing for the Court: JAMES B. McGHEE, District Judge.
• Citation: McCarter v. City of Raton, 45 N.M. 351, 115 P.2d 90, 1941 NMSC 29 (N.M. 1941)
• Decision Date: 16 June 1941
• Docket Number: No. 4636.,4636.
• Parties: McCARTERv.CITY OF RATON et al.

45 N.M. 351

115 P.2d 90

McCARTER

v.CITY OF RATON et al.

No. 4636.

Supreme Court of New Mexico.

June 16, 1941.Rehearing Denied July 16, 1941.

Appeal from District Court, Colfax County; Irwin S. Moise, Judge.

Action by W. J. D. McCarter against the City of Raton and others, involving right of the city to vacate a portion of a park situated within the city. From a judgment for defendants, plaintiff appeals, and defendants cross-appeal, questioning right of plaintiff to prosecute the action.

Judgment affirmed.

A resident taxpayer of city was authorized to prosecute action involving right of city to vacate a portion of park situated within the city.

F. S. Merriau and Fred C. Stringfellow, both of Raton, for appellant.

John B. Tittmann, of Raton, for appellees.

JAMES B. McGHEE, District Judge.

The question is whether the City of Raton is authorized to vacate a portion of a park situated within that city, and permit its use as a link in a state highway; and whether the State Highway Commission may so use it.

A preliminary question raised by appellees by cross appeal is whether the appellant, a resident taxpayer of the city of Raton, is authorized to prosecute this action.

[1] The latter question was determined against the contention of appellees in Shipley v. Smith (Board of County Commissioners), 45 N.M. 23, 107 P.2d 1050, 131 A.L.R. 1225. The appellant is authorized to maintain this action.

The facts are as follows:

The city of Raton purchased, in 1911, from the Santa Fe Railroad Company, Blocks 8 and 9 of said city for a consideration of $1,800. The conveyance to the City, among other things, contained the following: “Whereas the City is desirous of becoming the owner of said tract to be used for the purposes of a public park and the construction of a building thereon to be used exclusively for the purposes of a public library; and, Whereas, the railway company is willing to sell said tract of land to the city for the purposes mentioned.”

The habendum clause was: “To have and to hold, all and singular, the said premises, together with the appurtenances, unto the said City of Raton so long as the same shall be held and used for the purposes hereinbefore mentioned.”

The City has improved said property and maintained it as a park for the use and benefit of its citizens, since its acquisition. It has built thereon a public library and maintained it for a like purpose.

The state highway in question passes through the City of Raton, and crosses the Santa Fe railway tracks within the city limits. The object of vacating a portion of the park is to utilize it for an approach to an underpass constructed under the railroad tracks which immediately adjoin the park.

Subsequent to the institution of this action the railway company executed and delivered to the City a quitclaim deed, conveying all its rights to that portion of the real estate which the City and the State Highway Commission propose to utilize as a link in the state highway.

The contention of appellant is that the City of Raton holds said property as a trustee for the benefit and use of the public, and is without authority to vacate it, or any portion of it, for any purpose; and particularly for the purpose intended.

By general law, cities in New Mexico were at the time of the acquisition of said property, and still are, authorized “to lay out, establish, open, alter, widen, extend, grade, pave, or...