Miller v. City of Columbia

• Decision Date: 26 January 1927
• Docket Number: 12146.
• Citation: 136 S.E. 484,138 S.C. 343
• Parties: MILLER et al. v. CITY OF COLUMBIA.
• Court: South Carolina Supreme Court

136 S.E. 484

138 S.C. 343

MILLER et al. v. CITY OF COLUMBIA.

No. 12146.

Supreme Court of South Carolina

January 26, 1927

Appeal from Common Pleas Circuit Court, of Richland County; W. H Townsend, Judge.

Suit by Malcolm J. Miller and others against the City of Columbia. Order denying an injunction pendente lite, and plaintiffs appeal. Reversed and remanded for taking order for permanent injunction.

The order of Judge Townsend, directed to be reported, is as follows:

Order Refusing Injunction.

"This is an action by the plaintiffs, adjoining landowners claiming an easement in the preservation of Maxcy Gregg Park to prevent the city of Columbia from erecting a baseball or municipal athletic field and stadium in a portion of the park. The park was donated to the city by the Rembert Development Company, the deed providing, 'The said property herein conveyed to be used by the said city of Columbia for a public park for all time to come.' In the common understanding in this country, a park is a piece of ground in or near a city or town, for ornament and as a place of resort of the public for recreation and amusement, and it is usually laid out as the agreement in this case provides in walks, drives, and recreation grounds. Standard Dictionary; So. Park Commrs. v. Montgomery Ward, 248 Ill. 304 93 N.E. 910, 21 Ann. Cas. 127. The city accepted the gift of the land on these conditions and for these purposes, and cannot change the use or apply the property to some other use inconsistent with the dedication. Grady v. City of Greenville, 129 S.C. 89, 123 S.E. 494. But the erection of buildings in a park is allowable when conducive to the better enjoyment of the grounds by the public. Atty. Gen v. Sunderland, 2 Ch. Div. 634, 45 L. J. Ch. 839; Spires v. Los Angeles, 150 Cal. 68, 87 P. 1026, 11 Ann. Cas. 465; McClatchey v. City of Atlanta, 149 Ga. 648, 101 S.E. 682; Bryant v. Logan, 56 W.Va. 141, 49 S.E. 21, 3 Ann. Cas. 1011. The primary object of the grant was to provide a place of enjoyment and recreation for the inhabitants of Columbia; and as the proposed building and changes by the city are, in the opinion of the council, in furtherance of that object, the city council has authority under the deed to make such changes if it deems them proper in the exercise of its discretion.

"For these reasons, it is ordered that the return of the city be adjudged sufficient, and the application for an injunction refused."

R. B. Herbert and Geo. L. Dial, Jr., both of Columbia, for appellants.

C. S. Montieth, Nelson & Mullins, and C. T. Graydon, all of Columbia, for respondent.

PURDY, A. A. J.

This is a suit for an injunction to prevent the city of Columbia from erecting a stadium and an athletic field in Maxcy Gregg Park, which park was given to the city by the Rembert Development Company, of which the late Mr. George R. Rembert was president. The area dedicated was 17 1/2 acres, and the terms of its dedication will be found in the agreement with the city, which bears date March 2, 1911, and the conveyance made in pursuance of the agreement, bearing date April 22, 1911.

Appellants, by their complaint, set up their grievances, alleging that they own real estate adjacent to this park, the acceptance and possession of the park by the city in pursuance of an agreement and a conveyance, and alleging further that the city had gone upon the property and was cutting down the trees and shrubbery planted for park purposes and was preparing to build a stadium to be used for public and private athletic purposes, to be leased to private interest for financial gain and to professional baseball clubs, and was preparing to destroy a large portion of the park, if not the entire park, in violation of its obligation to maintain it as a park, and was about to use public funds for private uses in carrying out these objects, in contravention of its powers.

A rule was issued to show cause why the city should not be enjoined from doing these acts, pendente lite. The city made its return to the rule, practically admitting that it was about to do all of the acts complained of, except it alleges that while the field and stadium would contain approximately 6 acres, only about 1 1/2 acres of the 17 1/2 acres would be taken for the purposes mentioned.

On hearing the return to the rule, his honor, Judge Townsend, adjudged the return to be sufficient, dismissed the rule, and refused to grant an injunction pendente lite. Testimony having been taken and the merits of the controversy having been brought into the record, it was agreed that the order of his honor, Judge Townsend, should be deemed to be an order on the merits, and the appeal should be taken as an appeal from the circuit court the same as if the cause had been there tried. (Let the order of his honor, Judge Townsend, be reported.)

The nature of the acts sought to be done by the city are clearly set forth in the testimony of its engineer, Mr. Porter, and its mayor, Dr. L. B. Owens. Mr. Porter states that a grandstand would be constructed of steel and concrete, and at the back of that will be an 8-inch brick wall. The units contemplated to be constructed at this time will lie totally in the section donated by the Rembert Development Company. The main entrance to it is almost in the middle of it. The structure is to be 25 feet high and will be 300 feet or more in length. In putting the grandstand as located, "We are closing Park Circle." "The new Park Circle does not go around the entire original grant of 17 1/2 acres, but cuts it practically in two. It goes around the original part, except that part facing the property bought by the city from the Commercial Holding Company. We bring Park Circle a different way, and it would remain intact, but would no longer go around the original tract. The structure will be 300 feet through its entire length, with a roof over all of it. The 300-foot structure would go entirely on the original grant, with the entrance in the middle of it. There will be no trees or shrubs or walkways within these walls. The field will be turf. It will be cut off from the rest of the park by a fence." "The fence will be 7 feet high, a solid fence to obstruct the view of any one on the outside." He states further that the structures would not affect the line of sight of those houses that are on considerably higher ground than the stadium. While Mr. Porter in his direct examination refers to small areas as being contemplated to be used, we have gathered from the whole trend of his testimony that the foregoing is an outline of the proposed stadium and athletic field.

Dr. L. B. Owens, the mayor of the city, states that in developing this municipal field and stadium, it is the idea of the city to improve the park for park purposes and for the enjoyment and pleasure of the citizens of Columbia; that there is a demand for an athletic field, and the city has undertaken in this way to supply the need, in order to furnish facilities for the use of the city and for the physical development and for different amateur athletic associations and to be used by professional baseball players and others at suitable times, in order to help defray expenses. "There is no doubt about it increasing the value of the property, especially that on the South side most decidedly," says Mayor Owens. He says that the city desires to get professional baseball to Columbia, and one of the objects, but not the principal object of building the stadium, is to lease it to professional baseball teams, with the expectation of getting some revenue, but no definite arrangements had been made.

It was contemplated that the structures would cost about $40,000 which would be provided from the public funds arising from the taxpayers of the city. The heads of...