Norton v. City of Gainesville

• Decision Date: 16 February 1955
• Docket Number: No. 18829,18829
• Citation: 86 S.E.2d 234,211 Ga. 387
• Parties: W. L. NORTON et al. v. CITY OF GAINESVILLE et al.
• Court: Georgia Supreme Court

Page 234

86 S.E.2d 234

211 Ga. 387

W. L. NORTON et al. v. CITY OF GAINESVILLE et al.

No. 18829.

Supreme Court of Georgia.

Feb. 16, 1955.

Syllabus by the Court.

1. The lease contract, wherein the City of Gainesville and its Park Board leased to Gainesville Lions Railway Company an easement over a portion of the city's public park for a term of ten years for the operation of a miniature railroad by the lessee, with the profits from its operation being equally divided between the Park Board and the Gainesville Lions Club, a private association, is invalid; neither the city nor its Park Board having authority to divert its property, dedicated for use as a public park, to a private corporation for private gain.

2. The plaintiffs, as taxpayers and citizens owning property adjoining the public park, had such an interest in the maintenance of the park for public use as to authorize them to maintain a suit to restrain the city and its Park Board from leasing a part of the public park. It was error to sustain the general demurrers of the defendant railway company and the Lions Club.

3. It was not error to sustain the special demurrer to paragraph 6(h) of the petition, but was error to sustain the other special demurrers.

R. W. Smith, Johnson & Johnson, Hammond Johnson, Gainesville, for plaintiffs in error.

C. E. Smith, Jr., Jeff C. Wayne, howard T. Overby, E. D. Kenyon, Kenyon, Kenyon & Gunter, J. E. Palmour, Jr., Gainesville, for defendants in error.

ALMAND, Justice.

The exception here is to an order sustaining general and special demurrers to an equitable petition brought by W. L. Norton et al., as citizens and taxpayers, against the City of Gainesville, a municipal corporation; named individuals as members of the Gainesville Playground and Recreation Board; Gainesville Lions Railway Company, a purported corporation, and the Gainesville Lions Club, a voluntary association composed of approximately 100 members. The demurrers were filed by only two of the defendants, i. e., Gainesville Lions Railway Company and the Gainesville Lions Club. The petitioners attached as an exhibit to their petition a contract alleged to have been entered into between the City of Gainesville, Gainesville Playground and Recreation Board, the Gainesville Lions Club, and Gainesville Lions Railway Company, whereby the City of Gainesville and its Park and Recreation Board granted to the Gainesville Lions Railway Company for a term of 10 years an easement for the construction of a miniature railroad in the city park, 'including the construction, maintenance and operation of trestles, fills, tunnel, station, and other improvements, with a right-of-way of such width as will insure the construction, maintenance, and safe operation of said railroad, in the position and location in said park as is shown by blue print of said miniature railroad right-of-way,' with the right of the railway company to extend the lease for an additional term of 10 years upon the giving of 30 days' notice in writing. In this contract, the railway company covenanted to construct the miniature railroad; to float bonds or borrow money to build and complete the railroad; to provide personnel to operate the railroad on such days and during such hours as it may deem profitable; and, after paying its operating cost, to apply all of the net revenue to the retirement of the debt incurred in the construction of the railroad, and when the debt has been fully paid, to pay over to the Park Board one-half of the net profits less current operating expenses and a reasonable reserve for repairs and maintenance, and to pay the remaining one-half of the net profits to the Gainesville Lions Club, the Park Board agreeing to use all profits received from the operation of the railroad for recreational purposes and facilities in the City of Gainesville, and the Lions Club agreeing that it would use all funds derived from the operation of the railroad for charitable purposes.

This contract was attacked as being ultra vires and illegal for several reasons; one being that it was an attempt to lease the public property of the city to private parties for individual gain and profit, and neither the city nor its Park Board had the power or authority under the law to allow the use of the profits from the operation of the railroad by private parties for private use. The plaintiffs alleged that they bought lots on which they have constructed their homes, which face and adjoin the city-park property in Gainesville, which was purchased and dedicated for public-park purposes, and they set out in specific detail how their properties would be affected and injured by the acts complained of in the petition, that is, the noise and disturbance incident to the operation of the miniature railroad. Other specific allegations of the petition relevant to the decision in this case will be found in the opinion.

1. The first question for decision is, whether or not the City of Gainesville and its Park Board had lawful authority to enter into this lease contract. The contention of the plaintiffs is that the act of the municipality and its Park Board was ultra vires. Code, § 85-410 provides that, where the owner, either expressly or by his acts, dedicates property for public use, and the same shall be used for such length of time that the public accommodation or private rights might be materially affected by an interruption of the enjoyment, said dedicator may not afterwards appropriate it to private purposes. Where a municipality dedicates property to a public use, it inures to the benefit of all who are at the time, or may afterwards become, citizens of the municipality, such dedication being in the nature of an estoppel in pais; and where an attempt is made by the proprietor to revoke it by a sale of the land, the municipality may be enjoined by any person interested. Mayor, etc., of City of Macon v. Franklin, 12 Ga. 239(5, 6). Where a municipality dedicates property to a public use, it may be put to all customary uses within the definition of the use. Any use which is inconsistent, or which substantially and materially interferes, with the use of the property for the particular purpose for which it was dedicated will constitute a misuser or diversion. Brown v. City of East Point, 148 Ga. 85(3), 95 S.E. 962. In Pettitt v. Mayor, etc., of City of Macon, 95 Ga. 645, 23 S.E. 198, a private citizen sought to enjoin the City of Macon from disposing of a part of land which had been dedicated for use as a cemetery. It was there held that the mere appropriation by a municipal corporation to a particular public use of a part of its own public domain is not in itself an irrevocable dedication of such property to such particular use as will prevent a subsequent appropriation of the same property to some other public use as the interest of the public may thereafter require; and in order for such appropriation to amount to an irrevocable dedication, there must be upon the part of the public such use under the first appropriation that a change in use will operate as a serious injury or inconvenience to the general public; and a similar result would arise in favor of an individual citizen where there had been such investment by him upon the faith and strength of the first appropriation that a change of use would operate as a fraud upon him and impair his rights of property there invested. In the latter case, while as to him a dedication in a strict sense might not exist, an estoppel would arise in his favor and bar the right of the municipality without compensation to change the same.

It is argued by counsel for the defendants that the use of a part of the property on which the railway company will construct and operate the miniature railroad will be for recreational purposes and subject to use by the general public, and none of the profits that the Lions Club may derive from its operation will be used for private gain, but solely for charitable purposes, and therefore that the lease to the railway company does not interfere with the general public use of the property, and that the city and the Park Board had lawful authority, in the operation and maintenance of the park, to make this lease.

The weight of authority is that a municipal park is a public utility, and a portion thereof cannot be leased for a term of years for private gain. 10 McQuillan on Municipal Corp. (3 ed.) § 28.53. There appears from the authorities to be a clear distinction between property purchased by a municipal corporation and held for use by it as an entity, or in its proprietary capacity, and property purchased by the city for the public use and benefit of its citizens. The title and power of disposition of property acquired for strictly corporate purposes and held in its proprietary capacity, are different from its title to property acquired for and dedicated to the public use of its inhabitants. As to the former, the power to dispose is unquestioned, but as to the latter, in the absence of express legislative authority, it is only where the public use has been abandoned or the property has become unsuitable or inadequate for the purpose to which it was dedicated that the city has power to dispose of such property. 3 Dillon on Municipal Corp. (5th ed.) § 1102; Tiedeman on Municipal Corp., § 208. See also Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396. In Derr v. City of Fairview, 121 Okl. 23, 247 P. 45, it was held that, where a public park has been dedicated for recreational purposes, it becomes a public utility, and so long as it remains such the city has no authority to lease a portion of the park for a period of 25 years for private gain or profit. In Lincoln Park Traps v. Chicago Park Dist., 323 Ill. 107, 55 N.E.2d 173, it was held that a city-park board cannot lease a portion of its lands to a private individual,...