Owen v. City of Tulsa

• Decision Date: 21 September 1910
• Citation: 111 P. 320,27 Okla. 264,1910 OK 293
• Parties: OWEN et al. v. CITY OF TULSA et al.
• Court: Oklahoma Supreme Court

111 P. 320

27 Okla. 264, 1910 OK 293

OWEN et al. v. CITY OF TULSA et al.

Supreme Court of Oklahoma

September 21, 1910

Syllabus by the Court.

The charter of the city of Tulsa prepared and proposed by a board of freeholders of said city, and later adopted by the qualified electors of said city, pursuant to article 18 of the Constitution and the act of March 22, 1908 (Laws 1907-08 c. 12), vests in said city, under article 2, §§ 1, 7, power to sell a part of a public park, the fee-simple title of which, without limitation, is in the city.

In order to state a cause of action authorizing the interference of a court of equity to reform a deed on the ground of mistake by inserting therein a clause limiting the use of the land conveyed, it must appear that the mistake was mutual and common to both parties to the instrument, and that both had done what neither intended.

Error from District Court, Tulsa County; L. M. Poe, Judge.

Suit by Chauncey A. Owen and others against the City of Tulsa and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Kellough & Dillard, for plaintiffs in error.

Hainer & Martin, for defendants in error.

TURNER J.

On March 17, 1910, Chauncey A. Owen, for himself, and Chauncey A. Owen and Frank A. Gillespie, as resident taxpayers of the city of Tulsa, for themselves and all other residents of the city of Tulsa similarly situated, plaintiffs in error plaintiffs below, sued the city of Tulsa, a city of the first class, John O. Mitchell, mayor, and the commissioners of said city in the district court of Tulsa county. The amended petition substantially states that said Owen was on August 18, 1909, the owner of a certain tract of land in said city containing about 27 acres (describing it); that on said day he sold and conveyed said land to said city; that the same was bought by the city for a public park pursuant to a vote of city bonds theretofore issued for that purpose; that said property was worth $20,000, but, for the purpose of having a public park located thereon so as to enhance the value of his adjacent property, he sold said tract to said city for $13,500; that said sale was recommended by the park board and approved by the board of commissioners of said city for the sole purpose aforesaid, all of which was understood by the contracting parties at the time, but that no clause was inserted in the deed limiting the title or use of the land conveyed for the reason that his attorney informed him that such was unnecessary; that said land was well adapted for park purposes, and for the reasons stated was sold for about two-thirds of its real value; that immediately thereafter said board of commissioners by and with the consent and upon the recommendation of said park board dedicated said land as a public park; that said park board at once began to improve the same as such at public expense, and caused walks and streets to be laid off, shrubbery planted, nutured, and cultivated, a greenhouse erected, and set apart and designated parts of said park for different purposes; that the part which it proposes to sell was designated as a playground for children, all of which said land is being continuously used by the public as a public park; that said boards are threatening to sell and convey said playground to the Tulsa Vitrified Brick Company, from which to excavate large quantities of earth which will make a dangerous hole for the accumulation of water and the production of sickness contrary to the purposes for which said land was bought, the money voted, the charter of the city, and the laws of the state.

For a second cause of action, the petition substantially states that the purchase of said property by the city is void for the reason that the charter provides the city may "take hold and purchase lands as may be needed for corporate purposes of this city," and that that part of the property which it threatens to sell was not purchased or needed for corporate purposes, but was purchased for the purpose of reselling the same to said Tulsa Vitrified Brick Company; that said Owen is the owner of property adjacent to said park, and, theretofore knowing the purpose for which said company sought to buy part of said park property from him, declined to sell; that well knowing that fact, and for the purpose of defrauding him and aiding the brick company to secure said property, members of said park board conspired with said brick company and induced the city to purchase said property, and afterwards recommended the sale thereof by the city to the brick company; that said park board, while using the city's money arising from the sale of the bonds in making said purchase, was in fact acting as agent for the brick company in securing said land in fraud of his rights and that said purchase was ultra vires and void.

For a third cause of action, plaintiffs say that, if they are mistaken in the allegation that the purchase of said land now proposed to be sold to the brick company was ultra vires, then they allege, in the alternative, that the same is still necessary for park purposes, and was at the time it was purchased, which necessity still exists; that said land was dedicated as a public park by said board of commissioners by consent and upon the recommendation of said park board, which latter at once began to improve said property as such; that it employed a superintendent and assistant by the year at public expense to superintend, put in order, and make said park; that said board caused walks and streets to be laid off, shrubbery to be planted, nutured, and cultivated; that it caused a greenhouse to be built and set apart, and designated different parts of the park for different purposes; that the part which said board of commissioners proposes to sell to said brick company was set apart as a playground for children, the whole of which is now being improved by the park board for park purposes, and is being continuously used by the public as a public park; that, under the charter of the city and the laws of the state, said board of commissioners of said city have no right to sell any property acquired for public purposes, so long as the necessity for its use remains, and where, as in this case, the property was purchased with the proceeds of bonds voted by the city for the purpose of buying the land for a park; that said Owen is the owner of property adjacent to said park which will be greatly injured by a sale of said part to said company to be used as stated; that all property of other citizens similarly situated will be likewise so injured; that said Owen and Gillespie, as resident taxpayers of said city, will be greatly injured by a sale of said property, which will deprive them of the use thereof as a public park; that its use as aforesaid by the brick company will leave a large hole within the park lines for the accumulation of excrement and filth of all kinds, detrimental to the health and comfort of the citizens of the city, and tendered $2,468, the cost of the five acres threatened to be conveyed, and prayed: "First. That the court decree the deed from the said Owen to the city of Tulsa be reformed so that the same would limit the use of said property to park purposes, and that the clause fixing the future use (setting it out) be inserted in said deed. Second. That the court decree that the purchase of the five acres which the city is proposing to sell to the Tulsa Vitrified Brick Company to be ultra vires and void. Third. That the court decree that the defendants and their successors be perpetually enjoined from seling any part of said property, so long as same can be reasonably used for park purposes, and so long as same shall be necessary for park purposes, to the Tulsa Vitrified Brick Company and to any and all other persons whomsoever." To this petition defendant demurred on the ground of a "misjoinder" of parties plaintiff, a misjoinder of causes of action, and that it failed to state facts sufficient to constitute a cause of action, which the court sustained dissolved the temporary restraining order theretofore issued, and plaintiffs, electing to stand on their petition, bring the case here, and assign for error the sustaining of said demurrer. As the court sustained the demurrer generally and as misjoinder of parties is not a ground of demurrer under our statute (Stiles, Tres., v. City of Guthrie, 3 Okl. 26, 41 P. 383), we presume the court sustained it on one of the to remaining grounds. Had the court sustained it upon the ground of misjoinder of causes of action, it would have been the duty of the court to so state at the time in order to afford plaintiff's counsel an opportunity to move to be allowed to file separate petitions each to include such of said causes of action as might have been joined, and had them each docketed, pursuant to section 92 of chapter 66 of the Statutes of Oklahoma of 1893 (Code Civ. Proc.). Goldsborough v. Hewitt, 23 Okl. 66, 99 P. 907; Webster et al. v. Dillon, County Tres., 7 Okl. 568, 54 P. 894. As the court made no such indication and counsel were therefore afforded no such opportunity, it is but fair to presume that the court sustained the demurrer upon the third ground, which is that the petition fails to state facts sufficient to constitute a cause of action. The demurrer being general, if there is one paragraph in the petition which states a cause of action, the demurrer must be overruled. Stiles, Tres., v. Guthrie, supra, and cases cited.

Plaintiffs contend that the petition states facts sufficient to raise the question of whether a suit will lie at the instance of themselves as resident taxpayers of the defendant city to restrain it from selling a portion of its real property owned in fee simple without limitation and dedicated by it to a...