Price v. Thompson

• Decision Date: 31 August 1871
• Citation: 48 Mo. 361
• Parties: T. D. PRICE et al., Respondents, v. R. O. THOMPSON et al., Appellants.
• Court: Missouri Supreme Court

48 Mo. 361

T. D. PRICE et al., Respondents,

v.R. O. THOMPSON et al., Appellants.

Supreme Court of Missouri.

August Term, 1871.

Appeal from Linn County Common Pleas Court.

On the 27th day of May, 1869, appellants, as trustees of the town of Brookfield, passed an order extending Main street through a piece of ground which had been set apart on the plat of said town by the donor as a park, and also ordering that part of said park on either side of said street, after the same had been opened, to be fenced. After said order was made, this proceeding was commenced by respondents, inhabitants and property-holders in said town, in the Linn County Court of Common Pleas, against the appellants, as trustees of said town, to enjoin and restrain them from opening and extending said street through said park.

G. D. Burgess, for appellants.

The park being dedicated to the public by the party who laid out the town of Brookfield, the trustees had the right and power to open the street through it. It is unlike the taking of private property for public uses. In such cases compensation is required; but in cases like this, when public property is appropriated to public uses, no compensation is required. The Legislature of the State has the power to appropriate the park to any public use, and its power has been delegated to the town authorities by the act of March 2, 1869. This park being public property--it makes no difference how acquired, whether by gift, grant, or by the exercise of the right of eminent domain--the town authorities had the right to change one kind of its public use into that of another, so long as the property continued to be devoted to public use. (The People v. Kerr, 27 N. Y. 192-3, and authorities cited; Freeholders of Monmouth County v. Red Bank and Holmdel Turnpike Co., 3 C. E. Green, N. J., 91; 7 Am. Law Reg., N. S., 759; Ang. Highw., §§ 84-5; Radcliff's Ex'r v. Mayor of Brooklyn, 4 Comst. 195.)

This case is unlike that of Rutherford et al. v. Taylor et al., 38 Mo. 317. In that case the County Court had sold, or was about to sell, public lots to private individuals who purchased them for the purpose of erecting business houses, etc., thereon. It is not contended that the town authorities of Brookfield have the power to sell or dispose of the park for any purpose, but simply that they had the power under the act of the General Assembly of March 2, 1869, as a police regulation, to open a street through it, and that it was no misappropriation thereof as long as it was used for the public. (The People v. Kerr, 27 N. Y. 192-3.)H. Lander, for respondents.

The act of March, 1869 (Wagn. Stat. 1315-16, § 7), only contemplates cases where compensation can be made--that is, the taking of private property for public uses--and not the taking of public property for some other public purpose.

The town authorities had no constitutional power to unfix that which the original donor had already “named, expressed, or intended” by the terms of his grant. (Warner v. Mayor of Lyons City, 22 Iowa, 355, and cases cited; Rutherford v. Taylor, 38 Mo. 315.) The People v. Kerr, 27 N. Y. 192-3, is not like this case. The street in that case was acquired by the exercise of the right of eminent domain, and not by way of a dedication to a particular public use. So far as the rights of the private plaintiffs were involved in The People v. Kerr, the doctrine of that case is in direct conflict with the decision of our own court in Lackland v. North Mo. R.R. Co., 31 Mo. 180.

WAGNER, Judge, delivered the opinion of the court.

This is a petition for injunction. Plaintiffs state that the original owner of the land on which the town of Brookfield is situated, laid off and recorded a plat thereof, and particularly set forth, marked and designated thereon four acres of land as a “park;” that the fee to said park, by virtue of said plat, was vested in the town, in trust for the free use of all the inhabitants of the town as a common or public ground, and for no other purpose whatever; that the town inclosed the same with a good fence, gates, etc., and embellished the ground with trees, grasses and shrubbery for the purpose of a park; that the same has been and still is used for a park and for no other purpose; that plaintiffs have property with valuable improvements thereon now adjoining to and fronting on said park, which they purchased and improved upon the faith that the park was then and ever would remain a public park; that the defendants, in their capacity of trustees of the said town, were about to open the park, destroy the fencing, grasses and trees, and cause public streets to be run through the same, to the great damage of the plaintiffs. The defendants in their answer admitted the material statements charged in the bill, but by way of...