Rayor v. City of Cheyenne

• Decision Date: 25 February 1947
• Docket Number: 2350
• Citation: 63 Wyo. 72,178 P.2d 115
• Parties: BERNARD L. RAYOR, Plaintiff and Respondent, v. CITY OF CHEYENNE, a Municipal Corporation, and John J. McInerney, O. E. (Oc) Erickson, and A. W. Trout, as Commissioners of said City of Cheyenne, Defendants and Appellants
• Court: Wyoming Supreme Court

178 P.2d 115

63 Wyo. 72

BERNARD L. RAYOR, Plaintiff and Respondent, v. CITY OF CHEYENNE, a Municipal Corporation, and John J. McInerney, O. E. (Oc) Erickson, and A. W. Trout, as Commissioners of said City of Cheyenne, Defendants and Appellants

No. 2350

Supreme Court of Wyoming

February 25, 1947

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Action by Bernard L. Rayor against the city of Cheyenne and John J McInerney and others as commissioners of said city to enjoin city from constructing a highway through a city park. Judgment for plaintiff and defendants appeal.

Affirmed.

Judgment affirmed.

For the Defendants and Appellants, the cause was submitted upon the brief and also oral argument of John S. Miller of Cheyenne Wyoming.

POINTS OF COUNSEL FOR APPELLANTS

An averment that a party intends to do an act, or that a certain event will happen or is liable to happen, as that, if certain acts are continued, or if a contract is not specifically enforced, irreparable damage will follow, is a conclusion of law, unless the averment is a reasonable conclusion from the facts alleged. 49 C. J. 76.

The city of Cheyenne has sufficient authority to open and maintain the street in question, unless the prior use of its property as a public park stands in the way. The power of the city of Cheyenne to open, create and maintain streets is found in Section 22-1918 (2 6) Wyo. Rev. St. 1931, namely, to open, widen or otherwise improve any street, avenue, alley or lane within the limits of the city, and also to create, open and improve any new street, avenue, alley or lane.

A municipality which has dedicated to public use as a park property of which it is the owner in fee, may thereafter change the use of such property without infringing the rights of adjacent owners. School Dist. No. 2 of Johnson County v. Hart, 3 Wyo. 563, 27 P. 919.

It has often been decided that when lands are acquired by a governmental body in fee and dedicated by statute to park purposes, it is within the legislative power to change the use. Reichalderfer v. Quinn, 287 U.S. 315, 53 S.Ct 177, 77 L.Ed. 331, 83 A. L. R. 1429.

In Brooklyn Park Commissioners v. Armstrong, 45 N.Y. 234, it was expressly decided that the owners of land around a public park have no such right or interest therein as will entitle them to compensation, when a city, being the owner of the fee of the park, discontinues it under sanction of the Legislature. Keaton v. Oklahoma City, 187 Okla. 593, 102 P.2d 938.

Where a tract of land is donated to a city with a restriction upon its use--as, for instance, when it is donated or dedicated solely for a park--the city cannot legally divert the use of such property to purposes inconsistent with the terms of the grant. A less strict construction is adopted as to dedications made by the public. Slavich v. Hamilton, 201 Cal. 299, 257 P. 60. The case here is not one of the type first referred to, in which a donor transfers property to a municipality for a fixed and definite purpose defined in the grant, and where the rule of strict construction is to be applied. Acting under authority of its charter, and through the action of its legislative body, the city is only dedicating its own property to a different public use than that to which it has been heretofore subjected. Spinks v. City of Los Angeles, 220 Cal. 366, 31 P.2d 193.

Generally speaking, where a private party conveys land to a city for a definite public purpose it cannot be diverted to another and different purpose, at least so long as the conditions of the grant are in force. The main reason for the rule is that in such a case the title remains in the original owner subject to the specified public use. That a different rule applies where a city has acquired title in fee was pointed out in Slavich v. Hamilton, 201 Cal. 299, 257 P. 60, where the court said, "the uses to which park property may be devoted depend, to some extent, upon the manner of its acquisition, that is, whether dedicated by the donor, or purchased or condemned by the municipality. A different construction is placed upon dedications made by individuals, from those made by the public. The former are construed strictly according to the terms of the grant, while in the latter cases a less strict construction is adopted. Ritzman v. City of Los Angeles, 38 Cal.App. (2d) 470, 101 P.2d 541. City and County of San Francisco v. Lineres, 16 Cal.2d 441, 106 P.2d 369; McQuillan, Municipal Corporations, (Perm. Ed.) sec. 1257; 18 A. L. R. 1247; 83 A. L. R. 1435; 144 A. L. R. 488; 1 L. R. A. 725; 20 R. C. L. 652, Sec. 19; 26 C. J. S. 132, Sec. 49 and 26 C. J. S. 156, Sec. 65.

For the Plaintiff and Respondent, the cause was submitted upon the brief of Loomis and Lazear, and also oral argument of Clyde M. Watts and Edward T. Lazear, all of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

The limitation upon a city's right to change the use of land is predicated on either "lack of title" or "lack of power". If the city "lack title", that is, does not own the land in fee simple, or holds the land subject to some reversionary interest, or subject to defeasance, or subject to some definite limitations, then the city "lacks title", and cannot ignore the restriction.

In the many other cases where the courts discuss what can and what cannot be done with parks, when and under what conditions buildings may be erected in parks, highways opened up, swimming pools constructed, concessions granted, places of business permitted, abandonment or vacation allowed--in all these cases the one question considered is the "power" of the city to do the act complained of, and whether the proposed change is consistent or inconsistent with park use under the "power" of the city, as it then existed.

Municipal corporations possess the incidental and implied right to alienate or dispose of the property, real or personal, of the corporation, of a private nature, unless restrained by charter or statute; they cannot of course, dispose of property of a public nature, in violation of the trusts upon which it is held, and they cannot, except under valid legislative authority, dispose of the public squares, streets, or commons. Douglass v. City Council, (Ala) 24 So. 746.

It is elementary and fundamental that the power to lay out, open, widen, extend, vacate, or abandon public highways, public parks, park ways, or boulevards is legislative, pure and simple, to be exercised by the legislature itself, or by municipal boards to which it may be delegated. It is also elementary that a municipality, acting through its legislative body, has no power to enter into contracts which curtail or prohibit an exercise of its legislative or administrative authority over streets, highways, or public grounds, whenever the public good demands that it should act. State ex rel Townsend v. Board of Park Commissioners, (Minn.) 9 L. R. A. (Anno.) N. S. 1048, 1049.

As between the municipality and the general public, the legislative power is, in the absence of special constitutional restrictions, supreme, and so it is in all cases where there are no private rights involved. If the municipal corporation holds the full title to the grant for public uses, without restriction, the Legislature may doubtless direct and regulate the purposes for which the public may use it. In the absence of any restriction by contract or special restriction in the Constitution, the power of the Legislature over the use of public property--that is, its power to modify and regulate such uses--is undisputed, and, so far as the public or municipality is concerned, it is perhaps quite unlimited. The doctrine was early declared by this court that a municipal corporation may alienate or change the use and destination of public places with the consent and by the authorization of the sovereign power first obtained, whenever the public interest may require it. Seattle Land & Improvement Co. v. City of Seattle (Wash.) 79 P. 781. Fessler v. Town of Union, (N. J.), 56 A. Rep. 275, 276; Mowry v. City of Providence, (R. I.) 16 A. Rep. 511.

Though the city could not of itself alienate the land in contravention of the public right, it could do so if authorized by the Legislature. Clarke v. City of Providence, (R. I.) 15 A. 765.

Where a park had been created even by the dedication of it own lands, it may not dispose of or devote the land to other purposes. Municipal authorities have power to devote park property to uses which are proper park purposes or consistent with the purposes of its dedication; but it is generally held that they can not divert park property from park purposes or the purposes of its dedication. Bedford-Nugent Co., Inc. v. Argue (Ky.) 137 S.W. 2d. 392, 393, 394.

The general rule, in the absence of specific legislative authority, is that a municipality cannot divert parks to other uses inconsistent therewith. Riverside v. McLean (Ill.) 71 N.E. 308, 66 L. R. A. 294; 18 A. L. R. 1248.

The Legislature has no power to authorize the use of a public park, square, or common for a purpose inconsistent with the purposes for which it was dedicated. 63 A. L. R. 486; Hall v. Fairchild-Gilmore-Wilton Co., supra; State ex rel Johnston v. Manhattan (1924) 115 Kan. 794, 225 P. 85; Massey v. Bowling Green (1925) 206 Ky. 692, 268 S.W. 348.

BLUME, Justice. RINER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

The plaintiff, Bernard L. Rayor, brought this action to enjoin the City of Cheyenne, a municipal corporation from constructing a highway through a park of the City. He alleges that plaintiff is a property owner, taxpayer and a resident of the City of Cheyenne, owning property adjacent to Holliday Park, hereinafter mentioned, and brings this action on behalf of himself and all...