Rowzee v. Pierce

• Decision Date: 14 March 1898
• Citation: 23 So. 307,75 Miss. 846
• Court: Mississippi Supreme Court
• Parties: JOHN ROWZEE ET AL. v. E. C. PIERCE ET AL

23 So. 307

75 Miss. 846

JOHN ROWZEE ET AL. v. E. C. PIERCE ET AL

Supreme Court of Mississippi

March 14, 1898

March 1898

FROM the chancery court of Pontotoc county HON. BAXTER McFaRLAND Chancellor.

The opinion states the nature of the bill, the terms of the deed under which the land was held, and inferentially all the grounds of the demurrer.

Decree reversed and cause remanded.

J. D Fontaine, for appellants.

The court below ought to have allowed the amendment, as asked. The owner of the land, whether dedicated for the use of a highway or street, or square or common, retains his exclusive right in the soil for every purpose of use and profit not inconsistent with the public easement, and may maintain appropriate action for any encroachments upon it. 2 Dillon on Muni. Cor. [3d ed.], p. 632 [sec. 633, note 1, p. 632, and authorities cited].

The lots in this case were conveyed to the president and selectmen of the town of Pontotoc, and their successors in office, forever, only for public use as an ornamental park subject to such regulations as they may make for the purpose of fencing and ornamenting the same, and keeping the same in good order, and preventing nuisances or anything tending to subvert the object of the donors. This, together with all the other allegations of the bill, are admitted by the demurrer and motion to dissolve the injunction, which are for the same causes. The conveyance is identically the same with that in Daniel v. Jackoway, and is a continuing subsisting trust for a specific purpose, and ought to be carried out on the terms prescribed. The purpose must be pursued, and there must be no diversion. Daniel v. Jackoway, Freem. Chan. Rep., 59. See, also, Kilpatrick v. Greaves, 51 Miss. 432. But if it should be as set forth in the opinion of the chancellor, that the conveyance was a conveyance direct to the municipality, it does not change the status--a municipality is but the trustee for the inhabitants for the use designated. Le Clercq v. Trustees Gallipolis, 28 Am. Dec., 651. A city cannot run streets through parks [ Price v. Thompson, 48 Mo. 361], or erect buildings therein [ Rutherford v. Taylor, 38 Mo. 315], or divert a square for uses foreign to the dedication [ Warren v. Mayor of Lyons City, 32 Iowa 351]. And the erection of a private building upon land reserved [dedicated] for a public square, and which has been illegally sold by the public authorities, is a nuisance of such irreparable nature as to give a court of equity jurisdiction to grant a perpetual injunction. 2 Story's Eq. Jur. [10th ed.], sec 927; The Commonwealth v. Bush, 14 Penn. St., 186, which case is cited and approved in Briel v. City of Natchez, 48 Miss. 423. And where property is once dedicated for public use, a municipal corporation, or other trustee for the public, cannot extinguish such public use nor alien the land. 2 Dillon on Munic. Corps. [3d ed.], 674, sec. 50, note 1, and authorities cited; 5 Am. & Eng. Enc. L., 418, sec. 6, note 2, and authorities cited, where lots were dedicated to school purposes, and on which to erect schoolhouses, is inalienable by incorporate place where it lies, so as to extinguish the use without the consent of the dedicator, although rendered unsuitable for schoolhouses. Board v. Edson, 18 Ohio St., 221. The dedication of the lots in this case is for a specific purpose--"only for the public use as an ornamental park." The building of a schoolhouse thereon is a diversion, and is putting the lots to a use other than that authorized by the terms of the dedication. Where property dedicated is put to a use other than that authorized by the terms of the dedication, then the dedicator, or any lot holder of the city, may proceed in equity to enforce the proper use and inhibit an improper one. LeClercq v. Trustees of Gallipolis, 28 Am. Dec., 641; Cater v. City of Portland, 4 Ore., 339; 5 Am. & Eng. Enc. L., 418, note 1, and authorities cited; 2 Dillon on Munic. Corps. [3d ed.], sec. 653, and authorities in note 1; note to State v. Trask, 27 Am. Dec., 569. And, again, an individual may join with the municipality to prevent the erection of buildings on land dedicated to a public use. Trustees of Watertown v. Cowan, 27 Am. Dec., 81; Maywood Co. v. Village of Maywood, 6 N. E. Rep. [Ill.], 866.

The suit was therefore properly brought in the name of complainants, resident citizens and lot owners within the corporate limits of the town of Pontotoc, beneficiaries under the dedication, to enforce the trust, and prevent the trustees thereof from violating the trust which they had accepted. It was not necessary, as is contended, that the proceeding should be by indictment at law or by information in equity, at the suit of the attorney-general or the state. Whitfield v. Rogers, 26 Miss. 84. And while it is true that hind dedicated may be devoted to such uses as are consistent with, or necessary to, the principal use [5 Am. & Eng. Enc. L., 417, sec. 7, note 4, and authorities cited], the erection of a schoolhouse upon land dedicated for "an ornamental park, " is not; a use consistent with, or necessary to, the principal use.

The nonuser of property dedicated, even for years, by the public, is no abandonment. To deprive the public of it, there must be such open, notorious and continued individual use of the property as to give notice of adverse occupation and use. Briel v. City of Natchez, 48 Miss. 423. But there can be no adverse possession. These lots were dedicated for a specific purpose, in trust for the public. Vicksburg v. Marshall, 59 Miss. 570, 571; Price v. Plainfield, 40 N.J.L. 608. The doctrine of cy pres has been utterly rejected by a great majority of the states; a few have accepted it in a modified and partial form. 2 Pomeroy's Eq. [2d ed.], sec. 1027; 3 Am. & Eng. Enc. L., 133, sec. 10. The doctrine cannot be applied here; it is a rule of construction applicable to a will [not a deed], to ascertain intention. Bouvier's Law Dic., 418; Wharton's Law Dic., 238. But if the doctrine is applicable to deeds, it cannot be invoked in this case, because the intention to dedicate the lots for the specific purpose of an "ornamental park" is perfectly clear, and any rule that would fail to carry out such intention, would defeat the law. 2 Perry on Trusts [3d ed.], sec. 727. And where the gift is for a particular purpose only, the court cannot, by instruction, cy pres the original purpose. 2 Perry on Trusts [3d ed.], sec. 726. The lots were accepted in accordance with the terms of the deed dedicating them, and for the specific purpose only, and an abandonment of the dedication cannot be set up; the lots claimed and appropriated to another and different purpose, would be in palpable and direct violation of the contract. The appellees are estopped.

Blair & Anderson, for the appellees.

Among the authorities cited by Dillon in his work on municipal corporations there cannot be found a case in which any court has held that one or more inhabitants or taxpayers can maintain a bill to enjoin a breach of trust, on the part of corporate authorities, without alleging and proving that such breach will cause some special or direct injury to the parties complaining, over and above that suffered by the general public.

In the case of City of Chicago v. Union Building Asso., 102 Ill. 379, the court will find this doctrine ably and fully discussed. The distinction is there clearly made between a suit of this character by a taxpayer who suffers a direct injury and one who is injured only with the general public. In that case, the court says: "In no case has it ever been held that a private individual may maintain a bill to enjoin a breach of public trust without showing that he will be specially injured thereby, " and cites Bispham's Principles of Equity [2d ed.], 512, and many other authorities. We ask the court's attention to that case. See, also, Fritz v. Hobson, 19 Am. Law Reg. [new series], 624-637; Reynolds v. Commissioners of Stark County, 5 Ohio, 204; Smith v. Houston, 6 Ohio, 101 ; Parody v. School District, 15 Neb., 514.

Why should not the same principles apply in cases of this character that apply in public nuisances? Our court has decided, in Green v. Lake, 54 Miss. 540, that to enjoin a public nuisance the public authorities must move. A private action, either at law or in equity, will not lie, unless the plaintiff has sustained special damages.

It is contended by the opposing counsel that the contributors of the purchase money, who, by amendment, were sought to be made parties complainant, have such an interest in this matter that they can maintain the suit. In the first place, the making of new parties is a matter in the discretion of the court, which, when exercised, will not be set aside on appeal, ordinarily. In the next place, what interest, we ask have the contributors of the purchase money of these lots in this suit over and above what the general public has? If the deed contained a condition subsequent [and we do not think it does], the only interest the contributors of the purchase money would have in it would be to make an entry and claim it on breach of condition. See case of Railroad Co. v. Neighbors, 51 Miss. 412. That is a case where certain lands were deeded to the railroad company, "to have and to hold, with all appurtenances, for the only proper use of said railroad company for construction of warehouses, machine shops, " etc., and the railroad company, among other things, built a hotel on said property. The heirs of the grantor filed a bill to enforce a forfeiture, alleging a breach of condition subsequent. The court held the deed contained no condition subsequent, and also that where a deed is made with conditions subsequent, all that remains in the grantor is the possibility of reverter...