Seltenreich v. Town of Fairbanks, 6926.

• Citation: 103 F. Supp. 319
• Decision Date: 04 March 1952
• Docket Number: No. 6926.,6926.
• Parties: SELTENREICH et al. v. TOWN OF FAIRBANKS et al.
• Court: U.S. District Court — District of Alaska

103 F. Supp. 319

SELTENREICH et al. v. TOWN OF FAIRBANKS et al.

No. 6926.

United States District Court. D. Alaska, Fourth Judicial Division. Fairbanks.

March 4, 1952.

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Robert A. Parrish and George B. McNabb, Jr., of Fairbanks, Alaska, for plaintiffs.

Julien A. Hurley and Mike Stepovich, Jr., of Fairbanks, Alaska, for defendant.

Maurice T. Johnson, of Fairbanks, Alaska, for intervenor.

PRATT, District Judge.

This cause came on for hearing on plaintiffs' motion filed herein on the 12th day of October, 1951, for a temporary injunction restraining the Town of Fairbanks, Alaska, from abandoning the business of conducting a municipal airport.

The plaintiffs allege that the land included within said municipal airport, which is generally known as "Weeks Field," had been dedicated to the use of the public as an airport and devoted to such use for many years, as shown by the exhibits.

The defendant and intervenor maintain that said airport has never been dedicated to a public use or devoted thereto; that the Federal Government has completed an international airport two miles from the Town of Fairbanks which is available to plaintiffs; that the town is losing money in operating said airport and can not afford to do so; that plaintiffs are indebted to defendant, for airport services, as follows, to wit:

                Northern Consolidated Airlines        $5,500
                Fairbanks Air Service                    565
                Alaska Flying School                     480
                                                     _______
                     Total                            $6,545
                

The motion was argued and submitted upon plaintiffs' amended complaint, defendant's answer, intervenor's answer, and the affidavits of L. F. Joy, James C. Ryan, and E. A. Tonseth.

Briefs were submitted by counsel for all parties.

Wherever "exhibits" are herein mentioned, the reference will be to the exhibits attached to plaintiffs' amended complaint, unless the contrary is specifically stated; "SLA" will be used to designate the Session Laws of Alaska; the Town of Fairbanks, Alaska, will be referred to as the "town" or the "city"; "A.J." will mean American Jurisprudence; and "McQuillin" will mean McQuillin on Municipal Corporations, 3rd Edition.

Sec. I.

Dedication to Public Use

(a) The following quotations are from volume 11 of McQuillin:

"Accordingly a dedication of land is generally defined as its devotion to a public use by an unequivocal act of the owner of the fee, manifesting an intention that it shall be accepted and used presently or in the future. The intention of the owner to dedicate and acceptance thereof by the public are the essential elements of a complete dedication." § 33.02, pages 579-580.

"In other words, the mere fact that private property is used by the public is not necessarily inconsistent with the absence of an intent to dedicate it to the public * *. If the user by the public does not exclude the owner's private rights, such user will ordinarily be regarded as merely permissive." Pages 660-662.

"The intent of the dedicator is the foundation and life of all dedications, and the intent must be clearly and unequivocally manifested." Page 669, § 33.36.

"The burden of proof to establish a dedication is on the party asserting it. Dedication is not presumed nor does a presumption of an intent to dedicate arise unless it is clearly shown by the owner's acts and declarations, or by a line of conduct the only reasonable explanation of which is that a dedication was intended." Pages 671-672.

"It is variously stated that the evidence to establish a dedication must be clear and conclusive; must be clear and convincing; must be clear and unequivocal; must tend to substantiate a clear intention to dedicate, or must be strict, cogent and convincing." Page 674.

"* * * it is elementary that an acceptance, either by public user or formal act, is necessary * * *. Accordingly, the general rule is that to complete a common-law dedication, acceptance is required." Pages 682-685, § 33.43.

"The general rule is that proof of acceptance by the public must be unequivocal, clear and satisfactory, and inconsistent with any other construction." Pages 727 and 728, § 33.54.

The following quotations are from 16 A.J.:

"Dedication is the intentional appropriation of land by the owner to some public use." 16 A.J., page 348, § 2.

"In all cases, the burden of proof is on the party asserting a dedication." Page 417, § 75.

"* * * The essence of a dedication to public uses is that it shall be for the use of the public at large * * * and if from the nature of the user it must be confined to a few individuals, such as the use of land for piling wood, the idea of dedication is negatived * * * and a grant by the owner of a private right of way over his land to buyers of different parcels of the same to furnish them with convenient access to the street is no dedication to public use." Page 359, § 15.

"The intention of the owner to set apart lands or property for the use of the public is the foundation and life of every dedication. * * * This intention is essential whether an express or an implied dedication is relied on. * * * In order to constitute a dedication by parol, there must be some acts proved evincing a clear intention to dedicate the property to public use. In any case the intention must clearly appear, and the acts and declarations of the owner relied on to establish it must be convincing and unequivocal * * *. Likewise, the intention must be to make a perpetual dedication." Pages 361-362, § 17.

Proprietary Use

(b) The following quotations are from 37 A.J.:

"Every municipal corporation has a two-fold character, * * * one is political, governmental, legislative, or public, while the other is variously designated as private, proprietary, municipal, or ministerial * *. In its governmental or public character, the corporation is made, by the state, one of its instruments * * *. But in its proprietary or private character, the theory is that the powers are supposed not to be conferred primarily * * * from considerations connected with the government of the state at large, but for the private advantage of the compact community which is incorporated * * *; and as to such powers * * * the corporation is frequently regarded as having the rights and obligations of a private, rather than those of a public, corporation. * * * The distinction between acts in the performance of a governmental function and those in * * * a proprietary function is that in the case of the former, the municipal corporation is executing the legislative mandate with respect to a public duty generally, while in the other, it is exercising its private rights as a corporate body * * * even though the public may derive a common benefit therefrom. * * * All functions of a municipal corporation not governmental are said to be municipal." Page 727, § 114; City of Walla Walla v. Walla Walla Water Company, 172 U.S. 1, 19 S.Ct. 77, 43 L.Ed. 341; Linne v. Bredes, 43 Wash. 540, 86 P. 858, 6 L.R.A.,N.S., 707.

In Seafeldt v. Port of Astoria, 141 Or. 418, 16 P.2d 943, it is stated as set forth in the syllabus:

"Term `governmental functions' should be limited to duties imposed by state on municipal corporation, which latter must perform at peril, and other functions of municipal corporation are strictly `municipal.'

"Property held by municipal corporation in proprietary capacity ordinarily may be alienated without consent of Legislature."

In Arkansas Valley Compress & Warehouse Co. v. Morgan et al., 217 Ark. 161, 229 S.W.2d 133, at page 134 it is held as stated in the syllabus:

"A city entering into contracts involving, not government of its citizens, but only convenience, pleasure and profit of city and its people, acts in `proprietary capacity'. * * *

"Powers granted municipality for private advantages must be regarded as exercised by municipality as private corporation, though public may also derive benefit therefrom. * * *

"A municipal corporation, in its purely business, as distinguished from governmental, relations, is governed by same rules and held to same standard of just dealing prescribed by law for private individuals or corporations and is clothed with same full measure of authority over its property."

In City of Hazard v. Duff, 287 Ky. 427, 154 S.W.2d 28, at page 29(8), it is stated: "* * * but the courts in general, and those of this state in particular, are committed to the rule that a municipality engaged in maintaining and operating a waterworks does so in the exercise of a proprietary or private character as distinguished from a governmental character."

In Dix et al. v. Port of Port Orford et al., 131 Or. 157, 282 P. 109, at page 110(2-4), it is stated: "As a general rule, the power of a municipality to convey property is equal to its power to acquire it. At common law a municipal corporation, unless restrained by its charter, could dispose of property in the same manner as private individuals. 19 R.C.L. 772. In the instant case, we do not think that the property acquired through purchase was dedicated to a public use. True, it inured to the benefit of the public, but the port was engaged in this commercial enterprise for profit as a toll was charged any shipper who used the wharf or docking facilities. It was not open to indiscriminate use by the public. In the maintenance and operation of this property, the port was acting in a proprietary capacity. * * * It held title to property which had been acquired for strictly corporate uses. * * * It is not a case of holding title to property in trust where there has been a dedication to a public use. * * * In our opinion the lower court erred in concluding that the port was exercising a governmental function in the maintenance and operation of this dock and wharf."

"In operating a public utility in a private or proprietary capacity, the municipality possesses the same rights and powers with reference...