The City of Wichita v. Clapp

• Decision Date: 07 January 1928
• Docket Number: 28,189
• Citation: 125 Kan. 100,263 P. 12
• Parties: THE CITY OF WICHITA, Appellant, v. L. W. CLAPP et al., as the Board of Park Commissioners of the City of Wichita, Appellees
• Court: Kansas Supreme Court

263 P. 12

125 Kan. 100

THE CITY OF WICHITA, Appellant, v. L. W. CLAPP et al., as the Board of Park Commissioners of the City of Wichita, Appellees

No. 28,189

Supreme Court of Kansas

January 7, 1928

Decided January, 1928

Appeal from Sedgwick district court, division No. 1; J. EVERETT ALEXANDER, judge.

Judgment modified and affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MUNICIPAL CORPORATIONS--Parks--Devotion of Portion to Use as Airport. The devotion of a reasonable portion of a public park to an airport (aviation field), for recreation and other attendant purposes comes within the proper and legitimate uses for which public parks are created.

2. SAME--Parks--Statutory Authority to Acquire and Use as Airports. Chapter 117 of the Laws of 1927 authorizes the board of park commissioners of cities of the first class having a population between 80,000 and 110,000 to acquire public parks within five miles of the corporate limits of such cities, a reasonable portion of which may be used for airports.

3. SAME--Parks--Statutory Authority to Acquire and Use as Airports. The provisions of R. S. 3-110 are sufficiently comprehensive to enable the governing body of cities to maintain airports or aviation fields which are located in public parks owned or controlled by such cities within five miles of the corporate limits thereof.

A. V Roberts, Vincent F. Hiebsch and Roger P. Almond, all of Wichita, for the appellant.

R. R. Vermilion, Earle W. Evans, Joseph G. Carey and W. F. Lilleston, all of Wichita, for the appellees.

OPINION

HOPKINS, J.:

The question presented here is whether a city of the first class with a population of around one hundred thousand may acquire and maintain an airport as part of a municipal park. Wichita is a city of the class described. The defendants constitute its board of park commissioners. On November 14, 1927, the park commissioners passed a resolution, which among other things stated:

"That it be and is hereby deemed and declared desirable and a public necessity to acquire title and possession for public park, public recreation, aviation and airport purposes for the use and benefit of the people of the city of Wichita (the following-described) lands located and situated in Sedgwick county, Kansas, outside of the corporate limits of the city of Wichita, and within less than five miles therefrom."

The petition alleged that the--

"Property thus sought and intended to be acquired by said park board is now and for a long time has been equipped and used for and as an airport which the inhabitants of said city do and will continue to visit in large numbers, particularly on Sundays and on various occasions of popular interest; that pleasure planes devoted to recreation, business planes devoted to commercial purposes and government planes carrying the United States mails, come and go daily to and from said airport and from and to other airports in distant cities and localities; that pleasure planes without charge and commercial planes for a fee carry passengers daily, make flights from the airport and return thereto for the recreation of the occupants. . . ."

The petition also alleged that thirty per cent of the ground would be used for other park purposes and seventy per cent for an aviation field; that there prevailed an actual controversy between the plaintiff and the park commissioners as to whether the acquisition of the property sought by the park board for the purposes set out was permissible and legal, under the provisions of a recently enacted statute which in part reads:

"The board of park commissioners of any city of the first class having a population of more than 80,000 and less than 110,000 shall have the power to acquire by purchase, gift, condemnation or otherwise, such lands as they may deem necessary for public parks outside of the corporate limits of the city and not to exceed five miles therefrom and to issue and sell, subject to the limitations of this act, general bonds of the city to pay therefor." (Laws of 1927, ch. 117.)

The specific question for consideration is whether park purposes may include an airport or landing field for airplanes. Under various authorities, the expression "park purposes" has been held to include a race track, a tourist camp, bridle trails, boating, bathing, refreshment and lunch stands, providing bathing suits, towels and rooms for bathers, dressing pavilion, waiting room for street cars, refreshment and shelter room for the public, grandstand, ball games, baseball diamond, race meets, tennis courts, croquet grounds, children's playgrounds, hotels, restaurants, museums, art galleries, zoological and botanical gardens, conservatories, and many other recreational and educational facilities. In Bailey v. City of Topeka, 97 Kan. 327, 330, 154 P. 1014, this court quoted approvingly from Dillon on Municipal Corporations, to the effect that:

"A park may be devoted to any use which tends to promote popular enjoyment and recreation." (Dillon, Municipal Corporations, 5th ed. § 1096, p. 1749.)

State, ex rel., v. Dodge City, 123 Kan. 316, 317, 318, 255 P. 387, involved the question whether a city park dedicated for general park purposes might be used for the operation of a tourist camp. This court said:

"It is contended that the operation and maintenance of the tourist camp is a commercial enterprise in which the city has no power to engage, and that the maintenance of the camp in the city park, is a diversion and misuse of the park--therefore, unauthorized and illegal. . . . Dodge City is a city of the second class. In the year 1900 certain tracts of land were deeded to it for general park purposes. The money necessary for the purchase of such land was raised by popular subscription except $ 500 which was contributed from the city treasury. Some money raised by popular subscription remaining, after the purchase had been made, was used in clearing the land, laying out a race track, etc. In 1917 an automobile camp was laid out in the park and in 1923, various conveniences for the benefit of the traveling public having been constructed, a charge was made for the use of the automobile grounds. In the summer of 1925 the city constructed fifteen one-room cottages for the convenience of the tourists, costing approximately $ 1,835. Another cottage (cook house) costing about $ 650 was constructed at the same time. . . . The city made a charge of thirty-five cents per day for camping privileges and a charge of one dollar per day for the use of a cottage. A small grocery store is operated in the park under the management of the park custodian, who is also a commissioned police officer. . . . All moneys received from the tourist camp are turned over to the park commissioner to be placed in the park funds for the maintenance of the camp; whatever is left, if any, being used for general upkeep of the camp. There was evidence that two private tourist camps, located just outside the city limits, could amply care for the tourist traffic. . . . This practice has grown until nearly every city of consequence has established a tourist camp, and in most cases as a part of the city park. It was natural that the cities should do this. . . . The original concept of a city park has by usage during the last twenty years broadened to include the maintenance of a tourist camp. . . . The tourist camp is part and parcel of the modern municipal park. Its maintenance as a part of the modern municipal park is not different in principle from maintenance of a swimming pool therein, about which there is no longer contention."

The supreme court of Michigan considered a somewhat similar question, and held substantially that where a pavilion was erected on a public park to serve the double purpose of a waiting room for street cars and refreshment and shelter room for the public using the park, the building being located at a proper and convenient place for both purposes, such building and use were not foreign to "public park" purposes. (Dodge v. North End Association, 189 Mich. 16, 155 N.W. 438.)

"The park board, having control over the city parks, may grant a privilege for a public stage route, stations and waiting rooms in a park, where the right to run stages is confined to their operation for the sole purpose of carrying visitors into or out of the park or from one portion thereof to another." (American Steel House Co. v. Willcox, 38 Misc. 571, 77 N.Y.S. 1010.)

"A city has power to grant a license or concession to hold, in said park, race meets, for short periods of time, for the entertainment of the public." (Nebraska City v. Nebraska City Speed & Fair Ass'n, 107 Neb. 576, 583, 186 N.W. 374.)

On the question of the power of the city to supply its citizens with libraries, museums and places for public recreation, see Commonwealth v. Horrigan, 84 Mass. 159; Laird v. Pittsburg, 205 Pa. 1, 54 A. 324; Lambert, Mayor, v. Bd. Trustees Public Library, etc., 151 Ky. 725, 152 S.W. 802. For establishment of municipal golf links, see Capen v. City of Portland, 112 Ore. 14, 228 P. 105.

"The devotion of a reasonable portion of a public park to tennis courts, croquet grounds, and children's playgrounds, with suitable appliances for these forms of public amusement and recreation, comes strictly within the proper and legitimate uses for which public parks are created." ( Caulfield v. Berwick, 27 Cal.App. 493, 150 P. 646, syl. P 2, 150 P. 646.)

In Spires v. City of Los Angeles, 150 Cal. 64, 87 P. 1026, it was said:

"As matter of public knowledge, we are aware that the erection of hotels, restaurants, museums, art galleries, zoological and botanical gardens, conservatories, and the like in public parks is common, and we are not pointed to any authority where it has been regarded as a...