Thomas v. Bullock County Com'n

• Decision Date: 02 August 1985
• Citation: 474 So.2d 1094
• Parties: Wilbon THOMAS, et al. v. BULLOCK COUNTY COMMISSION, et al. 83-676.
• Court: Alabama Supreme Court

Page 1094

474 So.2d 1094

Wilbon THOMAS, et al. v. BULLOCK COUNTY COMMISSION, et al.

83-676.

Supreme Court of Alabama.

Aug. 2, 1985.

Richard L. Osborne, York, for appellants.

Louis C. Rutland, Union Springs, for appellees.

BEATTY, Justice.

This is an appeal from a judgment for the defendants in plaintiffs' action for an injunction and damages. The cause was tried ore tenus without a jury. We reverse and remand.

The Department of Corrections of the State of Alabama conveyed by warranty deed 112.29 acres of land in Bullock County to defendant Bullock County Development Authority (Development Authority). This deed contained the following restriction:

"This conveyance is made by the grantor, the DEPARTMENT OF CORRECTIONS OF THE STATE OF ALABAMA, upon the express condition that the tract of land herein described shall be used by the grantee, the BULLOCK COUNTY DEVELOPMENT AUTHORITY, for the construction and development of a Recreation Park and the development of the balance of the property for industrial purposes and/or as the site of a proposed Veterans Administration Nursing Home or other purpose which would benefit the community as a whole. In the event the property is not used for the above-stated purposes or other purpose which would benefit the community as a whole, and is instead used for a private purpose, title in and to said property shall revert to the grantor, the DEPARTMENT OF CORRECTIONS OF THE STATE OF ALABAMA, its successors and assigns, for the same monetary consideration as stipulated in this conveyance."

The Development Authority applied to the Department of Conservation and Natural Resources for a grant of funds to develop a park. The Development Authority also employed a landscape architect to draw up plans for the park and had a survey made by the county engineer. The landscape architect and other consultants determined that 70.96 acres of the 112.9 acre tract was feasible for the development of a recreational park. The Development Authority then conveyed 70.96 acres of the tract by warranty deed to the Bullock County Commission (Commission). This conveyance also contained a restriction:

"This conveyance is made subject to the terms, conditions and restrictive covenants contained in that certain deed wherein Grantor herein acquired the subject property which said Deed is recorded in Deed Record Book SSS at Page 946, Probate Office, Bullock County, Alabama.

"It is also understood and agreed by and between the grantor and grantee, and grantee by acceptance of this deed does acknowledge that it fully understands the terms and conditions set forth herein and does further covenant and agree for itself, and its successors and assigns, forever as follows:

"1. The property has been acquired or developed with Federal financial assistance provided by the National Park Service of the Department of the Interior in accordance with the Land and Water Conservation Fund Act of 1965, as amended, 16 U.S.C. 4601-5 et seq. (1970 ed.). Pursuant to a requirement of that law, this property may not be converted to other than public outdoor recreation uses (whether by transfer, sale, or in any other manner) without the express written approval of the Secretary of the Interior. By law, the Secretary shall approve such conversion only if he finds it to be in accord with the then existing comprehensive statewide outdoor recreation plan and only upon such conditions as he deems necessary to assure the substitution of other recreation properties of at least equal fair market value and of reasonable equivalent usefulness and location."

The application to the State of Alabama, for the sum of $50,000, was approved; the Commission, by resolution, agreed to supply up to 50% of the funds needed to develop the park. Before any grant was awarded, however, the Commission and the Development Authority decided to reconvey the property to the Department of Corrections. Accordingly, the Commission reconveyed by warranty deed to the Development Authority the 70.96 acres previously deeded to it, without the restrictions, and the Development Authority in turn reconveyed by warranty deed containing no restrictions the 112.29 acres to the Department of Corrections. The deed from the Development Authority to the Department of Corrections was preceded by a resolution of the same date, January 23, 1984, containing the following language:

"BE IT RESOLVED by the BULLOCK COUNTY DEVELOPMENT AUTHORITY as follows:

"THAT WHEREAS, on the 14th day of September 1982, the Department of Corrections of the State of Alabama conveyed to the Bullock County Development Authority a certain parcel of real estate containing 112.29 acres, which property had been purchased by said Department of Corrections for use as a site for a State penal institution but which subsequently determined not to locate said penal institution on said site; and

"WHEREAS, the said Department of Corrections now desires to locate a penal institution on said site and has requested that the subject property be reconveyed to said Department of Corrections; and

"WHEREAS, the Bullock County Development Authority has determined that the location of a penal institution in Bullock County would be a valuable industry for the County and that the use of the property for this purpose would be its most beneficial use for the welfare of a majority of the citizens of Bullock County.

"NOW THEREFORE, be it Resolved by the Bullock County Development Authority that the Authority convey to the Department of Corrections of the State of Alabama that certain tract of land containing 112.29 acres more or less which was on September 14, 1982, conveyed to the Authority, the monetary consideration being the same as stipulated in the said conveyance of September 14, 1982. Be it further resolved that John Roberts, Chairman of the Bullock County Development Authority is hereby authorized and directed to execute said conveyance in the name of the Authority and Don Priori as Secretary of the Authority is duly authorized to attest the same."

However, the deed of the 70.96 acres from the Commission to the Development Authority was not preceded by a resolution of the Commission nor by a referendum election. Following the Commission's deed to the Development Authority, the Commission by resolution adopted February 13, 1984, "ratified and confirmed" the conveyance of the 70.96 acres to the Development Authority. Moreover, on February 13, 1984, the Commission by resolution authorized a referendum election, in conjunction with the presidential preference primary election to be held on March 13, 1984. This election was held on the following issue:

"Do you approve of the Bullock County Commission and the Bullock County Development Authority conveying to the Department of Corrections of the State of Alabama for the sum of One Dollar any and all interest they may have in 112.29 acres of land in the East Half of Section 31, Township 14, Range 24, for use as the site of a State Penal Institution?"

In that referendum, 2,486 "yes" ballots were cast and 1,189 "no" ballots were cast.

Meanwhile, on January 23, 1984, plaintiffs, citizens of Bullock County, instituted this suit to enjoin the Development Authority and the Commission from conveying any of the land previously conveyed for recreational purposes and to recover damages. By amendment to the complaint dated January 26, 1984, plaintiffs sought to have set aside any deeds between the Board of Corrections (added as a party), the Development Authority, and the Commission.

The trial court heard this ore tenus case without a jury and found that the deeds of the Commission and the Development Authority were valid conveyances, and that the Development Authority was authorized and empowered to reconvey the property to the Department of Corrections. In reaching this conclusion, the trial court made the following findings:

"The Court finds that the acceptance of the deed from the Department of Corrections by the Bullock County Development Authority dated September 14, 1982, did not constitute a dedication of the entire tract or a portion thereof exclusively for recreational purposes and that the actions of the Development Authority and the Bullock County Commission after the deed and after the property was accepted did not constitute a dedication of the 70.96 acres exclusively for recreational purposes.

"The Court finds that the acceptance of the deed by the Development Authority did restrict the use of the property so that the property could not be used for any private purpose; however, the conditions did not obligate the Development Authority to expend time and monies in developing the property in accordance with the stated purposes. The Development Authority had the right in exercising its discretion to reconvey the property to the Department of Corrections if it deemed the property should not be used for the stated purposes or if it deemed the property should be used for some other purpose which would be more beneficial to the community as a whole rather than the purpose as set out in the conditions in the deed.

"The Court further finds that Bullock County, in accepting the deed from the Bullock County Development Authority dated October 27, 1983, did not waive its right to abandon the recreational project if in its discretion it deemed some other purpose more beneficial to the community.

"The Court further finds that the actions of the County Commission and the Development Authority after the property was accepted, did not amount to a dedication of the property or a portion thereof for use solely for recreational purposes and did not estop the County Commission or the Development Authority from 'changing its mind' and abandoning the recreational project if in its discretion it deemed some other purpose more beneficial to the community as a whole, so long as the property was not used for a private purpose.

"The Court further finds that since the...