Vermillion, City Of, v. Hugener

• Decision Date: 06 August 1953
• Docket Number: No. 9357-,9357-
• Citation: 75 S.D. 106,59 N.W.2d 732
• Parties: CITY OF VERMILLION v. HUGENER. a.
• Court: South Dakota Supreme Court

Page 732

59 N.W.2d 732

75 S.D. 106

CITY OF VERMILLION v. HUGENER.

No. 9357-a.

Supreme Court of South Dakota.

Aug. 6, 1953.

Everett A. Bogue, Vermillion, for plaintiff and respondent.

Henry C. Mundt and Acie W. Matthews, Sioux Falls, Norman Jaquith, Vermillion, for defendant and appellant.

ROBERTS, Presiding Judge.

September 28, 1936, the City Council of Vermillion adopted a motion directing the mayor and city auditor to enter into a contract with Anton Hugener 'for the renting of 50 acres of land at the price of $9 per acre for a period of 10 years with an option to lease it for an additional 5 years or to purchase at the price of $150 per acre and also an option to lease the additional 30 acres or purchase at the price of $150 per acre and to lease the entire 80 acres at $8 per acre.'

September 29, 1936, the mayor and auditor entered into contracts with the owner of the said land under the terms set forth in the motion. The city according to a recital in the agreements intended to use the land for 'a municipal golf course and for city park purposes'. The city sought to finance the project in part through the Public Works Administration, but this agency insisted on a purchase of the land or a lease for a term of ninety-nine years. October 16, 1936, the city and defendant owner executed two separate instruments, a lease and an option to cancel the lease. The term of this lease was ninety-nine years from March 1, 1937, and the city was given the option to purchase the eighty acre tract at any time during the term of the lease at $150 per acre. The parties in the second instrument contemporaneously executed agreed that either party after the expiration of fifteen years could give written notice of canceling the lease, provided that in the event the owner exercised the option to cancel the city would have the right to purchase the leased premises within three months after the giving of notice. October 23, 1936, the city council adopted a motion to the effect that the city 'accept' the lease.

An ordinance of the City of Vermillion, dated April 16, 1951, contained recitals to the effect that the city exercised its option to purchase and directed the tender of the purchase price with demand for abstract showing marketable title and a warranty deed conveying the premises to the city.

Defendant as a defense to this action for specific performance alleges that the city acted beyond its power and had no authority to enter into a contract for the purchase of the premises in question; that a lease for ninety-nine years is for an unreasonable length of time and void; that the City of Vermillion did not by proper ordinance or resolution authorize the leasing of the premises with the option to purchase; and that fraudulent representations made by the city attorney in the negotiations with defendant for the lease and option defeat specific performance.

Subdivision 10 of Section 6169, Rev.Code 1919, empowered a municipal corporation to acquire and manage parks within or without its corporate limits. These provisions in substance were incorporated into the South Dakota Code of 1939 as Section 45.0201(98). Defendant contends that because these provisions did not specifically include power to establish a golf course the city had no legal right to acquire land for that purpose. This court construing this statute has defined the word 'park' as meaning a pleasure ground set apart for the recreation of the public, to promote its health and enjoyment. Le-Fevre v. Board of Commissioners of Brookings, 65 S.D. 190, 272 N.W. 795. We pointed out that the term has been held in other jurisdictions to include a public golf course. Booth v. City of Minneapolis, 163 Minn. 223, 203 N.W. 625; Golf View Realty Co. v. Sioux City, 222 Iowa 433, 269 N.W. 451; City of New Castle v. Lawrence County, 353 Pa. 175, 44 A.2d 589. A statute subsequently enacted grants to municipalities power to establish and maintain golf courses as a part of a park system. Chapter 206, Laws 1941. The purpose of this enactment may have been to remove any doubt as to the authority of a municipality to acquire and maintain a golf course. It need not be implied that such authority was not included within the provisions of the statute referred to. It follows that the City of Vermillion had authority to acquire by lease or purchase land for a golf course.

SDC 38.0403 declares that no lease or grant reserving rent or services either 'of agricultural land for a longer period than ten years' or 'of any town or city lot for a longer period than ninety-nine years' is valid. Defendant does not contend that the tenancy was within the restriction which is directed at the leasing of agricultural land. It is clear that the eighty acre tract was not leased or intended to be used as agricultural land but was leased solely for a golf course and park purposes. See Ryan v. Sioux Gun Club, 68 S.D. 345, 2 N.W.2d 681. The other provisions apply only to land within the limits of a municipality and furthermore the term of the lease in the instant case was not longer than the specified...