161 Ind. 319 | Ind. | 1903
— The appellants/ who are described as residents and taxpayers of the city of Valparaiso, brought this suit to enjoin a threatened sale and transfer by said city of a right to purchase a system of water-worts owned by a private company, and constructed and used in the streets, alleys, and public grounds of said city, reserved to and held by said city in and Under a contract between said city and George P. Smith and others made February 16, 1885. The part of said contract which is material
A demurrer to the answer was overruled, and this decision is assigned for error.
The question presented is whether the city has the power to sell and transfer its right to purchase said water-works, so reserved in the ordinance.
It is contended by counsel for appellees that such reserved right is held in trust by the city for public purposes in the same manner and subject to the same restrictions upon the power of the city to sell and convey it as the water-works themselves would be held if owned and operated by the city. Lake County Water & Light Co. v. Walsh,
There is, in out opinion, an obvious legal distinction between a right of a city to purchase property for a public use, and the ownership of property actually dedicated to and employed for public purposes. It is not the fact that property may be devoted to public use by the city at some future day which constitutes the city a trustee for that use, but it is the circumstance that the property is actually so used. The city of Valparaiso is not the owner of the water-works, and may never acquire the title thereto, either because it has not the means with which to purchase the works, or for the reason that such purchase may not be deemed expedient. The property is now held by á private corporation, and will continue to bo so held unless the city shall become financially able to buy it, and its acquisition shall be decided to be for the advantage of the city: If the city remains unable to purchase for lack of funds, or if it shall not be thought desirable to exercise the right of purchase, the service to the public rendered by the Valparaiso City Water-Works will continue to be of the same nature, extent, and efficacy, and upon the same terms, whether the city retains its right to purchase the works, or.disposes of that right by a sale and transfer.
In City of Ft. Wayne v. Lake Shore, etc., R. Co., 132 Ind. 558, 18 L. R. A. 367, 32 Am. St. 277, this court held that land purchased by the city of Et. Wayne for the purposes of a public park, but never dedicated to such use, might be sold by the city under its general power to sell and convey property, real and personal, owned by it as a municipal corporation, although it could not do so if the land had been applied to the purposes for which it was bought, and was so used. We think this principle applies to the present case. As the right to purchase has
Judgment affirmed.
Gillett, J., did not participate in this decision.