Plaintiff appeals from a summary judgment for defendants 1 in an action filed by plaintiff in April, 1955, in his capacity as a resident, citizen and taxpayer of the city of Los Angeles, and as the owner of a contingent remainder interest in real property known as “Griffith Park.” Part of Griffith Park was granted to the city of Los Angeles by plaintiff’s parents for use as a public park only, and part of it was acquired by the city by purchase from the estate of such parents “for park and playground purposes.” Plaintiff by his complaint sought in his first cause of action to enjoin defendants from constructing a freeway through Griffith Park, and in his second cause of action asked declaratory relief. We have concluded that the trial court was correct in its determination that defendants’ motions for summary judgment should be granted, and that such judgment should be affirmed.
Following filing of plaintiff’s action, demurrers to the complaint were sustained without leave to amend, but the result
*850
ing judgment for defendants was reversed in
Griffith
v.
Department of Public Works
(1956),
The complaint alleges, among other things, that plaintiff is a resident and taxpayer of defendant city of Los Angeles and that he is the son of Griffith Jenkins Griffith and Mary Christiana Griffith, both now deceased, who conveyed certain lands to defendant city in trust to be used as a public park; that the conveyance was made upon the condition that the lands be used by defendant city and its successors in interest exclusively as a public park and provided that whenever the lands or any part thereof “shall cease to be used as a park . . . then the lands hereby conveyed shall immediately . . . revert to [the grantors] ... or their heirs”; that defendant city accepted the gift and dedicated the lands as a public park.
The complaint also alleges that defendant city purchased an additional adjoining 350 acres from the estate of plaintiff’s parents and that such additional land was also dedicated for park purposes; that the lands acquired by the city from plaintiff’s parents are known as Griffith Park.
The complaint then alleges that “the defendants all work *851 ing in conjunction with each other intend to and will unless restrained” divert a portion of the above mentioned lands from the dedicated use for use as a freeway; that the use of the park lands for a freeway “will violate the trust upon which said property is held by the City of Los Angeles.” The complaint also alleges that, under section 170 of the city charter (Stats. 1947, p. 3536), the park lands are under the management and control of the Board of Recreation and Park Commissioners of the city of Los Angeles and may not be used for non-park purposes without the authorization of that board ; that the board has objected to the proposed diversion of the park lands for use as a freeway and that the proposed diversion would therefore be in violation of the city charter and “an illegal waste of and injury to the property of the City of Los Angeles. ’ ’
As a second cause of action the complaint further alleges that “an actual controversy has arisen and now exists between the parties to this action concerning the right of defendants to construct a freeway [through Griffith Park] ... in that the defendants contend that they have a right to devote a portion of Griffith Park to a public freeway regardless [of the limitations contained in the deed from plaintiff's parents] . . . and . . . without the consent ... of the Board of Recreation and Park Commissioners of the City of Los Angeles, [whereas] the plaintiff contends [to the contrary] ...”
The prayer is for an injunction “restraining and enjoining the defendants, and each of them, from building and constructing the freeway upon the Griffith Park land, ’ ’ and that the court “find and determine that the land granted to the City of Los Angeles by [plaintiff’s parents] . . . may not be used as a public freeway and that other park lands may not be used for a freeway without the consent of the Board of Recreation and Park Commissioners of the City of Los Angeles.”
As indicated above, demurrers to the complaint were sustained without leave to amend but the ensuing judgment for defendants was reversed in
Griffith
v.
Department of Public Works
(1956),
supra,
Upon remand defendants answered and filed motions for summary judgment. Numerous affidavits were filed in support of and in opposition to the motions and in August, 1957, the trial court filed the following order: “The motions for summary judgment of [the State] defendants, . . . are granted.
“The motions for summary judgment of the [City] defendants . . . are granted as to the first [for injunction against construction of freeway] cause of action set forth in the complaint; and they are denied as to the second [for declaratory relief] cause of action if the plaintiff desires to and shall within fifteen (15) days file an amended and supplemental complaint for declaratory relief. If such amended and supplemental complaint be not filed on or before September 16, 1957, the said motions for summary judgment are granted as to the second cause of action.
“The reasons for the foregoing ruling are: It appears from the affidavits and the file in [the condemnation case], which is incorporated in the affidavits by reference, that the State [which is not a party in the instant action] has taken possession of all of the subject property, and has duly completed or partially completed thereon the freeway in question. . . . An injunction against erecting the freeway would now he useless and plaintiff makes no showing whatsoever as to any right to relief in this action as against the Board of Public Works or its officers or the other state officers named.
“As to the first cause of action, the affidavits do not show any basis to enjoin the State [sic, City] from the construction of the freeway on the subject property as it does not show that the City has the power to construct, or contemplates the construction of, a freeway. Insofar as the allegation that there is collusion between the State and the City to permit the State to construct the freeway is concerned, that is a matter that would not notv give any basis for an injunction, and the affidavits make it clear that the plaintiff does not have any cause of action for equitable relief other than a declaratory judgment.
“As the second cause of action is now framed, it is clear that it would he useless to make a declaration of rights in accordance with the present complaint and the prayer, inasmuch as the taking of the property and erection of the freeway hy the State is an accomplished fact. The affidavits and the *853 file [in the condemnation case] . . . make it clear, however, that there is an actual controversy existing between the plaintiff and the defendant City as to whether or not the taking of the property by the State resulted in a reversion . . . with the consequence that the plaintiff would be entitled to all sums awarded in the condemnation action for the taking. Also, the controversy as to whether or not the act of the City in not contesting the right of the State to take the property, that is, not forcing the State to prove before an actual taking that the use of the property for a highway was a more necessary public use than its use as a park,[ 2 ] resulted in a breach of the trust under which the City held the property, and a consequent reversion of the whole of the property ... or a reversion of that portion taken. ...
“The evidence before me shows that there is a real question whether or not the City has in good faith contested the right of the State to take, and that there is a real question involved as to the effect of the taking. ...” (Italics added.)
As above stated, plaintiff did not file an amended complaint, and judgment of dismissal was entered. The language of the order above quoted, coupled with the failure of the plaintiff to amend his complaint in the respects suggested by the court, present the pivotal issue on this appeal.
Defendants concede that it is the law of the ease herein that the complaint states a cause of action (see
Griffith
v.
Department of Public Works
(1956),
supra,
The same is true with respect to the plaintiff’s request for a declaration that the park lands may not be used for a freeway without the consent of the city Board of Recreation and Park Commissioners. The City defendants in their answer to the complaint admit that under the city charter they have no right to devote a portion of Griffith Park to freeway purposes without permission of the board, thus establishing that no controversy exists on this point; and the right of the state to condemn the lands for such purposes is determinable in the condemnation ease to which the state itself is, of course, a party. Thus no declaration is necessary in the present action as to whether the consent of the board is or is not required before the park lands may be used for a freeway.
Plaintiff urges, further, that in view of the court’s declaration in its above epitomized order that “The affidavits and the file [in the condemnation ease] make it clear . . . that there is an actual controversy existing between the plaintiff and the defendant City as to whether or not the taking of the property by the State resulted in a reversion of the property taken,” and that “These questions could not be litigated in the condemnation action, particularly as to whether or not there was a reversion as to all or part of the property taken,” plaintiff is entitled to a trial of such questions on the merits and the court was obliged to deny the motion for summary judgment. As already noted, however, plaintiff does not by his complaint request a determination of his reversionary rights, and the court in its order expressly invited plaintiff to file an amended and supplemental complaint for declaratory relief, thereby to clarify his claims and demands. It was only upon plaintiff’s failure to so amend within the 15-day period specified that the motion for summary judgment was granted *855 as to the declaratory relief aspects of the complaints. Plaintiff therefore, having elected not to articulate a claim as to his possible reversionary rights, the only issue open to him, is not in a position to complain.
For the reasons above stated the judgment is affirmed.
Gibson, C. J., Traynor, J., Spence, J., McComb, J., Peters, J., and Peek, J. pro tem., * concurred.
Appellant’s petition for a rehearing was denied December 2, 1959. Peek, J. pro tem.,* sat in place of White, J., who deemed himself disqualified.
Notes
There are two groups of defendants: (1) The Department of Public Works of the State of California, the Director of Public Works, and the members of the California Highway Commission; these defendants will for convenience be referred to as the State defendants. (2) The City of Los Angeles and the members of the city council, who will be referred to as the City defendants. The State of California was not named as a defendant.
Section 1240, subdivision 3, of the Code of Civil Procedure provides that property appropriated to a public use by a municipality may be condemned but “such property shall not be taken unless for a more necessary public use than that to which it has already been appropriated.”
Assigned by Chairman of Judicial Council.