35 N.W.2d 606 | Minn. | 1949
Two questions are raised:
(1) Whether a city may authorize the major portion of a public square dedicated for public use to be converted into part of a high school athletic field and playground and used as such; and
(2) Whether taxpayers of the city and owners of property abutting on a public square so dedicated have the right to sue to enjoin an unlawful diversion thereof from the dedicated use.
On March 7, 1856, John W. North and his wife platted land owned by North as the then town of Northfield and in the plat dedicated "the streets and public square" shown thereon "for public use." The complaint alleges that the term "public square" as used in the dedication meant an ornamental square and a square to be used and enjoyed by the public generally, and that it did not mean a square or space to be used as a school athletic field or school playground.
Following the dedication, the public square was improved with shade trees, paths, seats, a fountain, and a bandstand. It has always been used as an open park for the use and enjoyment of the public generally, and it has come to be known locally as "Central Park." *461
Acting under L. 1937, c. 233 (M.S.A.
The city let a contract to the defendant Lawrence Tuma to do certain work for the consummation of the plan, and, unless they are enjoined, defendants will proceed therewith.
Some plaintiffs are owners of property abutting on the public square, and all are taxpayers of the city of Northfield.
1. The public's rights to the public square arose by virtue of dedication by a private owner of the public square for public use. While plaintiffs apparently rely on a statutory dedication, we are unable to determine from the facts alleged by them whether the dedication was a statutory or common-law one. For present purposes, it is sufficient to point out that a statutory dedication is one by plat executed and recorded as required by statute, and a common-law dedication is one otherwise made, as by dedication in fact or by a defective statutory one. Keiter v. Berge,
"* * * and the land intended to be for the streets, alleys, ways, commons or other public uses in any town or city or addition thereto, shall be held in the corporate name thereof,in trust to, and for the use and purposes set forth and expressed or intended." (Italics supplied.)
At an early date our law with respect to the effect of a statutory dedication was settled. In City of Winona v. Huff (1866)
"* * * It has been the uniform holding of this court that the dedication of land, pursuant to this statute, to the public for streets, alleys, and public grounds, does not pass the fee-simple title thereto, but only such an estate as the purpose of the trust requires, and that *463 the fee, subject to the public easement, remains in the dedicator and his grantees. * * * It follows that the fee to the tract in question never was in the municipality, but remained in the owner of the lots abutting thereon, subject to the public easement."
A common-law dedication operates as an estoppel and not as a grant, but the effect thereof is to create only such an estate or right in the public as is necessary to enable it to enjoy the uses for which the dedication is made and to reserve the fee to the dedicator. Schurmeier v. St. P. P. R. Co.
It is entirely inaccurate, therefore, to speak of the public square here involved as property belonging to the city of Northfield. Rather, it should be spoken of as the property of the dedicator or his successors in interest, in which the city, as trustee for the benefit of the public and not in its own right as such, has such an interest as is necessary to enjoy the use thereof as a public square.
2. A dedication of a public square for public use is one for special, qualified, and limited purposes as such. Board of Supervisors v. City of Winchester,
3. The ordinary and usual signification of a public square dedicated by a private person, as here, for public use is an open tract of land for use for purposes of free passage or of ornamentation and improvement as grounds of pleasure, amusement, recreation, or health. Village of Riverside v. MacLain,
In some cases like Westfall v. Hunt,
We need not now determine whether the fourth paragraph of the verified amended complaint, alleging that the term "public square" as used in the dedication meant an ornamental square and a square to be used and enjoyed by the public generally, and that it did not mean a square or space to be used as a school athletic field or playground, adds anything to what is implicit in the term itself; as such is a conclusion of law rather than an allegation of fact.
4. The defendant city, being a trustee for the benefit of the public of the public square, will be treated as one by holding it to the duties and the accountability of a trustee. Its duty is to devote the public square to the uses intended by the dedicator. Its accountability is for the discharge of that duty. Any use thereof by the city inconsistent with the uses intended by the dedicator constitutes a breach of trust and a violation of the statute imposing the trust in such cases. Annotations, 144 A.L.R. 488, 63 A.L.R. 485, and 18 A.L.R. 1247; 39 Am. Jur., Parks, Squares, and Playgrounds, § 21. The rule in this respect differs from what it is in *465
cases where the public authority acquired title to the fee, or acquired rights by exercise of the power of eminent domain, or was otherwise free from any trust. Spires v. City of Los Angeles,
5. Use of the public square for a high school athletic field and playground would be a public use, but one not only different in kind from use as a public square, but positively inconsistent therewith and destructive thereof and consequently unlawful. The authorities hold that it is a diversion from the uses intended by the dedicator, and consequently illegal, to use a public square for purposes either of a school (McCullough v. Board of Education,
If there can be any doubt as to whether use for school purposes differs from that for a public square, it should be set at rest by *466
§
Cases holding that the power to acquire and establish parks includes the power to acquire and establish golf courses (Booth v. City of Minneapolis,
6. Authorization of the changed use by the city council does not make it lawful. Use of property for purposes other than those for which it was dedicated cannot be authorized by ordinance (Durkin v. City of New York,
"As against the owner, neither an act of congress nor of the legislature, nor a city ordinance sanctioned by a vote of the electors, can subject the land to any additional servitude without compensation." *467
7. Plaintiff abutting owners have a right to maintain an action for the injunctive relief here sought. An abutting owner acquires as appurtenant to his property every easement, privilege, and advantage which the plat represents as belonging to the lots. The easements, servitudes, and uses shown thereon constitute part of the consideration for all conveyances made according to the plat. Consequently, an abutting owner may maintain an action in his own name to enforce the rights belonging to him as such in a public square shown on a plat which includes his property. Kray v. Muggli,
8. We do not deem it necessary to decide now whether plaintiff taxpayers also have a right to maintain this action. If plaintiff taxpayers have no right to maintain this action for the injunctive relief here sought, the consequence of their joinder would be simply a misjoinder of parties plaintiff. Such a misjoinder would not be fatal to the right of the plaintiff abutting owners to proceed. Where one or more plaintiffs have the right to maintain the action, misjoinder, if any, of other plaintiffs lacking such right is a mere irregularity which can be corrected at any time. Wiesner v. Young,
9. Since the facts establish plaintiff abutting owners' right and threatened violation thereof to their irreparable injury, a temporary injunction should have been issued as a matter of course, and it was a clear abuse of discretion to refuse to grant one. Flaten v. City of Moorhead, supra.
Reversed with directions to grant plaintiffs' motion for a temporary injunction.