Hurd v. Board of Commissioners

40 Kan. 92 | Kan. | 1888

Opinion by

Holt, C.:

After the plaintiff board of county commissioners had submitted all its evidence, showing the facts ¡to be substantially as set forth in the statement, the defendants ¡demurred to the evidence because no cause of action bad been proven. The demurrer was overruled. It is claimed in this court that plaintiff had no legal or equitable estate, and was (not entitled to the possession of the land. This objection was not brought specifically to the attention of the trial court, >and for that reason the plaintiff claims that it should not be considered here. It was embraced and properly raised in the demurrer to the evidence. It is fundamental that a plaintiff, ’before he can recover in an action of ejectment, must prove that he has a legal or equitable estate, and is entitled to the possession of the land in controversy. It he fails to establish these facts, he fails in his action.

We have given the question whether this block was properly dedicated, a careful examination. Without discussing the matter or giving our reasons, we will say that we conclude that the court held correctly in finding that Floyd’s plat filed in the office of the register of deeds of Sedgwick county was a sufficient dedication of this land to make it a public park.

The other question now remaining is, whether the plaintiff could bring this action. Does Harvey county have a legal or equitable estate in this park, and is it entitled to the possession of the same? Section 6, chapter 78, Compiled Laws of 1879, provides;

“Such maps and plats of such cities and towns and additions, made, acknowledged, certified, filed and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended for public uses in the count) in which such city or town or addition is situate, in trust md for the uses therein named, expressed, or intended, and for no other use or purpose.”

This places the legal title m the county. The action of ejectment is a possessory one, and before recovery can be had it must be established that the plaintiff was entitled to the possession of the land in.controversy. Is the county of Harvey entitled to the possession of this tract because it held the legal title thereto ? Ordinarily all parcels of ground dedicated to public use m this state are placed under the control and in possession of the cities in which they are situated, by express , provision of the statute. It is provided in chapter 19a, Comp. Laws of 1885, that a city has control of the streets, avenues, alleys, market-places aud houses, watercourses, levees, depots and depot grounds, places for storing freight and goods, etc.; but there is no specific mention of parks. It is contended that because the county has the title to the land, that its control and possession would naturally follow such title. The county has the fee of the land as a naked trust. In the words of the statute, “for the uses therein named, expressed or intended, and for no other use or purpose/' chapter 19a, supra, gives cities of the third class control of all other lands dedicated to the public use excepting only parks. Chapter 19a, referring to sidewalks, etc., says “The council may prohibit and prevent all encroachments into aud upon the sidewalks, streets, avenues, alleys, aud other property of the city/ The city gets no greater estate by dedication in sidewalks, streets, avenues and alleys than in parks. The naked legal title of all of them is in the county, and they are all set apart for public uses. It is not held that the use of the word “ other” in this connection would make a park the property of the city, but it is worth something to show that it is the policy of the law, and so regarded generally, to give to cities the control of grounds dedicated to public uses within their respective limits.

When a city is incorporated, and its territorial boundaries established, we think it necessarily follows that its officers should have possession and control of all grounds within its limits dedicated to public uses. It would be an unhappy and factitious state of affairs to give to the county board the control of all public parks in cities of the third class, however remote from the county seat, and exclude the council of the city where they are located from any authority over them. One of the objects for which the city was incorporated would be defeated. The control of public grounds intended for the benefit of its citizens would be placed in the hands of those who might be indifferent to the welfare of the city. Against these reasons we cannot hold that the control and possession of parks shall follow the naked legal title, when it is held by the county in trust for public purposes and uses, which were intended primarily to benefit the inhabitants of the cities where such parks might be situated. (McCain v. The State, 62 Ala. 138.) We believe that the county had neither control nor possession of the tract. It follows therefore that the plaintiff could not bring this action.

We recommend that the judgment be reversed, and the court be directed to sustain the demurrer.

By the Court: It is so ordered.

All the Justices concurring.