Lester v. Mayor of Jackson

69 Miss. 887 | Miss. | 1892

Cooper, J.,

delivered the opinion of the court.

By her will, Mrs. Ellen L. Moore devised her late residence, “ Oakwood,” to her father, Preston Hay, and to her brother-in-law, James T. Lester, for life, with remainder to the city of Jackson “for a public park.” Since the death of the testatrix, Mrs. Lester, her sister and. the wife of James T. Lester, has died childless and intestate, and Mr. Lester is'entitled to take, by inheritance from her, whatever estate she inherited from Mi’s. Moore. Mrs. Moore’s will contained no residuary clause, and she died intestate as to the reversion in fee in “Oakwood,” unless the devise to the city is valid.

“ Oakwood,” containing about thirty-five acres, is situated just without the city limits, and appellant, Lester, contending that the city has no corporate power to take under the .devise, because the land is not within the city (its charter conferring no express power to acquire land outside), exhibited his bill in the chancery court of Hinds county to secure cancellation of so much of the will of Mrs. Moore as devises the estate in remainder to the city as a cloud upon his title. The board of mayor and aldermen demurred to the bill, and the demurrer was sustained and the bill dismissed. Erom that decree complainant appeals.

The right of the city to take under the devise is attempted to be maintained upon several gi’ounds by counsel, but, since we are satisfied of its right on one of them, it is unnecessary to consider the others. We are content to rest our decision, upon the declaration that the use to which Oakwood is dedicated by the will of Mrs. Moore is a city purpose, notwithstanding the fact that the land is without the city.limits. "We confess our inability to appreciate the distinction, so zealously pressed in argument, between the right of a town to have a park within its corporate lines and the absence of right to acquire one, even though donated to it, if it lies-beyond such lines. The purposes, it must be admitted, would be the same in either event, and that purpose would be equally public — i. e., to be enjoyed by the same persons, and for the same uses, whether located within or without the city limits. It is true the city may not have the same power of police over the park without its limits that it would over one within them, but the laws of the state would be in full operation there, and the right of the town, as owner, would be protected by them as are the property rights of natural persons. The fallacy in the argument of counsel for appellant seems to us to rest in the assumption that a town may not own property, however necessary or convenient to its corporate purposes, unless it may exercise rights of sovereignty over it. All acts of municipalities, by which parts of the sovereign power of the state delegated to it are exercised, must, of course, be performed within the territory over which the power is delegated; but a right to own property is not a sovereign right. One state may own land in another, but it can exercise no'governmental control over it; for, as to such land, it stands in the position of a private person. So, a city owning a park without its limits could exercise over it only those rights and powers which spring from ownership, but it does not follow that because it may not be sovereign it may not be owner.

The subject has been so thoroughly considered by the supreme court of New York that we need only say that we adopt the views .of that court, as .expressed in the case of Matter of Application of the Mayor, etc., 99 N. Y, 571. See also, 1 Dillon, Mun. Corp., § 565.

The decree is affirmed.