48 Mo. 361 | Mo. | 1871
delivered the opinion of the court.
This is a petition for injunction. Plaintiffs state that the original owner of the land on which the town of Brookfield' is situated, laid off and recorded a plat thereof, and particularly set forth, marked and designated thereon four acres of land as a “ parkthat the fee to said park, by virtue of said plat, was vested in the town, in trust for the free use of all the inhabitants of the town as a common or public ground, and for no other purpose whatever; that the town inclosed the same with a good fence, gates, etc., and embellished the ground with trees, grasses and shrubbery for the purpose of a park ;■ that the same has been and still is used for a park and for no other purpose; that plaintiffs have property with valuable improvements thereon now adjoining to and fronting on said park, which they purchased and improved upon the faith that the park was then and ever would remain a public park; that the defendants, in their 'capacity of trustees of the said town, were about to open the park,- destroy the fencing, grasses and trees, and cause public streets to be run through the same, to the great damage of the
The court, upon a hearing of the case, made the injunction perpetual, and the defendants appealed.
• The evidence for the plaintiffs substantially sustained the allegations in the petition, whilst the evidence introduced by the defendants went simply to show the amount of damages that the plaintiffs would suffer in consequence of opening the street.
The town of Brookfield was incorporated under the statutes of this State, and they provide that the maps and plats of cities, towns, villages and additions, made, acknowledged, certified and deposited with the recorder, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein named, described, or intended for public uses in such- city, town or village when, incorporated, in trust for the uses therein named, expressed, or intended, and for no other use or purpose. (Wagn. Stat. 1328, § 8.) When the town authorities ordered the opening of the streets through the park the act of March, 1869, was in force, which gives power to the boards of trustees in.towns “ to open and form public squares, avenues, drains and sewers, and to keep the same clean and in order; to locate and lay out new. streets and alleys, and to widen streets heretofore laid out and opened in such town, and to appoint three (3) commissioners to assess the damages done to the property upon which such street or alley may he located.” (Wagn. Stat. 1315, § 7.)
It is obvious that the board of trustees derived no authority for their action from this last-quoted section, for they did not attempt to proceed under it, or comply with its provisions in reference to laying out streets and widening the same. The park was public property; and whether they could divert it from its original use and the purpose specified by the donor in the act of dedication, is the question. The property did not inure nor was it acquired by the exercise of the right of eminent domain. ' There is no act
The proprietor of the town in his plat, laid off, set aside and dedicated the four acres for the purposes of a public park. The statute declares that the plat, when recorded, shall vest the title of the property in the town, “in trust for the uses therein named, expressed, or intended, and for no other use or purpose.”
In the case of Rutherford et al. v. Taylor et al., 38 Mo. 815, it was held that the owners of lots facing the square, who had purchased their lots upon the faith of the dedication of the square to public uses, might bring their bill to enjoin the erection of buildings upon the square by individuals. In that case the county, which possessed the fee to the lots in the square, had sold them to private individuals to build upon; but we decided that it would be an act of bad faith toward those who had purchased and improved property — relying upon the fact that the square was dedicated, appropriated, and would continue to be used, for the purposes of a public square — to allow these buildings tobe put up.
In Abbott- v. Mills, 3 Verm. 521, the dedication was of a public square left in a village, around which the inhabitants had built their houses ; and it was held a sufficient dedication that the proprietors of the town had exhibited such a square upon the plan of the town, and had suffered persons to go on and incur expense in erecting their houses, although they had not marked off the same by monuments on the ground; and they were accordingly prohibited from making use of the land for purposes inconsistent with its use as public square.
So in Iowa the court fairly decided the question that when a portion of ground is dedicated by the original proprietors of a town or. city for the purposes of a public square therein, the municipal authorities cannot sell the same or divert it to uses and purposes foreign to those for which the dedication was made. (Warren v. The Mayor of Lyons City, 22. Iowa, 351.) Nothing, I think, c'an be clearer than that if a grant is made for a specific, limited and definite purpose, the subject of the grant cannot be
The judgment should be affirmed.
