178 P.2d 115 | Wyo. | 1947
So far as we have been able to find there was no specific legislation relating to parks in this state until 1907 when the Ninth Paragraph of Sec. 29-2301, Compiled Statutes of 1945, was passed which, among other things, provided that all cities and towns in this state should have power to contract for, purchase and hold lands for public parks, and to make rules and regulations for the protection, maintenance and beautifying of such parks. The only provision relating to the disposition of parks appears to be Sec. 29-118, Wyo. Compiled Statutes of 1945, which was passed by the Legislature in 1941, giving all cities and towns the power to *80 sell, convey and transfer property acquired or held for park purposes when such city or town has held title to such property for more than twenty years and no substantial use has been made thereof for park purposes for such period.
I.
We take it under the allegations of the petition that the City of Cheyenne owned the land embraced within Holliday Park in fee, dedicating the land for park purposes more than fifty years ago. There was then, as indicated above, no specific power granted by the legislature to acquire and hold property for park purposes. However, the Park has been held under legislative power since 1907, as above mentioned. Furthermore, it is stated in 3 McQuillan, Municipal Corporations, Revised Edition, 1046, that "unless restricted by law, a municipal corporation may transfer, donate or dedicate property for particular public uses, especially if such purposes are calculated to advance the governmental and municipal interests of the locality." So it is said by Dillon, Municipal Corporations, 5th Edition, Sec. 1078, that "a city or other municipal or public corporation may, unless restricted by charter or statute, dedicate to public use land of which it is the proprietor." See also State vs. Woodward,II.
We must now examine the general principles which are applicable in a case such as that before us. The exercise of the power of eminent domain is not in question in this case, so we need not consider that. When the City dedicated the area in question for a public park, it constituted itself and became the trustee for *81 the general public, and could not divert it to any other use, except as hereinafter mentioned. 44 C.J. 1100. If, said the court in Warren vs. The Mayor of Lyons City,If a dedication of property for public use is by a private party, not even the legislature can authorize property *82
thus dedicated to be used for any other purpose, since that would violate the contract between the dedicator and the public. 44 C.J. 1100. That rule should, perhaps, be modified to some extent, if, at the time of the dedication, the city or town had power, granted by the legislature, to vacate or abandon the dedicated property. Lloyd vs. City of Great Falls,
"A park is a pleasure ground set apart for recreation of the public, to promote its health and enjoyment. Perrin v. New York C.R. Co.
In the case of District of Columbia vs. Cropley, 23 App. Cases, (D.C.) 232, the court, speaking of streets and sewers, stated as follows:
"The right in and control over all the streets and sewers of the city are held by the municipal government for public use, and to no other use or purpose can they be appropriated, without special legislative sanction. `It would,' says the Supreme Court, `be a perversion of that trust to apply them to other uses.' Meriwether v. Garrett,
In Massey vs. City of Bowling Green,
"Further, Ky. Statutes, section 3290, subsection 33, authorizes the establishment of parks by the general council of cities of the third class, but makes no provision for their disposal or abandonment; and in absence of such legislative authority it would seem that where such a city purchases, condemns or formally appropriates lands owned by it for the purposes of parks, and establishes same, it may not dispose of or devote such land to other purposes inconsistent therewith." *84
In the later case of Bedford-Nugent Co. vs. Argue,
"As indicated, the question before the Court in the Massey case was, whether or not a dedication or irrevocable establishment of a park could be implied by reason of its use for such purposes. In holding that such a presumption could not be maintained, the Court went further and said that, since section 3290-33 of the statutes authorized cities of the third class to establish parks, but made no provision for their disposal or abandonment, it would seem that where a park had been created, even by the dedication of its own lands, it may not dispose of or devote the land to other purposes. We believe this to be a sound rule and are disposed to follow it in the case now before us. In the general statement under the Annotation on Parks and their Uses in 18 A.L.R. 1247, it is said: "The municipal authorities have power to devote park property to uses which are proper park purposes or consistent with the purposes of its dedication; but it is generally held that they can not divert park property from park purposes or the purposes of its dedication'."
III.
We come then to examine the specific rule which should be applied in the case at bar. Annotations on the subject are contained in 18 A.L.R. 1247; 63 A.L.R. 484 and 144 A.L.R. 486. In these annotations is considered the subject as to whether or not a particular use made of property dedicated as a park is inconsistent therewith. Among the subjects considered is that relating to streets. The City of Cheyenne, in the case at bar, has, of course, the power to open up streets and new streets, a power which doubtless has been conferred upon every municipality in the United States, but that power is not a special or express power to establish a highway through a park, On the contrary it is said in the annotation in 18 A.L.R. 1248, as well as *85 in the subsequent annotations on the same subject, that "the cases generally hold that a public highway cannot be laid out by a municipality upon park lands, meaning by `public highway' a part of the street system of the municipality, as distinguished from the park roads established to give the public access to the different parts of the park." Thus In Re Central Parkway, City of Schenectady,"Land acquired by a municipality by purchase or condemnation held strictly for public use as a park and not subject to the terms of any gift, devise, grant, bequest, or other trust or condition is under the control of the Legislature. The municipality holds the property in trust for the use of the public, and cannot use or permit its use for purposes other than those for which it was dedicated or acquired or appropriated. The Legislature may delegate to municipal corporations the regulation and control of property held for public uses. * * *
"However municipal corporations cannot without express authority from the Legislature appropriate any part of the public park to laying out streets and public highways because these uses are inconsistent with and destructive of park uses. Public parks cannot be cut up and portions thereof diverted at the pleasure of municipal bodies. Legislative permission is necessary to accomplish such a result. The Legislature may authorize the construction of a highway in the park; the city cannot. * * *
"When the city officials attempted to detach this strip of land from the park of which it was an integral part and to improve it for the purpose of converting it into a public highway, their plan was impossible of accomplishment for want of power."
In Sebring vs. Quackenbush,
IV.
Counsel for the city have cited and rely upon Reichelderfer vs. Quinn,It would, accordingly, seem clear, under the pleadings before us that the judgment of the district court should be, and is affirmed.
RINER, C.J., and KIMBALL, J., concur. *88