37 Wash. 274 | Wash. | 1905
Appellant brought this action to enjoin the respondents from diverting the use of certain land to another purpose than that for which it is claimed said land Was acquired by the city. The material facts are about these: The city duly enacted an ordinance with the following title:
“An ordinance providing for the condemnation and appropriation of certain real estate for the purpose of the construction of retaining walls and slopes thereon, and draining*, bulk-heading, piling, surfacing, terracing, and otherwise improving the same, in order to protect certain streets, alleys and highways in the city of Seattle, and to prevent the same from being obstructed, and to use said property, after it is so improved, for a public park.”
Pursuant to this ordinance, the city condemned the land in question, by appropriate proceedings in court. Thereafter, instead of using said premises for a public park, the city authorities decided to erect thereupon an “In-Town Terminal Sub-Station,” to be used in connection with the city’s lighting plant, which use, it is alleged, would be inconsistent with the enjoyment of said lands as a public park, and, in fact, would prevent them from being used as such. The complaint alleges that appellant purchased property directly opposite this proposed park, which it would not have purchased had it not been for the public declaration in said ordinance that the taking of such property was for the purposes of a public park. Respondents demurred to appellant’s complaint, and the demurrer was sustained. • Appellant elected to stand upon its complaint, whereupon the trial court made and entered a judgment of dismissal. Appeal is taken from said judgment.
Appellant contends that, inasmuch as the city stated in said ordinance that the condemnation and taking of said property was with the intention of using it ultimately as
The ordinance contains no provision for the creation of an assessment district to bear the expense of acquiring said property, or for the payment of the same by means of an assessment upon property which would be specially benefited by the creation of a park out of the lands thus aequired. It will thus appear that the payment for said land so taken must be from the general fund of the city. Cities of the first class have power,
“To acquire, by purchase or otherwise, such lands and other property as may be necessary for any of the corporate uses provided for by its charter, and to dispose of any such property as the interests of the corporation may, from time to time, require.” Bal. Code, § 739 subd. 3.
Such cities are also given power,
“To lay out, establish, open, alter, widen, extend, grade, pave-, plank, establish grades, or otherwise improve the streets, alleys, avenues, sidewalks, wharves, parles and other public grounds, and to regulate and control the use thereof and to vacate the same.” Bal. Code;, § 139, subd. 7.
It is doubtless the law that, where a person dedicates or donates to' a city a tract of land, with a restriction upon its use — as for instance, where it is so dedicated or donated solely for a park or a public street — the city can not legally divert the use of such property to uses and purposes inconsistent with the purpose of such grant; and, in cases where a city has acquired property for the purpose of a public park, and the payment thereof is made by means of special assessments, levied upon neighboring property specially benefited by reason of the acquiring and using of said property for such purposes, that the owners of said property, thus suecially assessed, mr in a
But where property is taken, and paid for from the general fund, with the intention' of using it for a certain purpose specified in the ordinance authorizing the taking, as was done in this case, the city, doubtless, has the authority to change said contemplated use to another and entirely different use, whensoever the needs and requirements of the city suggest.
In 2 Dillon, Mun. Corp. (4th ed.), § 651, the author says:
“As between the municipality and the general public, the legislative power is, in the absence of special constitutional restrictions, supreme, and so it is in all cases where there are no private lights involved. If the municipal corporation holds the full title to the ground for public uses, without restriction, the legislature may doubtless direct and regulate the purposes for which the public may use it. . . . In the absence of any restriction by contract or special restriction in the constitution, the power of the legislature over the use of public property — that is, its power to modify and regulate such uses — is undisputed, and so far as the public or municipality is concerned, it is, perhaps, quite unlimited.”
In Brooklyn v. Copeland, 106 N. Y. 496, 13 N. E. 451, it was held that the legislature could relieve the city of the restriction, and authorize it to sell and convey property theretofore taken for park purposes. Lewis, Eminent Domain, § 596, says:
“Where a fee simple is taken, the weight of authority is that there is no reversion, but when the particular use ceases, the property may, by authority of the state-, be disposed of for either public or private uses.”
In McNeil v. Hicks & Howell, 34 La. Ann. 1090 the supreme court of Louisiana said:
*278 “The doctrine was early declared by this court, that a municipal corporation may alienate or change the use and destination of public places with the consent and by the authorization of the sovereign power first obtained, whenever the public interest may require it”
An examination of the authorities cited by the respective parties hereto, and such others as we have been able to examine, shows that a clear distinction is observed between those cases where the fee of the property is acquired (by purchase, condemnation, or otherwise), and those cases wherein the city obtains merely an easement; also, between cases where the full purchase price is paid by the city from its general fund, and those cases where the property is dedicated or donated for some specific public use, or conveyed with some restriction, or where payment is provided by assessment upon neighboring property specially benefited by the contemplated use.
In the case at bar the city acquired the full and complete legal title in fee to this property, without restriction of any kind; and paid, so far as the record shows, the full value therefor from the general fund. It was not a dedication or donation, or a conveyance to the city with any limitations or restrictions. The city having thus acquired the property, and, in its wisdom, decided thereafter that the contemplated use should be changed, and that its welfare and necessities required a use for economic purposes, we are unable to find any authority authorizing the appellant to interfere with the respondents’ actions in this direction. Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234, 6 Am. Rep. 70; Curran v. Louisville, 83 Ky. 628.
The judgment of the lower court is affirmed.
Mount, C. J., Rudkin, Crow, and Dunbar, JJ., concur.
Hadley and Fullerton, JJ., took no part.
