RESTRICTION TO A SPECIFIC USE
If land is acquired for specific purposes in accordance with a well conceived city plan, and if the terms on which it is acquired prevent its use in any manner inconsistent with these original purposes, an important safeguard is thereby set up against an ill considered abandonment of the original plan. A subsequent administration can not then sacrifice the deliberate progress made along the lines of the original plan by confiscating any of the land so acquired and diverting it to the service of some new project which may for the moment seem more important but for which the city is unable or unwilling to buy additional land. Clearly this makes for a conservative stability of purpose which is wholly in accord with the spirit of city planning.
On the other hand the normal and healthy modification of the city plan to meet new conditions may be seriously hampered by any restriction of municipal land holdings to a specific use. Owing to the great physical changes due to the growth of a city the use for which land was originally acquired may be entirely outgrown. This situation may arise when land originally transferred to the city for park or school purposes becomes absolutely unsuited for such use and useful for another public purpose or for private corporations or individuals. It is on the one hand undesirable to devote a considerable area to a use which prevents the best all-round development of the city,—commercial, industrial, and residential; it is equally undesirable to allow a decrease in park or school lands except for the best of reasons.
Cities have adopted at times a very short-sighted real estate policy. They have sold their valuable holdings at a low figure, have seen the buyer realize a tremendous profit, and have been obliged to purchase sites at a greatly increased figure when by retaining their holdings they would have had adequate land for their needs. Buildings have been planted in parks in the supposed interest of economy, and by filling up the site the building has been robbed of distinction and the people of needed open space. Such offenses against good taste and true economy, which are two of the compounds of city planning, are committed even now when the need of parks is more fully recognized by the public and is being championed by the press. This mistaken idea of economy probably explains the location of many city halls, in cities large and small, in downtown squares where open spaces should be preserved for the benefit of the community and public buildings arranged to face upon them. Worcester, Massachusetts, used part of its old common for a city hall; Philadelphia appropriated for the same purpose one of the public squares set aside by William Penn; the city hall in St. Louis occupies six acres that were once a public square; Charleston, South Carolina, whose city hall dates from early times, took for its site one of four small parks; Pittsburgh placed on land originally used as a public square two market buildings; Delaware Park, in Buffalo, has been encroached upon by an art gallery and historical building in a manner seriously impairing its value for the purposes which controlled its original acquirement; another five-acre park in Buffalo has been used in part for a school house site.
These are instances where good city building demands the protection of the original purpose through stringent limitations on municipal authority. But it would be unfortunate if park lands or any other public lands which have become unsuited for their original purpose, or which even though still suitable would block a desirable change in the city plan, could not be diverted to a new use without too great expense or delay. Some public lands are easily leased for a long term at good rentals and may thus bring in an income which, if applied to the purpose for which the lands were originally acquired, would accomplish more than the direct use of the land itself. The return from former school house property now in the retail section of Chicago swells the school funds by $637,569 every year. The appreciation of one lot at the corner of La Salle and Adams Streets, bought for $8,750 for purposes of the water department and now occupied by the Rookery, is $2,142,000.
The trouble comes when, for instance, the plans for a new civic center, as in Cleveland, provide for a union terminal station on park land, or where Chicago wishes to locate a Field Columbian Museum in Grant Park. Controversies aroused by cases like these only after years of delay reach the supreme court for a determination of the conflicting rights of the city and the grantors or their heirs. The principles as evolved from cases that have been decided recognize clearly a distinction founded on the legal character of the ownership of the land in question.
Case 1.—Where the city has acquired merely a right in the land, for instance a right to use the land for park purposes, and the ownership has remained in the grantor, there is a unanimity of decision that the land must be used for park purposes only, and that any other use operates to leave the land in the ownership of the original grantor free from the incumbrance of the city’s use. This reversionary right may be purchased or, if necessary, condemned, since the power of eminent domain is paramount to any kind of ownership, but it must be paid for.
Case 2.—Where the city has acquired all right, title, and interest in land by condemnation, it is the law in New York, at least, that the legislature may change the use and provide even that land formerly used as a park may be conveyed to private individuals or corporations for a private use.
In the case of Brooklyn Park Commission vs. Armstrong, 45 N. Y. 234, the city of Brooklyn had acquired a fee simple—absolute ownership—by condemnation to lands which were to be henceforth used as Prospect Park. Subsequently when the park plans were more fully developed it was found best to include some additional lands and exclude some of those originally acquired. The city sold one lot to the defendant, who refused to take title on the ground that the city could not convey a clear title. The court held that since the title was received in trust for an especial public purpose the city could not convey without the sanction of the legislature, but that it was within the power of the legislature to relieve the city from the trust and authorize it to sell and convey:
“Doubtless in most cases where land is condemned for a special use on the score of public utility, the sequestration is limited to that particular purpose. But this is where the property is not taken but the use only. There, the right of the public being limited to the use, when the use ceases the right ceases; when the property is taken, though a particular use may be abandoned, the right to the property remains.” “The public had the right of the land in making payment, and as soon as the owner was paid he was disseised. There is no reverter.” “By legislative sanction, it may be sold, be changed in its character from realty to personalty, and the avails be devoted to general or special purposes.”
Cases in other jurisdictions which seem to establish a different rule, namely, that the legislature can not divert property held by a municipality in trust for one purpose to another and inconsistent purpose, will be found to depend on the language of the particular statute or to be based on the conception that the complete ownership was never in the municipality.
Case 3.—The most perplexing situation arises where the land has been dedicated in fee for a particular public use, as for park purposes. The state of the law in this situation is by no means clear. Various state courts have come to different conclusions.
The Ohio court, in the case of Louisville and Nashville Railroad vs. Cincinnati, 76 Ohio St. 481, held that when a common, legal title of which was in the city in trust for its inhabitants, was no longer desired or the purpose for which it was dedicated was no longer obtainable, it would revert to the dedicator. But the Minnesota court in City of St. Paul vs. Chicago, Milwaukee and St. Paul Railroad, 63 Minn. 330, concluded that in attempting to divert property dedicated in fee simple for a specific purpose, the property would not revert to the dedicator but that the act of the legislature would be a mere nullity.
The most surprising decision on this point is that of South Park Commissioners vs. Ward, 248 Ill. 299. The case arose out of an attempt by the South Park commissioners of Chicago to locate the Field Columbian Museum in Grant Park.
The park had been dedicated forever to the use of the public by a platting in accordance with which there had been sold certain abutting lots, some of which had come into the possession of the defendants Ward et al. The right of the owners of the abutting lots to keep the park free from buildings was by a special statute of 1861 made enforceable by a bill in equity. Subsequent to 1893 an area many times the size of the original park was added to it by filling into Lake Michigan. The district abutting on the park had also undergone a radical change from its original residential character. The commissioners decided in 1909 to locate the museum on the addition to the park but were enjoined by Ward et al. The commissioners then proceeded under an act of 1903 which authorized them to condemn the rights in the park possessed by any lot owners under the original conveyance, but the petitions brought to condemn these rights were dismissed in the superior court.
In sustaining the decision the supreme court of Illinois held:
“If the legislature had no power to change the uses of Grant Park and to disregard the terms of the dedication by authorizing the erection and maintenance of buildings in the park, there could be no condemnation of the rights of the defendant that the park should be kept free from buildings whatever the nature of such rights might be.”
This decision is a denial of the sovereign power of eminent domain as is pointed out in the strong dissenting opinion. If the legislature could appropriate by eminent domain the property comprised in Grant Park before it was dedicated, it is impossible to see why it could not do the same thing after it was dedicated. Whatever the rights of the original dedicators or their heirs or those holding contract rights under them, those rights can be taken under the power of eminent domain like any other property right in any other jurisdiction but Illinois.
To avoid legal complications in the event of a change in use it is not enough to have inserted in the original dedication “for the use of the inhabitants as a park or for any other public use which the duly constituted authorities shall ordain.” Even under this provision, lands held in complete ownership by the city might become so dedicated to a specific use that the public, and perhaps in some jurisdictions private interests, would gain rights which later must be condemned if the land were desired for a different public use. This was the case in State vs. Woodward, 23 Vt. 92. A certain town had full ownership in a piece of land which could be used for any public purpose. An uninterrupted use by the public as a public common for twenty years had been allowed by the town, and the town survey described the land as a common. The court held that these facts amounted to a dedication of the land to the public use as a common, which was irrevocable. Cities must therefore be as guarded in preserving their control of the use of property as dedicators must be in the language of their grant if they wish to avoid restricting it to a special use.
Since such restrictions may either be valuable in maintaining a consistent city plan or may seriously impair the proper flexibility of such a plan, no general rule can be laid down as to their wisdom. They have proved an important protection in the case of many raids on park property, but it would seem that at least some portion of the lands acquired by a city ought to be readily transferable from one use to another without the delay and expense imposed by such a safeguard.