Carrying out the city plan

by Flavel Shurtleff

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.