Zachry v. City of San Antonio

305 S.W.2d 558

Opinions

GRIFFIN, Justice.

This is a suit by respondent, hereinafter called City, against petitioner, hereinafter called Zachry, to cancel and set aside as void a lease contract entered into between City and Zachry on October IS, 1953 pursuant to an ordinance duly passed by the Council of City. By the contract City purported to lease to Zachry for a period of 40 years the right to construct and operate an underground parking garage beneath Travis Park in the City of San Antonio. Upon a trial before the Court, judgment was rendered setting aside and canceling the contract and refusing Zachry any recovery on his cross action against City. Upon appeal this judgment was affirmed. 296 S.W.2d 299. We affirm the judgment of the Court of Civil Appeals.

Shortly after the contract was entered into between the City and Zachry, Mrs. Rena Maverick Green et al. filed suit in the nature of trespass to try title alleging that they were the heirs of one Samuel A. Maverick, who, more than 100 years prior to suit, had dedicated the land upon which Travis Park was located for the use of the public as a public park or square; that the dedication was made in such manner that the park would revert to dedicator, his heirs and assigns, should the land cease to be used as a public park; that the lease between City and Zachry constituted a use of the park contrary to the purposes for which it had been dedicated, and, therefore, title had reverted to Mrs. Green et al. Final judgment was rendered against Mrs. Green and in favor of the City as the owner of the fee simple title to Travis Park. Green v. City of San Antonio, Tex.Civ.App., 282 S.W.2d 769, 773, wr. ref., n.r.e.

In that suit the City made common cause with Zachry in upholding the lease contract herein sought to he set aside by the City. Also in that case the Court said: “* * * It is admitted by both sides that Travis Park has been maintained as a city park by the City of San Antonio for approximately one hundred years, and thus there can be no issue as to whether the subject property has been dedicated to park purposes. * * * ” In our present case it was stipulated "that the land now known as Travis Park has been maintained by the City of San Antonio as a plaza, square or park for more than one hundred (100) years next preceding the institution of this suit.” The evidence shows it has been used as a park and was being so used at the time of the trial of this cause.

In executing and enacting the ordinance and lease contract involved in this suit, the City Council made a number of findings of fact. Generally speaking, the findings of fact have to do with the crowded traffic conditions of the San Antonio streets in the vicinity of Travis Park; the necessity for off-street parking facilities as a protection to the lives of the City’s citizens, and also to assist the City’s civilian defense plan. The City Council also found “that the subsurface of Travis Park is useless and unusable as a public park and there is no immediate prospect of any use for such subsurface in the foreseeable future, and is of no value to the City in its present state and will continue.to have no value unless it can be used as an underground or off-street parking facility; that the construction, operation and maintenance of an automobile parking garage in the subsurface area of the park will not materially interfere with or be inconsistent with the.use of the surface area by the public as a park,” since in the proposed plan of construction the .“park.will be restored and its beauty enhanced.”

The trial court filed what is denominated as its “District Court’s Holding.” Among other things, he stated that the City held fee simple title to Travis Park; that by virtue of the use of said park for more than 100 years it has been dedicated by public use to the public as a city park; that the use of the park “cannot be diverted to an inconsistent use.” Further the trial court said, “having permitted Travis Park to become dedicated to the public for use as a public 'park * * * and since the public is still using said park as a city park, though the City acquired fee simple title thereto iin its proprietary capacity, this title is now! subject to the rights of the public accruing by reason of the dedication, and cannot ¡be diverted to an inconsistent use.” And also, “The defendant’s [Zachry] plea of estoppel is overruled.” The trial judge then ehtered a judgment declaring the ordinance and contract null and void and of no force and effect whatsoever.

It is the general rule that where land has ofice been dedicated to public use, such as for park purposes, no use inconsistent with its use as a park can be made of the‘property so long as the public is still using the land as a park. San Antonio v. Lewis, 15 Tex. 388, 393; State v. Travis County, 85 Tex. 435, 21 S.W. 1029; El Paso Union Passenger Depot Co. v. Look, Tex.Civ.App., 201 S.W. 714(1), affirmed Tex.Com.App., 228 S.W. 917(1); City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601, 606; City of Dallas v. Gibbs, 1901, ¡27 Tex.Civ.App., 275, 65 S.W. 81, 83, wr. den.; City of Waco v. O’Neal, Tex.Civ.App.1930, 33 S.W.2d 205(1), wr. ref.; 14-B Tex.Jur. 392, Sec. 44; 26 C.J.S. Dedication § 54, p. 536; 26 C.J.S. Dedication § 65, p. 557; 38 Am.Jur. 166, Sec. 487; 39 Am.Jur. 810, Sec. 13; McQuillin, Municipal Corporations, Vol. 10, p. 109 et seq.; Id., pp. 130-1-131; Annotations 18 A.L.R. 1246; Annotations 144 A.L.R. 487. We are aware of th,e holding of the cases that a dedication made by a municipality is construed less strictly than a dedication made by an individual.- Also there are cases which hold that if the municipality owns the fee title to a-tract of land and has dedicated it to the use of the public, the municipality may change the use of the land so long as the; new use is for the public benefit.

In the case of San Antonio v. Lewis, 15 Tex. 388, cited above, the Court discusses the rúle of the French and. Spanish law as it affected an alienation of a part of Main Plaza in the City of San Antonio. It was there held that the right of the public to use Main Plaza as a park or recreation place could not be taken away by an attempted conveyance by the authority having control of the property.

In State v. Travis County, 85 Tex. 435, 21 S.W. 1029, in discussing the rights of the State of Texas and Travis County in a tract of land in the City of Austin, it is stated that since the tract of land was no longer needed for the use to which it had been dedicated for courthouse or jail purposes, the'County could abandon the rights it had in such tract. That case specifically recognizes that had the tract of land been dedicated and used as a public square the County could not put the land to use inconsistent with the dedicated use, so long as the public continued to use the land as a public square.

The case of El Paso Union Passenger Depot Co. v. Look, supra, was a case where the City of El Paso had dedicated a tract of land as a public park to be maintained by the Depot Company. The park was used by the public as such including the date of the trial. Later the City became involved with Look and others over the title to a street which ran west and southwest of- the park. In settlement of this first suit, the City agreed that it would build a concrete sidewalk 14 feet wide along the south boundary of the park so that Look et al. could construct their stores adjoining and facing the sidewalk and thus use the sidewalk for their own purposes. The public also had free access to and use of the walk. The opinions of the Court of Civil Appeals and Commission of Appeals each held that such use was inconsistent with the use of the park by the public, and enjoined the City from building the sidewalk. While the charter of the City of El Paso had an express provision against alienation of park property, neither court relied exclusively upon such charter provision. Each court recognized the general rule that the City -of El Paso had no power to put the park to a use inconsistent with its dedicated uses.

The case of City of Tyler v. Smith County, 1952, 151 Tex. 80, 246 S.W.2d 601, 606, involved the right of Smith County to sell the public square to private parties and thus cut off the rights of the public to use the park or square. This Court said:

“Under these undisputed facts evidencing dedication and after more than a century of unquestioned general public use following and accepting such dedication, it cannot justly be said that Smith County can now convert the square to private use. Of course, the county may abandon the present square as a site for a courthouse and build a new courthouse wherever it chooses; but if it elects to do that, the entire square must remain impressed with the right of the public to use it for general public purposes; it cannot be diverted to private uses. Lamar County v. Clements, 49 Tex. 347, supra.”

Petitioner relies upon the provisions of the San Antonio charter and the fact that San Antonio is a Home Rule city as authority for the City to make the contract with Zachry. Article 1, Section 3, paragraph 1 of the City Charter under the heading “General Powers” provides in part that “* * * the City may purchase, take, hold, acquire and convey, lease, mortgage and dispose of any property whatever within the city limits * * *.” “Paragraph 7. — Street Powers” provides in part that '“the City of San Antonio shall have the power to lay out, establish, open, * * * abandon, discontinue, abolish, close * * * park squares, public places * *

We must construe the charter powers conferred on the City in the light of constitutional and statutory provisions (Art. 11, Sec. 5, Const., Vernon’s Ann.St; Art. 1165, Vernon’s Ann.Tex.Civ.St.)' as they pertain to the charter provisions relating thereto. No home rule charter or ordinance passed under the Home Rule Statute shall contain any provision inconsistent with the general laws of the State. Such is elementary and fundamental and: requires citation of no additional authorities.

Article 1017, V.A.C.S., provides substantially that a sale of a park or square-may be made by an ordinance passed by the-governing body of any incorporated city or town, however, incorporated. Article 1019, V.A.C.S., provides that no such public park or square shall be sold until the sale has been authorized by a majority vote-of the qualified electors voting at an appropriate election. Article 1020, V.A.C.S.,. makes the provisions summarized above applicable to all cities and towns regardless of population, or manner and method of incorporation. Article 1112, V.A.C.S., provides that no light system owned by the city, park and/or swimming pools shall ever be sold without such sale being authorized by a majority vote of the qualified' voters of the city or town.

In the case of South Texas Public Service Co. v. Jahn, Tex.Civ.App.1928, 7 S.W.2d 942, 944, wr. ref., it was held that the prohibition against sale of a light system applied even though such system was unencumbered. In the case of City of Dayton v. Allred, Tex.Com.App.1934, 123 Tex. 60, 68 S.W.2d 172, it was held that the above-statute was effective to render void an attempt by the City of Dayton to encumber ■its utility system. By its wording the statute includes parks and the reasoning of the above cases will apply to prevent a sale or incumbrance of Travis Park by the City of San Antonio until authorized to do so by a majority of the qualified electors of such city.

“In other words, its [City’s] title to and power of disposition of property acquired for strictly corporats uses and purposes are different from its title to and power of disposition of property acquired for and actually dedicated to the public use of its inhabitants. As to the former class, the power of the corporation to dispose of it, unless restrained by charter or statute, is unquestioned. * * * The rule is different as to property held for public use. * * * The principle is that all such property is held by the municipality in trust for the use and benefit of its citizens and is dedicated to the use of the public, and the corporation cannot divest itself of title without special authority from the legislature. It is only when the public use has been abandoned, or the property has become unsuitable or inadequate for the purpose to which it was dedicated, that a power of disposition is recognized in the corporation. Thus, a municipal corporation has no power to sell or convey land dedicated as a park, square or common. * * * ” (Emphasis added.) 38 Am.Jur. 165-166, Sec. 48/.

Under the facts of this case, as stipulated by the parties, there can be no question that Travis Park has been dedicated and used as a public plaza or park for more than 100 years. City of Tyler v. Smith County, supra; 26 C.J.S. Dedication §§ 40(6), 44a, pp. 483, 493.

Petitioner claims that the City lawfully abandoned the park. The evidence does not show an actual abandonment, but, •on the contrary, shows the public was continuing to use Travis Park for public purposes up to the time of trial. The findings of the City Council preliminary to the adoption of the ordinance leasing the property to Zachry recites only that the City is abandoning the subsurface of Travis Park as a public park. However, the evidence shows that the proposed plan of construction of the underground parking garage will appropriate approximately one-fourth ijf the present area of the surface ■of Travis Park for the use of the private persons operating the storage garage, and their customers and employees. To constitute an abandonment the use for which the property is dedicated must become impossible of execution or the object of the use wholly fail. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849, 852, 1950; Magee Heirs v. Slack, 152 Tex. 427, 258 S.W.2d 797, 802(1); Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922; 26 C.J.S. Dedication § 63, p. 552.

We have in our case not only the use of the subsurface, but also the use of about 27,000 square feet of the present surface area of 111,555 square feet for garage off-street parking purposes. The testimony of the architect who drew the proposed plan of operation for the garage shows that the present public sidewalks bordering the park will be destroyed. In their place will he entrance and exit ramps for use of those patronizing the storage garage, tire shops, repair shops, etc. used in connection with the parking garage. Those entrance and exit ramps will be approximately 18 to 25 feet wide. Some 12 to 17 feet of this width will come off the present surface of Travis Park. There will be two of these ramps, one on the west side and one on the east side of the park. In addition, there will be a loading platform on the south side of the park occupying approximately the west one-half of the south 11.5 feet of the park. There is a driveway at and around each of the four corners of the park that uses present surface space of the park. In the center of the park, now occupied by a statue, there would be the escalators whereby patrons of the storage garage leave and enter the garage. This area instead of being approximately the same level as the rest of the park surface will be some three feet higher than the boundary edges of the park. In this area will be a surface structure some 32 feet square to house the escalators and ramps. On the east and west edge of the park there would be two exhaust housings whereby the stale air from the garage would be dispensed in the surface air of the park. These exhausts are each four feet by 16 feet, and project above the surface of the park some two feet.

The evidence shows that all of the present surface of Travis Park will be excavated and removed, and that the public will be unable to use the park from the time work starts on the proposed construction until construction is completed and the park refilled and the surface unused by the parking garage has been planted and made into a tract fitted for park purposes; that trees can only be grown in boxes. In the ordinance the subsurface is set out by full legal description, following which there is the statement that “there is likewise granted, leased and let unto the lessee so much of the surface thereof as is required for the proper ingress and egress and for the vent sites to the subsurface. * * * ” (Emphasis added.) Considering all the stipulations, testimony, exhibits, etc., before the trial court, we agree that an unlawful diversion of Travis Park would take place in the construction of the garage parking facilities, and that the City Council was without authority to make and enter into the lease. In addition to our holding that there would be an unlawful diversion of Travis Park, we hold the evidence shows no actual abandonment of Travis Park for public purposes. Thus we hold the lease null and void and of no force and effect, and the City is not bound thereby.

The petitioner claims that Travis Park is owned by the City in its proprietary capacity and therefore the City can abandon same or divert the use of same by an ordinance. In view of our holding that Travis Park may not be put to a use inconsistent with its use as a dedicated public park, it becomes immaterial whether Travis Park is held by the City of San Antonio in its proprietary or governmental capacity and we do not decide this question.

Zachry contends that the City is estopped to question the validity of the Zachry lease because of the following: By virtue of its position taken in the lawsuit brought by Mrs. Green et al. to set aside this same lease contract; by its acceptance of the services of an attorney employed by Zachry to assist it in defending the Green suit; by the City’s continued acceptance of the rent paid by Zachry to City in accordance with the terms of the lease; and by standing by and permitting Zachry to expend the sum of approximately $80,000 necessarily required to carry out his obligations under the lease.

In the case of Radford v. City of Cross Plains, 126 Tex. 153, 86 S.W.2d 204, 207, 1935, Radford had purchased certain revenue bonds issued by the City of Cross Plains without a prior election having been held to authorize their existence. Radford sought to bind the City of Cross Plains upon the doctrine of estoppel to deny the validity of the “revenue bonds”. This Court said:

“These bonds having been issued without a vote of the people, in direct contravention of the statute, were void. As the city not only had no authority to issue same without a vote of the people, and as they were issued in violation of law, the city was not estopped to question their validity. Citizens’ Bank v. City of Terrell, 78 Tex. 450, 14 S.W. 1003.”

Section 128 of the city charter provides that the City shall never be estopped to deny an improper deviation of the City’s property. See also 30A Tex.Jur. 462, Sec. 442, and authorities there cited. We hold the City is not estopped.

This disposes of all the assignments of error raised by Zachry in his application for writ of error.

The judgments of both courts below are affirmed.

NORVELL, J., not sitting.