Opinion
No. 43386.
September 14, 1953.
APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, PHIL H. COOK, J.
Herbert F. Butterfield, Ralph H. Duggins, Robert L. Rasse, Marshall, for appellants.
Otha Rawlings, Robert L. Hoy, Marshall, for respondents.
Plaintiffs (as individuals and as representatives of resident taxpayers and property owners similarly situated) sought to restrain Saline County (and the judges of, and a commissioner appointed by, the county court) and the City of Marshall. The county seat, from "assuming possession or control of any part or portion * * * of the Public Square and from running any street through or over the same and from doing or permitting any act or acts which will interfere with the use of said land as a public square, or with the enjoyment of the same by the plaintiffs or the public at large." In Count II, plaintiffs asked cancellation of the county's grant of the casement hereinafter described. The trial court found for defendants on both counts. Plaintiffs appealed from the ensuing judgment. As a county is a party, the appeal is properly here. Section 3, Art. V, Mo. Const., 2 V.A.M.S., P. 31; Platte River Drainage Dist. No. 1 of Buchanan County v. Andrew County, Mo.Sup., 278 S.W. 387.
The basic issue is whether the use of a 24' strip around the Square, contiguous to the four streets and "rounded" at the corners, "for street purposes" constitutes a diversion or misuser of property dedicated to courthouse square purposes. The Square is a part of land conveyed to the county in fee simple and selected as the "site for the permanent seat of justice" of that county in 1839. See Laws of Missouri, 1838-1839, p. 150. Thereafter, the commissioner (appointed by the county court to locate a 320 "Square Proper" bounded by 70 streets and to sell 100 lots as platted) filed a plat entitled "Map of the Town of Marshall." The "Public Square" was an (unnumbered) block in a platted (and numbered) block-and-lot area. Outside the platted blocks were "Commons" — 33" wide on the north, 40' on the east, and 273' on the south. The area on the west was unmarked. (The "Commons" areas were platted, sold and improved many years ago.) North Street was north of the "Public Square," Arrow Rock (now Arrow) south, Lafayette west and Jefferson east, all 70' wide. (Two 80' "Main" Streets, one east-west and the other north-south, "dead ended" in the centers of the four sides of the Square. Apparently only one of these — that intersecting Lafayette, now 56' wide Court Street — was ever laid out and improved.) The commissioner sold lots, including those opposite the Square, by deeds in which the lots were identified and described by reference to the map. Thereafter, the courthouse was built in the middle of the "Public Square" block. In 1898, city ordinances established the width of the streets around the Square at 50'.
It was stipulated that, by scale, the "Public Square" block on the map was 320', not 300', square; that actually the block is approximately 332' square; and that approximately 6' of the present 12' outer sidewalk is on this 332' square block. Plaintiffs' evidence was that, prior to the time the city "rounded" the corners and paved the streets in 1898 or 1899, there was an iron fence (apparently preceded by a wood fence) around the Square, "just inside this present wide (12' outer) walk" outside that fence was a walk, and next to that walk, an iron pipe or chain hitch rack. There was a "watering trough" on the east side. (Apparently, long prior to 1899, a substantial portion of the 24' strip now proposed to be used for parking motor vehicles was used "for street purposes," viz., parking of the transportation units of the times — saddle horses, mules, oxen and animal-drawn vehicles.) In pre-automobile days, access to the Square and the courthouse was restricted to openings in the fence — restrictions which, in restrospect, appear justified by Nineteenth Century circumstances. In 1898 or 1899, access to and within the Square was facilitated by the removal of the fence, sidewalk and hitching rack and the installation of the present outer sidewalk by the county court.
The parties agree that the Square "has been and is devoted to public uses and purposes as a courthouse and public square; grasses, trees and shrubbery were planted and sidewalks, monuments and benches constructed thereon, at various times in the past, and presently are located thereon." Today, there is a 12' concrete outer sidewalk next to the curbs and a 15' concrete sidewalk between the courthouse and each of the four streets; on the east is a semicircle drive (used for deliveries of coal and supplies to the courthouse) with both entrance and exit on Jefferson Street. On the north are a World War I memorial monument and a flagpole. Drinking fountains are in two corners and a stone Santa Fe Trail marker in another. Embedded in the sidewalk are iron benches (none are on the lawn) which are often used by the public. There are approximately 46 trees. Other than a few shrubs near the marker, all of the shrubbery is around the courthouse itself. The parties agree that the city "has in the past and is presently maintaining street light poles and fire hydrants on the sidewalk area of the streets abutting on said Square and all exterior lights on the courthouse are paid for by the" city and that the city "has regulated and is now regulating traffic on the streets abutting" the square.
The Square area is used primarily by persons having business in the courthouse, such as plaintiff Sharp, a doctor with business interests, and plaintiff Swisher, an abstracter. In earlier days, when benches were on the lawn, it was used by the public in connection with street fairs and "fall festivals," for recreation and small family picnics. But today there are keep-off-the-grass signs and the lawn is seldom used. According to plaintiff Swisher, its use now is only by overflow crowds attending large public meetings, public speakings, public auctions, sales in partition or under deeds of trust or by college students in connection with parades around the Square. Plaintiff Sharp (whose office is in his building opposite the Square) had not seen a "family Picnic" in the Square since the city acquired its park in 1937 or 1938. However, the public uses the sidewalks and benches extensively.
The present traffic-parking situation on the 50' streets around the Square: Counter-clockwise one-way traffic in a 12' "through" lane between two 18' angleparking areas. The plan proposed: After widening the streets to 74' (i.e. to include the 24' strip), one-way traffic as at present in a 14' through lane between two 11' "maneuvering" areas and two 19' angleparking areas. There would be a loss of parking space for 16 vehicles next to the Square. (A Chamber of Commerce lot, one block north of the Square, would be made available for the off-street parking of approximately 70 vehicles.) Pedestrian crosswalks would be provided in the middle of each block. A 5' outer sidewalk would be installed around the Square next to the curbs.
It was not controverted that the city's regulation of the traffic around the Square presents serious problems. Plaintiff Sharp admitted that there was a "traffic problem" but doubted if the plan would solve it. Mrs. Klinge, plaintiffs' witness, "realized that it's very congested,"but did "not think the plan would help." J. Leo Hayob, mayor and for four years chairman of the council's street and alley committee, testified that the city officials sought advice from the officials of other cities and from the state highway department; that the council considered as 12' and an 18' widening, but finally decided that the 24' widening — making possible the 14' through lane, the two 11' maneuvering lanes and the pedestrian crosswalks — was the best plan for eliminating traffic congestion, for more effective parking and for pedestrian safety. This view was corroborated by defendant's expert witnesses. State highway department traffic engineers stated that the traffic around the Square was "unusually heavy"; that cars entering or leaving the parking spaces slow down or stop through traffic, diminishing the through lane's capacity; that under the plan the movement of emergency vehicles (fire-fighting, ambulance, police) would be expedited. Those witnesses recommended the plan as the best solution of the problem. The director of Kansas City's traffic department said that the 14' through lane would provide for an uninterrupted flow of through traffic and, in his opinion, was "the best safety measure so far as the city and county are concerned."
The city enacted ordinances for the 24' widening and for the grading, paving, curbing and guttering the streets. The notices were duly published. The city's records did not show the filing of any protest within the time specified but some informal protests were thereafter made to the council. Plaintiff Sharp, owner of a building at North and Lafayette, testified that the plan would cause an increase in his per-front-foot assessments for future street improvements.
By its commissioner's deed dated March 25, 1952, the county granted to the city "an easement for street purposes" in the 24' strip. The city officials and the county court had several conferences. County Judge Pyle testified that "the court gave consideration and study to the proposal and weighed its effects"; that "for the purpose of correcting the traffic conditions" and, upon the advice of the prosecuting attorney that they "were within their rights," the court granted the easement; the court considered and weighed protests but "relied on its own judgement." County Judge Wilson said that the court considered the statements of the city's representatives and the state highway department's traffic studies and made their (the county judges) own observations; that, with knowledge of the problem and that the county would pay for the 5' outer sidewalk and its (the county's) front-foot percentage of the paving, guttering and curbing costs, the court "acted with what they felt was the best interests of the residents of the county."
As noted: Although the designated width of the streets on the old map was 70' the Square originally was and now is 332' square (not 320' as directed in the county court order or 300' as indicated on the map); for many years the outer 12' of the block was used for street purposes; and in 1898 or 1899 the "rounded" corners were put to street purposes. However, we need not determine the county court's power, under such circumstances, to grant an easement for street purposes on the outer 12' or the outer 20' of the 25' strip. We can assume without deciding that there was both a statutory and a common law dedication of the 332' square block to the purposes of a courthouse square.
The courthouse is the traditional rural county courthouse — "the building at the county seat in which the courts are held, the records kept, and the officers of the county maintain their offices and perform their functions." Harris v. Elder, Tex. Civ. App., 49 S.W.2d 973, 978[4]. Sec also 21 C.J.S., Courts, § 166, p. 255. The most usual meaning of "public square" is a square "occupied by the courthouse and owned by the county." Westfall v. Hunt, 8 Ind. 174, 177. See also. The City of Logansport v. Dunn, 8 Ind. 378, 382; Lowe v. Board of Commissioners of Howard County, 94 Ind. 553. "What is meant by the phrase `courthouse purposes,'* * * we need not attempt to define. The customs and usages of a particular state or locality might contribute largely in shaping such a definition. Some of these customs might also be matters so general, and of such common knowledge, as to be subjects of judicial cognizance, without proof." Henry v. Etowah County, 77 Ala. 538, 540.
Plaintiffs correctly contend that "any use inconsistent with, or substantially or materially interfering with, the use of the property for the particular purpose to which it was dedicated constitutes a misuser or diversion." See 26 C.J.S., Dedication, § 66, p. 156; State ex rel. Roland v. Dreyer, 229 Mo. 201, 129 S.W. 904, 912; Holekamp Lumber Co. v. State Highway Commission, Mo. Sup., 173 S.W.2d 938, 941[2, 3]. However, we do not believe that the use now proposed to be made of the 24' strip would be inconsistent with or substantially interfere with the block's use for courthouse square purposes. "While evidence alone of an intention to dedicate land to a particular use cannot be considered as implying an intention to dedicate to another and entirely different use, all public dedications must be considered with reference to the use for which they are made. Whether a particular use amounts to a diversion from that for which the dedication was made depends on the circumstances of the dedication and the intention of the parties making it, and is, therefore, largely a question of fact. * * * In any case, however, such use is authorized as is fairly within the terms of the dedication and reasonably serves to fit the property for enjoyment by the public in the manner contemplated. The dedicator is presumed to have intended the property to be used by the public, within the limitations of the dedication, in such way as will be most convenient and comfortable and according to not only the proprieties and usages known at the time of the dedication, but also the those justified by lapse of time and change of conditions." 16 Am.Jur., Dedication, Sec. 61, pp. 407, 408. In State ex rel. Roland v. Dreyer, supra, we said (quoting from City Council of Augusta v. Georgia R. R. Banking Co., 98 Ga. 161, 166, 26 S.E. 499): "If the conditions are such that they may be reasonably made to consist, there is no such encroachment upon the prior public use as even appreciably to impair, much less extinguish, it, and therefore, even though some slight inconvenience may result to the prior occupant, there is no reason why a second public use * * * may not be held to confer on the public authorities the right in such manner to exercise it. A different result follows, however, when the enjoyment of the second use involves the practical extinguishment of the former, or renders its exercise so extremely inconvenient and hazardous as practically to destroy its value." 129 S.W. 904, 914.
Such "different result" followed in these cases involving courthouse squares: Rutherford v. Taylor, 38 Mo. 315, wherein the county court sought to sell 42' off each end of the square; Commissioners of Franklin County v. Lathrop, 9 Kan. 453, wherein the county commissioners sought to sell a portion of the square and apply the proceeds toward the cost to building a courthouse. The county has no power to divert land, dedicated to courthouse square purposes, to private use. Gaskins v. Williams, 235 Mo. 563, 571, 139 S.W. 117, 120 [1, 2]. In Headley v. City of Northfield, 227 Minn. 458, 35 N.W.2d 606, 610[6], it was ruled that conversion of a major portion of a public square (not a courthouse square) into an athletic field and playground "would not only render unfeasible well-recognized and customary uses of a public square * * * but would absolutely prevent them."
On the other hand: "Any collateral or secondary purpose which does not interfere with these primary uses [for courthouse square purposes], cannot be construed to be inhibited by the terms of the deed [of dedication]." Henry v. Etowah County, 77 Ala. 538, 540. In Ocean Beach Realty Co. v. City of Miami Beach, 106 Fla. 392, 143 So. 301, 302, involving a 15' strip off of land dedicated for park purposes, the court found that the strip's use for street-widening purposes "was conducive to the use of the land for park purposes, rather than an abandonment of it for park purposes." In City and County of San Francisco v. Linares, 16 Cal.2d 441, 106 P.2d 369, 371[1], the construction of an underground public garage in Union Square (for the purpose of relieving traffic congestion in San Francisco) was held not a diversion; the court concluding that, despite the temporary interference with public use of the square during construction, and the permanent loss of use of 6 1/2 per cent of the area for ingress and egress, the contemplated use was "not inconsistent with enjoyment by the public of the land for park purposes."
Recently, the Supreme Court of Kentucky, in a case involving a strip formerly used by pedestrians, horseback riders and ox teams, said of the "different times and changed conditions" principle: "Dedication is not confined to the usages known at the time. It includes the right of the public to use the property in such a way as is convenient and comfortable, according to changed conditions and methods of travel. The ordinary or customary current method is, of course, by automobile." City of Hazard v. Eversole, 313 Ky. 254, 230 S.W.2d 921, 924[4, 6].
Access to the instant Square is from all four streets and, within the Square access to the courthouse is by the outer sidewalk, the walks between the courthouse and the streets and the semicircular drive. Obviously, the street-widening plan would not change access either to the Square or to the courthouse itself, Indeed, all the circumstances considered, it appears that the plan would make the courthouse and the Square more accessible. True, there would be a loss of 16 parking spaces next to the Square. But, as now, the destination of all occupants of vehicles parking on the "inside" of the Square would not be, and the destination of many occupants of vehicles parking on the "outside" of the Square would be, the court-house or the Square. The pedestrian cross-walks — regulating, expediting and making safer pedestrian movement between the Square (and the vehicles parked next to it) and the opposite sidewalks (and the vehicles parked next to them) — would facilitate access to and from the courthouse and the Square. We are not persuaded that the loss of approximately 15 or 16 percent of the Square's area would substantially impair access, either to or within the Square.
Nor are we persuaded that the loss of 18 or 19 trees would impair to any appreciable extent the Square's aesthetic qualities or its use, as now, as a park with shade trees, lawn, shrubbery, benches, drinking fountains, flagpole, Santa Fe Trail marker and Saline County's World War I memorial monument. The Square, little reduced in area, would remain dedicated to public use, particularly members of the public attending court sessions or having business in the offices of the county's officials. The evidence was that 27 or 28 shade trees would remain; the few shrubs destroyed would be replaced; the fountains, marker, monument and flagpole would be relocated; the 12' outer sidewalk would be replaced by a 5' outer sidewalk; and the benches would be relocated along the walks. (Presumably, the present restrications on the use of the smaller lawn spaces would be continued.)
We find that the use proposed to be made of the 24' strip would be incidental to and in furtherance of the use of the entire block for courthouse square purposes, and rule that such proposed use would not constitute a diversion or misuser of the strip from the purposes to which the block, of which it is a part, was dedicated. It follows that (under Section 49.270 RSMo 1949, V.A.M.S., vesting control and management of county property in the county court) the county court was authorized to grant the easement.
The cases plaintiffs cite are inapplicable. Kennard v. Eyermann, 267 Mo. 1, 182 S.W. 737, did not involve diversion or misuser. The contemplated uses in Rutherford v. Taylor, 38 Mo. 315 (sale of substantial portions of a courthouse square), Town of Montevallo v. Village School District of Montevallo, 268 Mo. 217, 186 S.W. 1078 (use of an entire "public square" for public school purposes), and Price v. Thompson, 48 Mo. 361 (extension of a city street through a tract dedicated to park purposes), clearly constituted diversions or misusers.
Plaintiffs argue that the street widening plan is not desirable from a practical standpoint; that it would require the expenditure of county funds; that the 24' strip would no longer be accessible to the general public; that there would be a loss of approximately 16 percent of the Square's area, of 19 trees, of 7' of outer sidewalk and of 16 parking spaces next to the Squares. However, having sustained the county court's power to grant the easement (and no fraud, bad faith or abuse of discretion being involved), we do not consider matters relating to the county court's exercise of its administrative discretion. See 20 C.J.S., Counties, § 51, p. 806.
The Judgment is affirmed.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.