Spicer v. City of Goldsboro

Barnhill, J. Tbe defendants contend witb some force, and tbe citation of authority, that plaintiffs have no legal right to maintain this action. We may, however, pass that question without decision and come to tbe crux of tbe case. Are issues of fact raised by tbe pleadings and, if not, does tbe evidence offered disclose, as a matter of law, that tbe area between tbe paved portions of Center Street from Chestnut to Spruce has been dedicated for use as a public park? We are constrained to answer each question in tbe negative. This cause was beard on evidence offered by plaintiffs plus pertinent excerpts from tbe official minutes of tbe governing board of defendant municipality. Defendants do not challenge tbe truth of plaintiffs’ evidence except as to tbe conclusions they seek to draw therefrom, and tbe authenticity of tbe minute records is not controverted. Where tbe facts are undisputed and admit of but one legal interpretation or can lead to but one conclusion, tbe question of intention and dedication is one of law. 16 Am. Jur., 424; Marion v. Skillman (Ind.), 26 N. E., 676, 11 L. R. A., 55, Anno. 129 Am. St. Rep., 578. It is true plaintiffs allege tbe action of defendants in directing that tbe area in question be prepared for paving was arbitrary and capricious. But this is a conclusion unsupported by evidence. The aldermen bad tbe authority to act. They spoke in respect to a matter within tbeir exclusive jurisdiction. It is presumed they acted in good faith. No fact or circumstance which tends to rebut that presumption is made to appear. Hence, in respect thereto, there is no issue of fact to be submitted to a jury. Subject to the superior right of tbe railroad company, what is now known as Center Street in Goldsboro has been maintained by tbe municipality and used by tbe people as a public way or street for approximately 100 years. In 1925 tbe town acquired all tbe land embraced therein in fee and proceeded to make such use thereof as existing necessities re *561 quired. That it is a street subject to the legislative and administrative control of the town was determined as early as 1911. R. R. v. Goldsboro, 155 N. C., 356, 71 S. E., 514. Eoads and streets are frequently laid out or dedicated with reference to future requirements as well as with reference to existing conditions .or needs. There is no rule of law which demands that all land acquired for such purpose must be converted immediately to use for travel. lienee, mere nonuser, or temporary user for other purposes, of a part thereof is insufficient to show an abandonment. Basic City v. Bell, 114 Va., 157, Anno. Gas. 1914 A, 1031. Here defendant town paved two strips each 21 feet wide along the outer boundaries of so much of Center Street as lies between Chestnut and Spruce Streets. There are shade trees on that part which lies between the two roadbeds thus constructed. Shrubs and grass were added to give it a park-like appearance. The town officially authorized the creation of a parkway in Center Street between Chestnut and Spruce Streets. On petition of the local Woman’s Club it gave a name to the “small park now being developed in South Center Street.” ' Still later it directed the removal of the trees and shrubs from South Center Street and the preparation of the surface for paving. Thus it appears the official board at all times kept in mind the existence of this area as a part of an existing street. That they did not intend to abandon it as such or to dedicate it to an inconsistent use clearly appears. They in fact did nothing more than create a parkway. A parkway is not a park. It is merely an ornamental part of a street which may be used for recreational purposes. Kupelian v. Andrews, 135 N. E., 502; Municipal Securities Corp. v. Kansas City, 177 S. W., 856; Village of Grosse Pointe Shores v. Ayres, 235 N. W., 829. A municipal parkway is a street of special width which is given a parklike appearance by planting its sides or center or both with grass, shade trees, and flowers. Kleopfert v. City of Minneapolis, 95 N. W., 908; New Cent. Dic.; Webster, New Int. Dic. While a parkway is sometimes referred to as a park, the terms are not synonymous, although each may include certain common features of ornamentation and recreation. McQuillin, Municipal Corporations, 2d Ed., sec. 1384; 44 C. J., 1103. The essential and decisive fact is that a parkway exists when there is a single entire street of which a part is devoted to ordinary purposes of travel and a part to ornamental or recreational purposes. The two portions together constitute a single entire way which has some of the characteristics of a park. Kupelian v. Andrews, supra. A municipality may set off a part of a highway for a particular use, Hagerstown v. Hertzler, 175 Atl., 447, and it is within the power of *562 public officials to beautify space within highway boundaries with lawns, trees, shrubs, flowers, statues, monuments and the like. Ins. Co. v. Cuyler, 283 Pa., 422, 129 Atl., 637. Such action does not constitute an abandonment of that part of the highway which is set apart for a parkway or a dedication thereof to an inconsistent purpose. The area, for its full width, retains its character as a public way subject to conversion into a driveway whenever, in the opinion of the constituted authorities, traffic conditions so require. Village of Grosse Pointe Shores v. Ayres, supra; S. v. Board of Park Com’rs., 110 N. W., 1121, 9 L. R. A. (N. S.), 1045. The contention that the resolution of 5 May, 1946, may not be construed to refer to, or to authorize the removal of trees and shrubs from, the locus is without merit. There are no trees and shrubs in Center Street other than those in the parkway. If the resolution does not refer to these, it is meaningless. Likewise in respect to the resolution of 18 March, 1946, the parkway was the only unpaved part of Center Street. The decision to pave was a decision to pave the parkway area. Other interesting questions are debated in the briefs. However, our conclusion that there has been no dedication of the locus to use as a park as distinguished from a parkway renders discussion thereof inappropriate. The occasion for the destruction of old landmarks and spots of beauty always arouses sentiments of regret, oftentimes actual resentment towards those whose duty it is to act. This we fully appreciate. But that is not the criterion of decision. Whether the time has arrived when necessity demands the exclusively utilitarian use of the locus is for the local authorities to decide. In the absence of abuse of discretion the courts are without authority to interfere. The judgment below is Reversed.