Untitled Texas Attorney General Opinion

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OF TEXAS AUUTIN H. T-xcxAs PRICE DANIEL ATTORNEY GENERAL July 10, 1952

Hon. Enos T. Jones Opinion No. V-1474 County Attorney Floyd County Re: Legality of selling or Floydada, Texas exchanging real property dedicated to Floyd County Dear Sir: for park purposes. You have req,uestedan opinion of this office on the following question: "Where a tract of land was dedicated to Floyd County as a park for the use and benefit of the public as part of the plat of the townsite of the town of Floydada (Floyd City), and has been so ,usedas a park during most of the time since such dedication, does the city council of the city of Floydada have authority to sell or exchange such park site to the First Methodist Church, Floydada, for the old church building and grounds in such city, under the provisions of Article 1017, Re- vised Civil Statutes of the State of Tex- as? 'g, does either the Commissioner's Court, acting under the authority of Arti- cle 1577, RCS or the City Council and the Court acting jointly have such authority? "And, if yo~ufind that the city and/ or county have such authority, Is It neces- sary to have the election provided for in Article 1019, RCS?" The case of City of Tyler v. Smith County, 246 S.W.2d 601 (Tex. Sup. 1952) involved a dispute between Smith County, the City hf Tyler, and indivi- dual property owners, as to their respective rights in the square in the City of Tyler. The facts showed that a portion of the square was used for courthouse purposes, and the remainder used by the public as a parking lot, marketing place, gathering place for

Hon. Enos T. Jones, page 2 (V-1474)

public meetings, and similar purposes. The co,urt held that the facts showed that the square as a matter of law had been dedicated to public use and cannot now be diverted to private use. We quote the following: "There seems to be a well defined dis- tinction between courtho,usesq'uareand pub- lic square. For Instance, In State v. Travis County, 85 Tex. 435, 21 S.W. 1029, there were many lots and blocks in the City of Austin which belonged to the Repub- lic of Texas when the city site was origi- nally platted. Some of them were reserved for public uses, and an agent of the Repub- lic marked them on the map designating the particular public use to which each was to be devoted. The north half of a certain block was marked 'Courthouse' while the south half was marked 'Jail.' Some time later Travis County erected both a co,urt- house and a jail on the places indicated. In 1876 this site was abandoned and a court- house and jail were erected on other lots. The county then rented the old block for use by a lumber yard and'later filed suit for rents due. The state intervened, claiming title to the block. This court held that the block having been dedicated to the limit- ed purpose of a courthouse and jail site and that use having'been abandoned, the block reverted to the state. But in course of the opinion It was said: 'If the land had been dedicated unqualifiedly to public uses --if, for Instance, the words "Public Park" had been written upon the plat instead of the words "Courthouse" and "Jail," we think the public, as well as the purchasers of adjacent lots, would then have acquired rights In the property beyond the power either of the state or county to divert or affect.' "There can be no do,ubtthat the public accepted the dedication. They used It as a market place, as a parking place, as a place for entertainment and rest, as a place for preaching services and political meet- iw, as a place to get water for themselves and their stock, and according to undisputed

Hon. Enos T. Jones, page 3 (V-1474)

testimony, they use it today as a 'place of enjoyment and rest', 'to enjoy the roses, shrubbery and various landscaping that has been put there'. According to the weight of authority, this establishes acceptance, and we so hold. 16 Am. Jur., Dedication, Sec. 35, P. 383.

phasis added.) The dedicating deed accompanying your request was executed in 1890. It recited that the dedicator granted and conveyed "unto Floyd County for the use of the public the following dedicated property to wit: All the streets, alleys and arks and Court House Square in the town of Floyd City P now Floydada as shown by the above plat. . . To have and hold txe above dedicated premises, for the use of the public forever." Assuming that the conveyance of the park to the city was intended to vest the title In trust for a future incorporation of the townslte and that title became vested in the municipality upon the incorpora- tion, nevertheless the city of Floydada does not have the authority to enter into the proposed agreement. Articles1017 and 1019 V.C.S. constitute the only authority of the city to dispose of park property. Article 1017 provides, in part: "The governing body of any Incorporated city or town in this State, however incor- porated, may sell and convey any land or interest in land owned, held or claimed as public square, park or site for city hall or other municipal building, and abandoned

Hon. Enos T. Jones, page 4 (V-1474)

parts of streets land alleys, together with all improvements on any such property owned by any such city or town. The proceeds of any such sale shall be used only for the acquisition and improvement of property for the same uses as that so sold . . ." Assuming arguendo that the above statute ap- plies to the property in question, we are nevertheless of the opinion that it does not authorize the exchanging of property for a different use from that which is sold. Under the facts submitted in your request, the land in question has been dedicated to the public for park purposes and the public has accepted the dedication. We agree with YOU that under these conditions the land must-remain for the use of the public for park p'urposes. In,City of Fort',Worthv. Burnett, 131 Tex. 190, 114 S.W. 2d 220 (1938) the court held that a public .library could not be iullt on's tract of land dedicated to the public lor park purposes, for this would constitute a diversion of the use intended by the dedication. Under this holding the construction of a building to be used as a civic center would also be a diversion. If such a building could not be placed on the present site, it is clear that the exohange of the property for a site on which such a building is located would not be devoting the nroceeds to the aca,uisitionof vronerts "for the same uses as that so sold." Indeed; there-is language in City of Tyler v. Smith County, supra, Indicating that Article 1017 does not authorize a city to sell park pro- perty which has been acquired through-dedication, but in view of the holding In City of Fort Worth v. Burnett, supra, we need not decide-this particular question be- cause clearly the statute aoes not authorize an exchange of property for a different use from that sold. SUMMARY Land dedicated to the public for park purposes cannot be diverted for any other purpose. It must remain for the use of the public for park purposes and cannot there- fore be sold or exchanged. Cit of Fort Worth v. Burnett, 131 Tex. *.2d 19 ,

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Hon. Enos T. Jones, Page 5 (V-1474)

220 (1938); City of Tyler v. Smith Co,unty, 246 S.W.2d 601 (Tex. sup. 1952). Yours very truly, APPROVED: PRICE DANIEL ~ Attorney General J. C. Davis, Jr. County Affairs Division E. ~Jabobson Reviewing Assistant Assistant Charles D. Mathews First Assistant

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