Head-Lipscomb-McCormick Co. v. City of Bristol

Prentis. J., delivered the opinion of the court. The Head-Lipscomb-McCormick Company, Inc., appellant, complains of a decree which sets aside and annuls a conveyance of what may be called the northern end of the Gauthier property, conveyed to it by the city of Bristol. After the conveyance, the city filed its bill, alleging that its contract and deed pursuant thereto were ultra vires and void for lack of power to convey, and certain citizens and taxpayers of the city, who felt aggrieved, were allowed to file their petition and were admitted as parties complainant. — 671 — For the better understanding of the facts of the case, a plat of the property involved is herewith printed: — 672 — It appears that the city already owned the land shown on the plat bounded south by Cumberland street, west by Lee street, east by Water street and north by the Gauthier property, the dividing line between the two properties being indicated by dotted line running from Lee to Water street about fifteen feet south of Court street. The city council desiring to build a new courthouse, and finding that it needed more property for that purpose, bought the Gauthier property, which constituted the rear or northrn portion of the block lying between Cumberland, Lee, Terry and Water streets. There was at that time upon the north end of the Gauthier property a two-story brick factory building, and this building still stands. Since buying the property the city has erected its courthouse as indicated on the plat, extending the rear of the building over upon the Gauthier property, curbed the square thus occupied by the courthouse building, and has opened, paved and dedicated Court street, twenty-five feet- wide, in the rear of the courthouse, upon the Gauthier property, which was acquired in 1908. At one time certain cages were put in what is called the annex of the Gauthier building, and used temporarily as,a jail; but this proving unsatisfactory, the city has since bought and erected a jail on a lot on the east side of Water street opposite the Gauthier building. The Gauthier building has been, leased to a tenant during the time of the city’s ownership, and, as indicated, the property was sold and conveyed to the appellant in April, 1919, the dividing line being the northern line of Court street. The trial court set aside the conveyance, adjudging it to be null and void. It is necessary first to determine the powers of the city of Bristol as to this real estate. This is a question of law, and that having been determined, there arises a question of fact. The city relies chiefly upon Code 1919, section 2854, which — 673 — provides: “There shall be provided by the board of supervisors for every county and the council for every city, a courthouse, clerk’s office and jail, the cost whereof and of the land on which they may be, and of keeping the same in good order, shall be chargeable to the county or city, and the supervisors of the county or the council of the city, may purchase so much land as, with what it has, will make two acres, whereof what may be necessary for the purpose, shall be occupied with the courthouse, clerk’s office and jail and the residue planted with trees, and kept as a place for the people of the county or city to meet and confer together; * * * * and shows that the area of the property thus acquired by the city for the courthouse and jail is less than one and one-third acres; and claims that this statute is restictive and marks the limit of the city’s power as to this property. Section 28 of the charter of the city of Bristol (Acts 1908, p. 468), however, empowers the city council, by a two-thirds vote, “to buy, lease, sell, or otherwise dispose of any and all real estate that is or may be owned by said city,” and provides that the council “shall have the right to donate and convey the same, or any part thereof, to manufacturing industries that may be located in said city, and may make such ordinances and by-laws relating to the same as they sba.ll deem proper * * * [1, 2] The general rule is that the charter or legislative act is the source of power as to the property rights of municipal corporations, and that when silent the implied power exists to acquire and alienate property. This general rule is subject to the qualification stated by Mr. Dillon thus: “Municipal corporations possess the incidental or implied, right to alienate or dispose of the property, real or personal,, of the corporation, of a private nature, unless restrained, by charter or statute; they cannot, of course, dispose of property of a public nature, in violation of the trusts upon — 674 — which it is held, and they cannot, except under valid legislative authority, dispose of the public squares, streets, or commons.” 3 Dillon Mun. Corp. (5th ed.), section 991. 3 McQuillin Mun. Corp., section 1140, states the same rule and says this: “All property held by the city in fee simple, without' limitation or restriction as to its alienation, may be disposed of by the city at any time before it is dedicated to a public use. In other words, the city has the right to sell or dispose of property, real or personal, to which it has the absolute title and which is not affected by a public trust, in substantially the same manner as an individual unless restrained by statute or charter; and this power is an incidental power inherent in all corporations, public or private. Thus, land held by thé city in full use and ownership—e. g., commons acquired by confirmation under act of Congress— may be sold when no longer needed for public use. So land bought for a public purpose, if not actually so used, cannot be said to be affected by a public trust, and hence may be sold.” 1 Devlin on Real Estate (3d ed.), section 348a, recognizes the same doctrine, and says that “When title is vested in a municipal corporation by deed, without limitation or restriction as to its alienation, the property may be conveyed at any time before it is dedicated to a public use.” [3] While at common law a municipal corporation could, unless restrained by its charter, dispose of its lands and other property just as private individuals could, in this country it is generally held that a municipal corporation has no implied power to sell property which is devoted to a public use, but property of which the public use has ceased, or which has never been devoted to any public use, may be sold by the municipality owning it, by virtue of its implied power. 19 R. C. L. 773. A leading case on the general subject is Ft Wayne v. Lake Shore Mich. Southern R. Co., 132 Ind. 558, 32 N. E. 215, — 675 — 18 L. R. A. 367, 32 Am. St. Rep. 277. There the city had purchased land for a park, but before it had been actually dedicated to the public, conveyed part of it to a railroad company for a yard, shops and depot grounds, and the conveyance was upheld. The court uses this language: “Municipal corporations cannot dispose of property of a public nature in violation of the trusts upon which it is held, nor of a public common; but there is a distinction between property purchased for a public common and not yet dedicated, and property which is purchased for that purpose a,nd actually dedicated to that use.” In the case of Beach v. Haynes, 12 Vt. 15, land had been purchased for a public common, and it was so expressed in the conveyance, but before it was actually appropriated to that use it was conveyed by the town, and it was held that such a conveyance vested a good title in the grantee; which in the later case of State v. Woodward, 23 Vt. 92, it was held that a municipal corporation could not convey away a public common after it had been actually dedicated to the public use. In Palmer v. Albuquerque, 19 N. M. 285, 142 Pac. 929, L. R. A. 1915A, 1107, the same rule is enforced. There the city of Albuquerque had acquired the land for the purpose of erecting a city hall thereon, and raised and expended $29,-000 in the erection of the building, but not having completed it, and finding itself without sufficient funds to complete it, borrowed from a bank and proposed to convey the land to the bank, including the city hall building which was in the course of construction, upon condition that the bank should permit the city to complete the building in accordance with the plans and specifications theretofore adopted, that the bank would furnish the money necessary to complete it, not to exceed $25,000, and that the city should have an irrevocable right to repurchase the premises from the bank at any time within ten years from the date of the conveyance for — 676 — the amount actually paid by the bank in the completion and furnishing of the building. There were other provisions for the adjustment of accounts, between the city and the bank, and for the leasing of the building by the city and the payment of rent therefor. This contract was upheld. [4] While, generally speaking, property devoted to a public use cannot be.sold or leased without,special statutory authority, still when such use of the property has ceased and it is no longer needed, it may then be sold or leased as the public welfare may demand. Ogden v. Bear Lake, etc., Co., 18 Utah 279, 55 Pac. 385, 41 L. R. A. 310. While municipal corporations have no power to dispose of property of a public nature, in violation of trusts upon which it is held, there is a distinction between property purchased for a public use and not yet dedicated, and property purchased for that purpose which has been actually dedicated. Dedication, in this connection, has a definite meaning. It means: Devoted to the public use; set apart for the public use; given over to the public use; appropriated for the public use. In Konrad v. Rogers, 70 Wis. 492, it appears that under authority to purchase land for city hall and lock-up, the council bought a lot for $275, and it was conveyed to the city; that subsequently the council bought another lot for $1,000 and conveyed to the vendors thereof the lot previously purchased for the sum of $300 in part payment for the new lot; and it was held that the council had the power to make such new purchase and to issue orders on the city treasury for the balance of the purchase'money. The additional inquiry of fact here then is whether or not that part of the Gauthier lot which had been sold and conveyed to the appellant has ever been devoted to public uses. [5] It is claimed for the city that inasmuch as the statute (Code 1919, section 2854) authorizes the purchase of two acres, and the land purchased was less than two acres, the mere purchase operates as a dedication to public uses; and — 677 — that this is still further manifested by the resolution of the city council authorizing the purchase for the new courthouse. On the other hand it is claimed that the city did not need all of the Gauthier property, but was forced to buy it all, because the owner would not sell a part. That it was clearly understood between the parties that the city did not immediately need all of the Gauthier lot for the erection of the new building is apparent from the written offer of the vendor which was accepted by the city. This offer shows that the city was to have possession of so much of the lot as the city needed for the purpose of erecting the new building, within thirty days from the date of the transaction, while possession of the remainder of the lot and building was deferred until July 1', 1908. It is said in answer to this, that the city might have condemned what it needed, and was not dependent upon the will of the vendor. While this is true, that does not change the significance of the facts stated as to the possession. The city desired immediate possession of the part which it then needed for the new building. It could get such possession by purchasing, while under condemnation proceedings there would probably have been much greater delay. Then there is the statement by the owner of the property that the price named to the city is less than would have been made to any one else, and this price may have been the inducement to the city council to purchase the entire lot, although needing only a part of it for public use. Then, in pursuing the inquiry as to whether the property conveyed and here involved has ever been devoted to public uses, we find that the city in laying off its courthouse square, stopped the granolithic curbing at the corner of Court street; that the Gauthier building has been occupied by a tenant for many years since the purchase, thus being devoted strictly to private use (except that the annex thereof was used temporarily for jail purposes) ; and that while the two-story brick building remained thereon, — 678 — it was physically impossible to dedicate such land to the public use as a part of the courthouse square. That it never has been so devoted to any such public use is so apparent to us that the mere statement of these facts carries conviction. The question before this court is not whether it was wise or unwise for the city to sell the property. That was a question of public policy for the city council, about which there is a fair difference of opinion. The only question we have to determine is whether or not the city had the power to make the sale. As to this we have no doubt, because of the opinion that the property has never been dedicated to the public use. If it had been so dedicated as a part of the courthouse square and used, as was true in County of Alleghany v. Panfish, 93 Va. 615, 25 S. E. 882, which is so confidently relied upon, then the city could not have made the sale. In that case there was no doubt either about the dedication of the property to public use, or that it was so used at the time the lease was made. So, in Franklin County v. Gills & Johnson, 96 Va. 330, 31 S. E. 507, there was no question as to the public character of the property or its public use, for it was a room in the courthouse of Franklin county, which the defendants, who were merchants, claimed the right as tenants to use as a place for storage of their goods. No such question was raised in either of those cases, as is apparent here, and we do not question their authority in the slightest degree. The city held the property which was sold to the appellant, a two-story brick warehouse, rented to and used by a manufacturer for private business purposes as the tenant of the city in its (the city’s) private capacity. The city has express authority under its charter to sell its real estate thus held, and hence the circuit court erred in annulling the conveyance. There are other questions raised in the record, but in our view those which we have discussed are decisive. Reversed.