Jones v. Mayor of Jackson

Cook, J., delivered the opinion of the court. Mrs. Jones, a citizen of Jackson, filéd a bill in the chancery court of Hinds county, first district, seeking an injunction against the mayor and board of aldermen of the city of Jackson to restrain the board from erecting a library building' on Smith Park, in the city of Jackson. The state of Mississippi intervened in this case, and was made a party complainant by an order.of the chancellor, and filed its bill in the case, setting up its claim and title of the state to this open square or park. It is the contention of the state that the state is the owner in fee of Smith Park, and that it has never parted with its title, and dominion and control over the same. It is submitted by the -state that, if it is mistaken in this, the erection of a library on this lot is a perversion of the purposes for which it was dedicated by -law. By an act of the Legislature of date February 12,1821, commissioners were appointed to locate two sections of land in a country lately ceded to the United States by the Choctaw Indians as soon as the same may be surveyed, — 472 — for the purpose of a seat of government for this state. On November 28,1821, an act amendatory to the act of February 12, 1821, was passed by the legislature, which provided that certain commissioners therein mentioned were authorized and empowered to locate a permanent seat of government in the east halves of sections 3 and 10 and the west halves of sections 2' and 11, in township 5, range 1 east. By this act the commissioners were authorized and empowered to lay off a town on such part of the location so made, and on such plan, as to the commissioners might seem most advisable, providing, further, that the town so laid out should be called by the name of Jackson, in honor of Maj. Gen. Andrew J'ackson. On June 30,1822, the legislature passed an act approving the previous acts upon this subject and establishing the town of Jackson. In section 2 of said act the commissioners were directed to cause a copy of the plan of said town to he recorded in the office of the clerk of the county court, or in that of the register of the probate court, of Hinds county, and another copy to be certified, signed, and deposited in the office of the secretary of state. Various acts were thereafter passed, providing for the sale of lots in the town of Jackson, and for the erection of the Capitol and executive mansion, and establishing a state penitentiary. Afterwards, on February 16, 1838, by an act of the Legislature entitled “An act to dispose of the unsold land donated for the seat of government” (Laws 1838, p. 269), the secretary of state, auditor of public accounts, and treasurer of the state were appointed commissioners to cause to be made a survey and plat of all unsold lots belonging to the state of Mississippi embraced in the donation made by the general government to this state for a seat of government, including the blank squares, and to sell the same, “except such blank squares as the said commissioners,, together with the governor and the commissioner of public buildings shall select, as necessary to — 473 — he reserved as commons, for the health, ornament, and convenience of the city of Jackson.” It is also provided in this act that a plat shall he made by said commissioners and entered of record in the clerk’s office of the police courts of the counties of Hinds and Bankin. It will be observed that the legislature of the state was laying out a town, and making maps thereof, and disposing of said lots to private owners, and generally providing for the sale of all of the state’s property within the limits of the city of Jackson, except that part which had been reserved for state purposes and the blank squares dedicated to the use of the public. We are called upon to construe section 1 of the Act of February 16, 1838, or rather that particular clause reading: “Except such blank squares as the said commissioners, together with the governor and commissioner of public buildings, shall select, as necessary to be reserved as commons, for the health, ornament, and convenience of the city of Jackson.” The learned assistant attorney-general earnestly and' forcibly insists that the only purpose of the act of February 16, 1838, was to provide for the sale of lots, and to reserve certain blank squares from the sale, including the square known as “Smith Park,” the subject of .this controversy; that the language above quoted cannot be construed as a grant or donation to the city of Jackson, but was intended merely as a reservation of blank squares to be selected by the commissioners from the general sale of city lots belonging to the state, and that the squares so reserved remain the property of the state, to be disposed of as the legislature may elect. The city of Jackson, on the other' hand, contends it was the intention of the legislature to donate the excepted squares to the city. We think the state is correct in its position that there was no grant or donation, but incorrect in so far as it contends that the state has now the complete dominion and control of the square called Smith Park. We can — 474 — perceive no difference in the state’s action in the premises from that of a private owner of land, who surveys land for sale, providing for streets, alleys, and parks, or commons, and selling lots with reference to the plat of the survey. We do not believe it would be seriously contended that the legislature could close all the streets and alleys of the city of Jackson which were laid out in the original plat of the city, and we think it equally as clear that it cannot be maintained that the state now has the right or power to take charge of the square in question and close it to the public. When the state ordered a survey of all blank squares into lots, except such as might be selected “as necessary to be reserved as commons, for the health, ornament, and convenience of the city of Jackson,” and decided that a map should be made showing the reserved “commons,” this was a dedication of the reserved squares to the use of the public, and is irrevocable, so far as the dedicator is concerned. As a matter of fact, the square known as “Smith Park” was selected by the commissioners and is shown on the map as a “Promenade,” and since its dedication the state has made no claim to domain over or control of the same. It -may be, and probably is, true that the state is the owner of the fee, and if the city should abandon its use as a commons, or close the square to the public, the same would revert to the owner of the fee — the state. There has never been a grant to the city; merely a dedication of the square for a commons was made, and it must remain a commons forever and be kept open to the public as such, and if the city is now attempting to use it for some other and different purpose, the dedicator has the right to invoke the aid of the courts to restrain the city from executing this unlawful purpose. We come now to a discussion of the alleged attempt of the city to divert the square to a use which was not contemplated by its dedication. Would the erection of a public library upon this square be inconsistent with — 475 — its use .as a commons for “the health, ornament, and convenience” of the public? The state directed the commissioners designated to sell its lot® to select certain squares, and when so selected the squares were to be reserved “as commons for the health, ornament, and convenience of the city of Jackson.” A common is a piece of ground left open for common or public use, for the convenience and accommodation of the inhabitants of the town. ’ ’ Am. & Eng. Ency. of Law, vol. 6, page 232. There is some conflict in the authorities as to when the erection of a building on land dedicated to specific uses will be regarded as a violation of the terms of the dedication. Taking into consideration the time when the state dedicated this square, and the uses to which it was dedicated, we think it was the intention that the square was to he kept open for the use of all the people, and that this was the construction placed upon the act by the commissioners appointed to carry out the purpose of the dedicator is manifested by the designation of the square as a ‘ ‘ Promenade. ’ ’ ‘ ‘ "Whether or not a particular use of land dedicated for squares, parks, and commons amounts to a diversion from the uses for which it was dedicated depends upon the circumstances of the dedication and the intention of the parties making it, and is therefore largely a question of fact.” The authorities with reference to this principle are collated in the note to Codman v. Crocker, 25 L. R. A. (N. S.) 980. In some of the cases it is held that it would not be a violation of the deed of dedication to erect a museum and library upon lands dedicated to park purposes; in others it is held that schoolhouses, courthouses, and other public buildings cannot he erected upon lands dedicated to uses ■as a public park. In fact, there is a great diversity of opinion upon this identical question, and the courts seem to have decided according to the varying views of the judges composing the courts rendering the decisions. The — 476 — test, at last, is the intention of the dedicator of the property, to be determined by all of the surrounding circumstances and the terms of the dedication. A contemporary construction of the act of the legislature certainly has some significance, and we think affords a safe guide for the interpretation of the legislative will. If a public library may be erected upon one corner of this lot, and a ^public museum upon another corner of the lot, according to the holding of some of the courts, it is manifest that its characteristics as a commons would be destroyed. It is hardly probable that the dedicator had the prevision to anticipate the advent of a Carnegie Library. The dedication was made seventy-five years ago, and while the legislature evidently dreamed of and hoped for the day when Jackson would become a city in fact as well as in name', it cannot be said that they looked to the erection of libraries and museums upon this small plat of ground labeled ‘‘Promenade” upon the map. In endeavoring! to construe the dedication according to the intention of ■the dedicator, it is believed that the chief officers of the state appointed to select and plat the state’s property were in touch with the legislative mind, and when they designated the square in question as- a “Promenade” — a walking place for the public — this designation affords a means whereby we can now interpret the language employed by the act. In Rowzee v. Pierce, 75 Miss. 846, 23 South. 307, 40 L. R. A. 402, 65 Am. St. Rep. 625, this court held that a schoolhouse could not be erected upon land dedicated to an ornamental park, and it seems clear to us that this court then construed the deed of dedication strictly according to its terms, and the reasoning of the court in that case supports the view we take of this case. It is difficult to distinguish a schoolhouse from a library — the one is for the use of school children, the other for the use of a limited number, whatever may be the theory to the contrary. — 477 — We conclude that the chancellor erred in refusing the injunction in this case, and the judgment is therefore reversed, and a judgment here will he entered granting the injunction prayed for. Reversed.