Opinion
No. 2688
September 20, 1955
Appeal from the district court, Fremont County; The Honorable S.J. Lewis, Judge.
For the defendants and appellants the cause was submitted upon the brief and oral argument of W.M. Haight, City Attorney, Riverton, Wyoming.
For the plaintiffs and respondents the cause was submitted upon the brief of Moran and Murphy, Riverton, Wyoming; oral argument by Mr. C.J. Murphy.
POINTS OF COUNSEL FOR APPELLANTS.The cases generally hold that a public highway cannot be laid out by the municipality upon park lands, meaning by public highway a part of the street system of the municipality as distinguished from park roads established to give the public access to the different parts of the park. 18 A.L.R. 1248. A portion of a park may be taken for making roads which are essential to the public's full enjoyment of the park. The principle that a public highway cannot be laid out by a municipality from park lands, meaning by public highway a part of a general street or highway system as distinguished from the park roads established to give the public access to the different points in the park is supported by many decisions. 18 A.L.R. 1248, 63 A.L.R. 486. Except in some jurisdictions, a private citizen or resident of a municipality has no right of action by reason of the diversion or appropriation of public property such as parks and squares to other uses where he has not sustained or is not threatened with any special injury peculiar to himself, as distinguished from the rest of the public, but he does have such a right where he does sustain special injury; and ordinarily the owners of property abutting on a park or square have such a special right to insist that it shall be appropriated to other uses. 64 C.J.S. 310. Injunction is not a matter of right and will not be issued when, upon a broad consideration of the situation of the parties, good conscience does not require it. A party may forfeit his right to an injunction by sleeping on his rights and allowing a grievance to continue for a long time. Joyce on Injunctions, 42 at page 84. Notwithstanding one or two decisions to the contrary, the better doctrine and that supported by the weight of authority is that, under some circumstances, taxpayers may be estopped by reason of new equities arising by long delay if acts of accession with full knowledge are imputable to them. Sec. 263, Lewis and Spelling, on Injunctions. The court lends its aid only to the vigilant, active and faithful. Unreasonable delay and mere lapse of time independently of any statute of limitations constitutes a defense in a court of equity where plaintiff's grantors stood by and permitted defendant to build on an adjoining lot in violation of restriction of his deed, an injunction to restrain the further maintenance of the buildings was denied to plaintiff and he was left to his remedy at law. 22 A. 832.
POINTS OF COUNSEL FOR RESPONDENTS.A dedication is express where there is an express manifestation on the part of owner of his public purpose to devote the land to a particular use, as, for instance, where the intent to dedicate is manifested by deed, or by explicit, oral or written declaration of the owner, manifesting the purpose to devote land to a public use. 26 C.J.S. Dedication, Sec. 14. A judgment in rem, has been said to constitute an exception, as to the property involved, to the rule, that a judgment is binding only on the parties to the action and their privies. Thus, with respect to the res or status within the jurisdiction of the court a judgment in rem generally has been held to be conclusive and binding upon all the world, that is, on all persons who may have or claim any right or interest in the subject matter of the litigation, whether or not they were parties to, or participants in, the action at least to the extent that it adjudicates or establishes a status, title, or other res constituting the subject matter of the action. It has frequently been held that decrees in rem are conclusive evidence against all the world of the facts on which they were based, as well as on the status or title of the res and that it will operate as an estoppel, in a subsequent action, in respect of the points or questions adjudicated. 50 C.J.S. Judgments, Sec. 910. If the donees of dedicated land fail or refuse to accept the dedication, the grantor is entitled to the land as the title has never passed out of him. In case of an abandonment after acceptance, the rights of the public therein fail and a reversion takes place, as the dedication has spent its force when the use ceases. 26 C.J.S. Dedication, Sec. 64. The municipal authorities have power to devote park purposes to purposes which are proper park purposes or consistent with purposes of its dedication; but it is generally held that they cannot divert park property from park purposes or the purposes of its dedication. 144 A.L.R. 486; Rayor v. City of Cheyenne (Wyo.), 178 P.2d 115, 118. The view has been taken that the interest in a public park of a resident taxpayer who is one of the cestuis que use for whom the park dedicated to the use of the public is held in trust is sufficient to enable him to maintain a suit in equity to prevent the diversion of the park to private uses. It is generally recognized that owners of property adjacent to or abutting upon a public park have a special interest therein, distinct from that of the general public, which enables them to maintain a suit to enjoin the misuse of the park. Application of the rule is not confined to abutting owners in the strict sense. A resident in close proximity to a public park may under some circumstances be considered an adjacent proprietor. Special damage or injury to abutting owners is not an essential to their right to enjoin the misuse of a public park, since equity will interpose to restrain the violation of a trust by municipal authorities by preverting the purposes of dedication. The general rule, however, requires injury to the rights of abutting owners as such, distinct from injury common to all the public. 39 A.J. Parks, Squares and Playgrounds, Sec. 47. Generally speaking, title to property dedicated or devoted to a public use cannot be acquired by prescription or adverse possession. Title to such property cannot be acquired by adverse possession as against the public or as against the state or political subdivision thereof, such as a county. Tissino v. Maurakis, 228 P.2d 106.
OPINION
The defendant, The City of Riverton, acting by and through its Mayor, E.H. Steffy, and its City Council, composed of Paul Hughes, J.L. Long, W.A. Jarvis, Percy Chopping, James Granger and R.F. Noah, passed a motion that "the road going through the City Park be opened." Assumably in furtherance of that purpose three trees and a telephone pole which were at a point closely approximating the intersection of the center line of the city's main street and the west boundary of the park were removed. In consequence, the plaintiffs, Fred D. Stratton and Joe Vincent, brought this action securing a perpetual injunction, enjoining and restraining "The City of Riverton, its officers, agents or servants * * * from opening a through road or street for public use across said public park in the Park of The City of Riverton * * *." (Emphasis supplied.) Appealing from that order, the city asserts (1) plaintiffs have no standing or right to maintain the action; (2) that the proposed road was in an undedicated part of the park; (3) that the proposed road was an access road and not a through street or part of the city's street system; (4) that by public use the road had been dedicated to the public; and (5) that plaintiffs were guilty of laches.
Both plaintiffs are residents and taxpayers of Riverton. One has his residence across the street from the park; the other resides about four blocks away. As such residents and taxpayers they were qualified to bring the action. It was not necessary that they allege or prove special damage. 39 Am. Jur., Parks, Squares, and Playgrounds, § 47, p. 841; McIntyre v. Bd. of Commissioners of El Paso County, 15 Colo. Ct. of App. Rep. 78, 61 P. 237; 26 C.J.S., Dedications, § 68, p. 160; Douglass v. City Council of Montgomery, 118 Ala. 599, 24 So. 745.
In a prior action one of the instant plaintiffs and another person were plaintiffs, and the City of Riverton and its officers were defendants. Plaintiffs had alleged and the defendants denied that the whole area of the "City Park" here in question was dedicated as a public park without reservation, to the use of the public. In that action the court granted a perpetual injunction, finding that "the allegations of the petition are true in manner and form as said Plaintiffs in their said petition alleged." No appeal was taken and the status of the park as a dedicated city park was thus judically determined.
Although the parties in the two actions are not identical, the issue in the earlier action as to the park's dedication was one of general and public interest and related to public property. The plaintiffs in both cases were residents and taxpayers similarly situated, and the city and its officials in each case were defendants. This is enough to make the judgment in the prior case conclusive of the matter here and res judicata. See 50 C.J.S., Judgments, § 796 (b), pp. 338, 339. The finding that the park in question had been dedicated without reservation as a public park for the use of the public, constituted the order of perpetual injunction, a judgment in rem, determining the park's status as a dedicated public park. It was binding upon and conclusive of the matter to all the world.
50 C.J.S., Judgments, § 910-c (3), pp. 553, 554, says:
"A judgment in rem has been said to constitute an exception, as to the property involved, to the rule, discussed supra § 820, that a judgment is binding only on the parties to the action and their privies. Thus, with respect to the res or status within the jurisdiction of the court, a judgment in rem generally has been held to be conclusive and binding `upon all the world,' that is, on all persons who may have or claim any right or interest in the subject matter of the litigation, whether or not they were parties to, or participants in, the action, at least to the extent that it adjudicates or establishes a status, title, or other res constituting the subject matter of the action. It has frequently been held that decrees in rem are conclusive evidence against all the world of the facts on which they were based, as well as on the status or title of the res, and that it will operate as an estoppel, in a subsequent action, in respect of the points or questions adjudicated. * * *"
The evidence fails to sufficiently support appellant's claim that the public acquired prescriptive right to "the road going through the City Park." Furthermore, it is more than doubtful that the public's use for road purposes of a portion of the lands dedicated for its recreation, pleasure and amusement could amount to that adverse user which is necessary to defeat that same public's right to its use for the purposes contemplated by the dedication.
As we do not agree that the road in question was established by prescription, there can be no issue of the plaintiffs' laches.
The finding that the proposed roadway "was a through street and a part of the street system, to-wit, Main Street in the City of Riverton", rather than an access road, is supported and justified by the admission of the city's mayor, who was called and testified as a witness in the city's behalf. On cross examination he stated that one of the prime reasons for opening the park road was to permit people who live east of the park to drive directly downtown, so that it would not be necessary for them to go out of their way around the park. Consequently, the court having found that the road to be opened would in fact be a through street, the decision rendered was wholly in accordance with Rayor v. City of Cheyenne, 63 Wyo. 72, 178 P.2d 115. Under these circumstances we find no merit in the appeal. However, we feel constrained to observe that the injunction is conservatively limited "from opening a through road or street for public use across said public park * * *". This does not preclude the city from establishing such access road or roads as will not ordinarily be used for through travel. It occurs to us that the way in which this may be accomplished in order to serve the city's purpose to provide rest rooms and other desired facilities within the park, should not present a difficult problem.
The order and judgment of the lower court is affirmed.
Affirmed.
RINER, C.J., and BLUME, J., concur.