Daily Development for Friday, September 28, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

PUBLIC TRUST; DEDICATION; PARKS: Deed transferring property to cityE2=80=9Cfor Park purposes only, and none other,E2=80=9C was a common law dedication, and City may not terminate use as a park so long as such use is practicable.

Citizens for the Preservation of Buehler Park v. City of Rolla, 2007 WESTLAW 2246602 (8/7/07)

This contentious matter went to the Missouri Court of Appeals three times.  It still may take a trip to the Missouri Supreme Court, although the opinion strikes the editor as correct and even indisputable.

The Chamber of Commerce of the City of Rolla had created a public park which it maintained in the memory of a popular Chief of Police.  Ultimately, it resolved to transfer the park to the city as part of its parks system, and delivered a deed of the property to the city that stated that the property was transferred for Park purposes only, and none other.  The habendum clause simply said that the property was transferred to the City,its heirs and assigns forever,and contained no condition.  Further the deed stated on its face that the chamber releases any right of entry and any reversionary right it may have in and to [the Park] and releases any right it may have to enforce as a covenant the provision in said deed that said land be used for a park.

The City in fact maintained the property as a park for four decades, long enough to create a reliance interest in its citizens, and ultimately determined to abandon the park use and sell the property to Cracker Barrel.  (A common highwayside retailer in this part of the world.)

A group of citizens challenged the abandonment of the park use and sued to enforce the restriction.  They obtained a temporary injunction.  The trial court initially concluded that the citizens lacked standing to raise the issue as citizens of the City, as users of the Park, or as taxpayers.  The trial court also concluded that the transfer amounted to a transfer of a defeasible fee.  As the interest over had been waived, as well as any other right in the grantor to contest the change in use, one assumes that this meant that the city could do with the property as it wished.   But the plaintiffs appealed.

The first court of appeals, as indicated, affirmed the lack of standing.  Then apparently the injunction was dissolved, but Cracker Barrel had disappeared.  A substantial bond claim was made by the City, and perhaps paid. 

Four years later, another developer appeared, and the City again attempted a transfer of the park property, and a citizens group again brought suit.  This time they were backed by a public interest law firm from St. Louis, which argued (as had the dissent in the first case) that the action by the Chamber of Commerce was a public dedication, creating a public trust,  and that members of the public by definition had standing to enforce the restriction.  The trial court, predictably, denied standing again.  But on appeal, the plaintiffs found a new panel on the Court of Appeals,  which was influenced by the thinking of the original dissenter and reversed.

The Court of Appeals here concluded that the language of the deed necessarily evinced an intent of the Chamber of Commerce to offer a dedication to the City.  The fact that this intent was evidenced by a deed that did not contain the words dedicate or dedication was not significant when the apparent purpose of the deed was to donate property to the City for an identified public use. 

In response to the argument that a defeasible deed was intended, the court noted that in Missouri an express  interest over is necessary to create a fee on condition subsequent and that words expressing duration are necessary to create a determinable fee.  Such language did not appear here, and the fact that the habendum clause, which customarily ought to contain any words limiting the nature of the grant, instead expressed a grant to heirs and assigns forever suggested that there was no defeasance intended.  (Of course, note that the Chamber, in any event, had waived the right to enforce any reversionary interest.   This might not have been necessary, however, if the interest had been a fee simple determinable - the property might have passed directly to the Chamber anyway.  But we know nothing of the trial courts analysis on this point.)

The dedication to public trust language is important, as it may have an impact on interpretation of similar grants in other cases. 

The landowners acts establishing a dedication must be unequivocal, and indicate expressly or implicitly, an intent to establi8hs the publics right to use the land. . . . Absent an actual intention by the landowner to dedicate the property, their conduct may nonetheless manifest such an intention.  In that case, the owner can be prevented from resuming rights over the property if the public has relied upon his manifestations.

Dedication is based upon the theory of a mutually binding contract between the landowner and the public.  A common law dedication is a continuous, irreovcable offer to dedicate, which the dedicator cannot retract. . . This contract is based in the principle of estoppel, rather than an affirmative grant.  Though a dedication generally cannot be revoked, the property can revert to the landowner or to his successors if it is no longer possible to fulfill the purpose of the dedication or if the dedicated use of the property is legally abandoned. . . Impossibility of a dedicated use and abandonment frequently have synonymous meanings.  In this case, the propertys dedicated use has not been abandoned, nor is there any evidence indicating that it is impossible to continue to use the land as a park.  Furthermore, we cannot say that continued use of the property for park purpsoes would be damaging to the public good. . . . . property dedicated for a particular purpose may not be diverte
d to a different purposes.

As indicated, the court went on to hold that a fortiori the appropriate party to enforce a dedication to the public good is the public itself.  So the neighbors had standing as members of the benefitted public. 

The City, of course, argued that there was a deed to the City, not a dedication to public use.  The grantors obviously did not make an express dedication to the general public.  The court found this argument hyper technical and hollow.  The court noted that the City maintenance of the property as a park for 40 years with the Chambers knowledge and acquiescence in indicate of an intent to dedicate, or perhaps operates to preclude denial of such intention. 

Comment 1: There was apparently not much argument on the nuances of estates in land and future interests.   The editor spoke to the appellants counsel - an environmental lawyer who acknowledged that neither he nor, he thought, the opposing counsel, gave much thought to that aspect of the case.  They were fixated on the question of whether the transfer was a dedication, not on the question of whether it was not something else. 

Comment 2: Common law dedication cases have appeared at various places around the country, and if the non profit environmental law firms start exploiting the public trust doctrine aspects of this concept, we are likely to see them much more often.  It is unclear whether there is a difference between a dedication to the public and a dedication to the public at large.  Typically a dedication to a public agency must be accepted, and many jurisdictions have statutes or policies that preclude such dedications if there is not acceptance within an identified period of time.  The issue is moot here, since the City promptly began operating the park, but it is noted that the Missouri court describes Missouri dedications as a potentially unlimited and irrevocable offer. 

Comment 3: For other dedication cases in DIRT, see Township of Middletown v. Simon, 387 N.J. Super. 65, 903 A.2d 418 (App. Div. 2006) (The DIRT DD for 3/6/07)(When lands are sold with reference to a map upon which appear a dedication of certain areas to the public as a park, but there is no immediate acceptance of such dedication, this establishes an offer of dedication that cannot be revoked except by consent of the municipality; therefore, when the affected property is sold, even in a tax sale, it is sold subject to the municipality's right to accept the dedication.); Christiansen v. Gerrish Township, 608 N.W.2d 83 (Mich. App. 2000) (the DIRT DD for 9/16/00)(Dedication of a roadway to the public on a subdivision plat constitutes a "continuing offer" of dedication for as long as 37 years, and public entities acceptance 37 years later is therefore deemed a "timely" acceptance within meaning of common law requirement.); .  St. Charles Parish School Board v. P & L Investment Corpora
tion, 674 So.2d 218 (La. 1996).(The DIRT DD for 11/15/96) (Public may acquire interest in land on which road is built through "tacit dedication," where landowner is aware that public is making permanent improvements in roadway and public uses the roadway for three years).

But compare: General Auto Service Station v. Maniatis, 765 N.E.2d 1176 (Ill.App. 1 Dist. 2002) (DIRT DD for 8/6/02) (An implied dedication of a dead end alley will not be found without substantial evidence of offer and acceptance. The implied offer expires upon the death of the alleged offeror, and acceptance must be manifest by that time.)Stafford v. Klosterman, 998 P.2d 1118 (Idaho 2000).(the DIRT DD for 4/11/01) (Roadway easement depicted on a subdivision plat but not accepted by the county highway district through endorsement of the plat are not public roads; consequently, there is no public right of use.);

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