
    DERR v. CITY OF FAIRVIEW.
    No. 16770
    Opinion Filed June 1, 1926.
    (Syllabus.)
    1. i\Luuieipal Corporat~ons-_Fub!jc Farks__~ Invalidity of Lease by City for Private Gain.
    Where a public park is by the city dedicated to the public for recreation purposes, the same thereby becomes a publ~ic utility, and so long as it remains such, the city is without authority t~ lease a portion of such park for a period of 2~ years for private gai'n and profit.
    2. ~ame-Liabi1ity of Ci~yJfor Darnage~ to Lessee for F~reib1y ~Tahing Improve-ineits.
    Wherei the city enters into such a lease, and the lessee makes valuable improvements thereon, and thereafter the city forcibly takes possession of such property and usas it to its own benefit and purpctee, the clity is liable for the reasonable value of such property.
    Error from District Court, Major County ; Charles Swindall, Judge.
    Action by Charles T. Dsa-r against tihe City gí Fairview. Judgment for defendant, and plaintiff brings error.
    Reversed -and remanded.
    Twyford & Smith, C. B. Wood, and Tom E. Willis, for plaintiff in error. •
    Carl Kruse, for defendant in error.
   LESTER, J.

The parties appear the same as in the court below. The plaintiff .brought suit agafust the defendant, city of Fail-view, ini the district court of Major county, Okla.. for damages on account of a breach of a certain written contract entered into' between plaintiff and defendant. The defendant interposed -a- demurrer to the plaintiff’s petition, which was by the court sustained. The plaintiff elected to stand upon his petition and judgment was rendered for the defendant, from which the plaintiff prosecutes this appeal to! reverse the same.

The contract between the plaintiff and defendant, upon which this suit was instituted, is in part the following:

“This cctatract and agreement made and entered into this 1st day of .August, 1921, by and between city of Fail-view, a municipal corpckation, party of the first part, and Charles T. Derr, party of the second, wit-ncsseth:
“That for and in consideration of the sum-s to be paid by second party and the covenants on his part to. be performed and as are -hereinafter set forth, the first party hereby contracts and leases unto said second party sit© and ground for a swimming pool to be cctastructed by second party in the southwest corner of the park owned by said first party:
“That said lease contract is to terminate on the 31st day of August, 1946, at which time second party may remove all buildings and material .placed on said property by him.
“That said first party is to furnish to second party waiter not to exceed the sum of six million gallons and! electricity not to- exceed eighteen hundred K. W. per season, for the sum of $37.50, and second party to pay for any additional amount of water the sum of fifteen cents per M. gallons a-nd for each addiuicsnal amount of electricity the sum of ten cents per K. W., said sums to be due and payable to- said first party annually on the 31st day of December.
“It is further agreed that the first party will not grant to any other person, firm or cor-pdration the right to build and operate a swimming pool in said park during the life of this contract. ”

The plaintiff in his petition stated and alleged :

“That said defendant did wrongfully, unlawfully, and against- the will and consent of the plaintiff, cut off the water and electric connections which were being used in the maintenance of the said swimming pool by the -pl-alntiff, and then and there and ever since said time has refused to furnish electric) juice and water a® required' of it under •the terms of said written contract.”

And oto account of such breach, -the plain-itiff -prayed for recovery of, $44,000 judgment against the defendant. Plaintiff in his second cause Of -action further alleged:

"After the~uid defendant had cut off the e~1ectric current and water an~. refused to furnish the same ~s set fontn In the first cause of aeMon o~ this petition, and on to wit, the - day of April, 192~, the said defendant by and tln'oug~h its mayor, city marshal a'nd other offlccw~, did unllawfully, and without the consent and against the will of plaintiff, the true owner, vic~ent1y and by means of force and arms and by means of false keys break and enter into the plaintiff's property as aforesaid an~i take forcible and unlawful possession thereof, and ever since said date has occupied and used the same to the exclusion of the plaintiff and contrary to the plaintiff’s rights, ownership and possession thereof.”

The first proposition to be determined in plaintiff’s first cause of action is whether or not the contract between the plaintiff and defendant was such a contract that was bending and enf&rcible upon the defendant.

Section 4507, C. O. S. 1921, provides that a city inaiy acquire real estate for public park purposes. In the case of Barnes, Mayor, et al. v. Hill, 23 Okla. 207, 99 Pac. 927, syllabus No. 1 in said opinioh is as follows:

“A public park is a public utility within the meaning of that term as used in section 27 of article 10 of the Constitution.”

In the case of the City National Bank of Ft. Smith, Ark. v. Incorporated Town of Kiowa, 104 Okla. 161, 230 Pac. 894, it is said:

“There is a clear distinction, recognized by practically all authorities, between property purchased and held by municipal corporations for the use of tha icorpo’rafciosn as an entity, and that purchased and held by such corporation for the public use and benefit of its citizens. In other wc|rds, its titile to and power of disposition of property-acquired for strictly corporate uses and purposes ara different from its title to and power of disposition of property acquired folr and actually dedicated to the public use of its inhabitants. As to the former class the power of the corporation to dispose of it is unquestioned. The rule is different as to'the latter clniss. It is only wben the public use has been abandoned, or 'the property has become unsuitable or inadequate for the purpose to which it was dedicated, that a pdwer of 'disposition is recognized in the corporation. 19 R. C. L., p. 172, par. 78; Tiedeman on Mun. Corp., sec. 208; 28 Cyc. p. 623, par. 3; 2 Dillon on Mun. Corp., sec. 575. And the granting of a franchise or the making of a contract for the exercise of the public functions to which the property was originally dedicated is not an abandonment. * * * If municipal authorities are thus expressly prohibited from selling an interest in such public utility, eiven for the purpose of effectuating competent management and control, it "must follow indubitably that the larger power of complete disposition is not to be implied. And the reason for this is obvious. It would c(pen a door for the exploitation of the public through collusive sales of municipally owned public utilities. Not that this result would follow in any particular case, but that if might do so, is sufficient reason for the public policy which forbids it.”

In, the case of Nebraska City v. Nebraska City Speed & Fair Associatidn, 186 N. W. 374, it appears that the board of park commissioners of Nebraska City, Neb., entered into a certain agreement with the Nebraska Gi.ty Speed & Fair Association, which agreement was ratified by the city council of the city elf Nebraska. This agreement provided that in consideration óf the Nebraska City SiDeed & Fair Association constructing and maintaining a race track in said park, the board of park commissioners, for 'themselves as such beard and for said city, did grant the said association for a term of 25 years certain grounds which were included in the park owned by the city. In an 'action brought by the city for the recovery cf the premisos, the icclurt said:

“The city had power to grant to appellee a license or concession to hold an said park race-meets, folr short periods of túne, for the entertainment of the public, the same as it might grant a concession for providing refreshments or any other amusement for the public.
“ * * * But it is invalid and void so far as it attempts to give to said Nebraska City Speed & Fair Association the use and control of said race) track and grounds of said park during the times the same .are not used for the purpotee of providing such entertainment. When not so used the supervision, maintenance and control of thei same must be in the city by its proper officers. Upon ceasing to conduct such entertainment or termination by the city of said concession, appellee Nebraska City SpSed & Fair Asso-cimTion would have the right to■ remove all buildings in said park! owned by it, provided such removal did not injure the premises for the use by thei public as a park. The race track, however, should remain uninjured for a public driveway in said .park. The said -nets of appellee in assuming and exercising the exclusive usa, management and control of all that petition of said park south of Table creek was an ouster by it of the public and of the appellant therefrom. Appellant is entitled to recover thei possessiotii of said premises from appellees for use of the same by the public. The finding and judgment should have beien for plaintiff.”

The plaintiff cites the case of Baily v. City of Tolpeka, 97 Kan. 327, 154 Pac. 1014, in which it is said:

“The exclusive character of the privilege conferred is not the basis of any legitimate objection; for, as no cine has a right to engage in the activities referred to except by permission of the city, no one is wronged by the monopoly created. The concessions granted do not amount -to the leasing of any part of the park. State ex rel. Wood v. Schweiekardt, 109 Mo. 496, 19 S. W. 47.”

Thus, it clearly appears from the said c|pinion that 'it does not support the plaintiff’s contention, for the reason that in the instant ease the contract is dearly one of leasing on the part 'of th« city of «. portion of the city park. We are therefore of the opinion that the lease by the city of 'Fair-view to the plaintiff otf a portion of said park for a period of 25 years, in which the plaintiff was given the exclusive night and control of said land so leased, amounted to an otaster of 'the public from said land and premises by the plaintiff. And therefore said lease is invalid; for, if the dry had the right to exclude the public for a period of 25 years from a portion otf the land dedicated to, public uses and xmrposes, it could likewise exclude the public from the entire tract of land so' dedicated to the public use. And we therefore conclude that the court Vas correct in sustaining, the demurrer to the plaintiff’s first cause of action.

Note. — See 28 Oye. p. 628; anno. 18 A. L. R. pp. 1262; 1270; 19 R. C. L. p. 772 ; 20 R. O. L. p. 645; 4 R. C. L. Supp. p. 1371.

We next come to the secotad cause of action contained in plaintiff’s petition, in which hai alleged in part the following:

“That said defendant, by, and through its mayor, city marshal and other clfficers, did unlawfully, and without the consent and against the will of plaintiff, the true owner, • violently and by means of force and arms and by means elf false keys break and enter into the plaintiff’s property as aforesaid and take forcible and unlawful possession thereof, and ever since said date has occupied and usetd the same to the exclusicfa of the plaintiff and contrary to the plaintiff’s rights, ownership and possession thereof.”

It is urged by the defendant in its brief that the püaántiff was a trespasser, and therefor,ei his possession of the portion of •the said park constituted a nuisance, which the city, through aits officers, had the right to abate. To this propositicín we cannot agree. The plaintiff was in peaceable possession of thei defendant’s property, by and through cctasent of thel defendant, and while we held that the contract was invalid, yef the law would not, -under these circumstances, permit the defendant to forcibly take charge of ‘the property placed cln defendant’s lands, use the same to its own benefit, and 'then hold that the plaintiff was without a remedy; 'and while the second cause of action, as pleaded and stated by the plaintiff in his petition, may be subject to .criticism, wa do not think that it is subject to attack by demurrer. The contract between the! .plaintiff and defendant was 'invalid, hut the plaintiff was 'in possession by and through the consent c(f the defendant, and was therefore a licensee, subject to removal by lawful processes of the court, and the defendant was wáthotat authority to take possession of said property and derive benefits thenafrom without remunerating the plaintiff for its reasonable value.

We therefore holLd that the plaintiff is entitled to recover as damages the value of the property taken by the city for its own use and benefit, but that he cannot recover exemplary damages as prayed for in, his petition.

Thai cause is remanded, with directions to .proceed with cause in conformity to the views herein expressed.

NICHOLSON,. O. J., BRANSON, Y. O. J., and HARRISON, MASON, HUNT, and RILEY, JJ.,. concur.  