Slavich v. Hamilton

Application has been made on behalf of the members of the Grand Army of the Republic, the Veterans of Foreign Wars, the American Legion, and other patriotic organizations of the City of Oakland, and the city itself, for the issuance of a writ of mandate to compel the respondent, as chairman of the board of supervisors of Alameda County, to formally execute a contract, duly awarded by the board under public bid, for the erection of a veterans’ memorial hall and building, and to enter into a lease with the city of the property to be used as a site for the proposed structure. [1] The facts present a ease of a public officer refusing to perform a ministerial duty involving no discretion, and mandamus is the proper remedy. (Williams v. City of Stockton, 195 Cal. 743 [ 235 Pac. 989 ].) The necessary parties are before the court, and they have agreed to submit as the sole question presented by the application, and as one of law to be determined on the demurrer to the petition, whether or not land given to the city for and dedicated to and used for park purposes may properly be appropriated as a site for a memorial building.

The proposed veterans’ memorial building is one of a number of like buildings and halls which the county of Alameda has undertaken to erect at various places in the county for the purpose of stimulating and promoting patriotism, and to provide meeting places and memorial halls for patriotic associations and their members throughout the

Adams Park was selected as a suitable location for the Oakland memorial building. The board of supervisors of Alameda County, the council of the City of Oakland, the Oakland planning commission, and the board of park directors of the city approved the location and the erection of the building on the site chosen. Pursuant to the provisions of the Oakland city charter, the council invited proposals for the leasing of as much of the park property as is required for the site of the building, for a period of twenty-five years. The county of Alameda made the highest bid, and the council thereupon, by ordinance, authorized a lease of the property, which was executed by the city through its board of park directors, and accepted by the county. In the meantime, the board of supervisors of the county took legal steps for the erection of a suitable memorial building on the site, at a cost of approximately $250,000, and authorized the execution of the necessary building contract. The chairman of the board refused to authenticate and execute the lease, or to enter into the contract. [2, 3] He wholeheartedly concedes that a veterans’ memorial hall, such as is here contemplated, would serve a noble, patriotic cause, and admits, as held by this court in Allied Architects Assn. v. Payne, 192 Cal. 431 , 435 [ 30 A. L. R. 1029 , 221 Pac. 209 ], that the erection of such a building, to the extent that it would serve as a stimulus to patriotism, would be for a public purpose, but, in justification of his position, relies upon the well-settled principle of law that land which has been dedicated as a public park must be used in conformity with the terms of the dedication, and it is without the power of a municipality to divert or withdraw the land from use for park purposes. (Archer v. Salinas City, 93 Cal. 43 , 51 [ 16 L. R. A. 145 , 28 Pac. 839 ]; Mulvey v. Wangenheim, 23 Cal. App. 268 [ 137 Pac. 1106 ].)

[4] The uses to which park property may be devoted depend, to some extent, upon the manner of its acquisition, that is, whether dedicated by the donor, or purchased or condemned by the municipality. A different construction is placed upon dedications made by individuals from those made by the public. The former are construed strictly according to the terms of the grant, while in the latter cases a less strict construction is adopted. (Harter v. San Jose, 141 Cal. 659 [ 75 Pac. 344 ]; Spires v. City of Los Angeles, supra.) In the Harter case it was held that the use of a small portion of a park of several hundred acres, for hotel purposes, in such a way as not to in any manner restrict or interfere with the free use of the park by the public, the lease being for the evident benefit of the public, was not a use of the property inconsistent with its public character. In the Spires case, supra, it was held that the erection of a building for a public library in a public park was a legitimate use of a portion of the property, but that the use of the building for other municipal purposes would amount to a diversion from the use to which the property was dedicated. In neither of these cases was dedication made by a private individual for a specific purpose. The property here in question was conveyed to the City of Oakland by a deed of the donors made in the year 1899. The instrument purports to remise, release, and forever quitclaim to the City of Oakland two pieces of property, which may be referred to as “parcel one” and “parcel

We must agree with the respondent that the clause in the deed to the effect that the conveyance is made upon the express condition that the property shall be used forever as a public water park, although inserted immediately following the description of parcel one, and immediately preceding the description of the parcel including the land here in question, does not in any way indicate, except possibly by virtue of its position in the deed, that the restriction as to the use of the property “for the purpose of a public water park” was limited to the first parcel of land. The deed, by its recitals, purports to convey to the city “all those certain lots, pieces or .parcels of land . . . bounded and particularly described as follows, to wit”: and the habendum clause provides that the premises, which refer, of course, to both parcels, are to be held “upon the conditions hereinbefore [in the deed] set forth.” Parcel two is directly opposite the northerly shore of and faces Lake Merritt. But for the location of Grand Avenue, it would abut on the lake and on parcel one. [5] The intention of the grantors is to be gathered from a consideration of the entire instrument of conveyance, although the immediate object of inquiry is the meaning of an isolated clause. (Coon v. Sonoma Magnesite Co., 182 Cal. 597 , 600 [ 189 Pac. 271 ]; 9 Cal. Jur. 255.) The facts and circumstances surrounding the transaction may be looked to for a solution of the question, and, when a deed is but one of the circumstances surrounding an implied dedication, all the other circumstances may be considered together with the deed, and the implication, if any, is an

“Whereas, A parcel of land located at Grand avenue and Montecito avenue was dedicated to the city by Edson F. Adams, John Chas. Adams and Julia P. A. Prather on January 12, 1899; and

“Whereas, The grantors of said land have converted the grounds into a beautiful park, adorned with a conservatory, containing potted plants, tropical trees, etc.; and “Whereas, Edson F. Adams, John Chas. Adams and Julia P. A. Prather on July 13, 1903, donated to the city said conservatory with plants, tools and implements.

“Resolved, That the thanks of this council, on behalf of the City of Oakland, be extended to the generous donors for their gift; and be it further “Resolved, That said park be and it is hereby designated and shall be known as Adams Park.”

[7] It is, of course, well settled that a deed or contract indefinite in terms may be made definite and certain by the practical construction of the parties to it. (Grant v. Bannister, 160 Cal. 774 , 780 [ 118 Pac. 253 ].) We are satisfied that the acts of the parties, in full accord with their intention, amounted to a complete dedication of the land, referred to as parcel two, to public use for park purposes.

Petitioners claim that, even though it may have been the intention of the grantors of the Adams Park property to dedicate it to the city for park purposes, the restrictions imposed by the original conveyance have been released by reason of the fact that, as a precautionary measure, and for the apparent purpose of forestalling any question as to what was intended by the original deed, the successors in interest of the original grantors have executed an instrument in writing, by which they purport to “give, grant,

[9] The immediate question, therefore, to be determined is whether the purpose for which it is now desired to lease a part of the property to the County of Alameda for twenty-five years is consistent with such dedication. The building proposed to be erected, according to the petitioners, will “be used primarily as a meeting place and memorial hall for organizations whose membership is composed of soldiers, sailors and marines who have served the United States of America honorably in any of its wars.” While it is well settled that the erection of such a building is for public purposes (Allied Architects Assn. v. Payne, supra; Barrow v. Bradley, 190 Ky. 480 [ 227 S. W. 1016 ]; Kingman v. Brockton, 153 Mass. 255 [ 11 L. R. A. 123 , 26 N. E. 998 ]; Hill v. Roberts, 142 Tenn. 215 , 217 S. W. 826 ]), it does not necessarily follow that the use of the land on which it is to be located is consistent with the purposes for which the park was dedicated. A use for a public purpose may be utterly inconsistent with a use for park purposes. Under the well-settled principle of law generally applicable, if the city were undertaking to establish in Adams Park a city hall, fire-engine station, hospital, or jail, endeavoring to devote the property to the erection of municipal buildings or offices for use in the transaction of public business, we would have little hesitancy in saying that such purposes

By the express terms of the lease, the “premises shall be used exclusively for the erection and maintenance” of the veterans’ memorial hall. When the hall is completed, the lease of the site, according to its terms, will cover only the land actually occupied by the building—a minor part of Adams Park. The remainder of the so-called “site,” in common with the rest of the park property, will be devoted to lawns, flowers, and shrubs, and otherwise conducted in the manner usual to the maintaining of the park. The proposed Veterans’ Memorial Hall, “of a beautiful ornamental and architectural design,” will face Grand Avenue, the water park maintained by the city, known as Lake Merritt, and the public park surrounding it, known as Lakeside Park, which consists of more than 230 acres of land. It will be visible from a large part of the shore lines of the lake and the public streets, avenues, and parks surrounding it, “thereby,” according to the petition, “adding greatly to the beauty and attractiveness of the City of Oakland and forming a conspicuous and magnificent monument to the cause of patriotism and sacrifices of those who

Let a writ of mandate issue as prayed for.

Preston, J., Langdon, J., Richards, J., Shenk, J., Curtis, J., and Seawell, J., concurred.