Comm'rs of Franklin Co. v. Lathrop

The opinion-of the court was delivered by

Brewer, J.:

Defendant in error obtained áñ injunction-in the district court of Franklin county restraining the plaintiffs in error from selling the west half of block 85 in the-city of Ottawa, or any portion of it. The ground of the injunction was, á dedication' of the block to the use of the-public as a court-house square. The undisputed and material facts‘are these: About the 1st of September 1864 the Ottawa. Town'Company obtained title to the site of the present city' *460 of Ottawa, and thereon located, surveyed, platted, and laid out, into blocks, lots, streets, alleys, parks, and other public grounds, said city. Such plat, duly acknowledged, was recorded February 27th 1865. On the plat so acknowledged ¡and recorded block 85 was designated as “court-house square.” Defendant in error owns some lots in block 86, obtained by •conveyances from the town company subsequent to the recording of the plat. These lots face upon this court-house square, and are covered with lasting and valuable improvements,, made by both the present owner and her grantor. The county ■of Franklin in 1867 erected a jail building, with rooms for •county offices, at an expense of $15,000, upon this block 85, which building is still standing and used for county purposes ■Only. Subsequent to the record of the plat a deed was executed by the town company to the plaintiffs in error of ¿several prices of ground in Ottawa. Among them was block ,85, which was described as “ being conveyed as a site for county buildings to be erected by the said parties- hereto of the second part.” There was testimony, though contradicted, that the value of the lots belonging to the defendant in error was enhanced by their facing on this court-house square, and would be reduced by a change of any part of it from public to private use. The legislature of 1871 passed an act authorizing plaintiffs in error to sell the west half of this block ¿and apply the ■proceeds solely.to the erectiom.of a court house. Under this act the plaintiffs in error were proceeding, when ¡stopped by the injunction. There was a general finding for .defendant in error, and no special finding of facts.

1. Trust in put-interest*ofs* adjacent property-owners. 2. Mere increase of value does not create a trust. Two questions arise: Has the defendant in error such an interest as will enable her to maintain this action? Was ¿such a trust created by the execution and record of the plat, •or the deed to the plaintiffs in error, or both, as will be enforced at the instance of the beneficiaries ? In regard to the first question there is no serious ° A controversy. Indeed, it is no longer an open question in this court, having been settled by the decision in the unreported case of Young v. Moreland, and others, from Deavenworth county. There the owners of the lots facing *461 on the esplanade were held proper parties plaintiff, in an injunction to restrain any appropriation of that public ground to the use of a private mill-yard. The same point is also-decided in Le Clercq v. Trustees of Gallipolis, 7 Ohio, 218; Brown v. Manning, 6 Ohio, 298. Indeed, the principle which underlies these cases is one of wide-spread application. For if a trust be created by the dedication of a piece of ground, as a public park, court-house square, street, alley, or otherwise, the parties most beneficially interested in that trust are the owners'of the property facing thereon. The value of that' property is most materially affected thereby. All dwellers-in a city know how nearness to an open plat of ground, affects values. Business locates itself with reference to a-Court-house, or a market- square. Residences facing on an esplanade, or a park, are considered most eligible. Now, after parties have bought and improved with reference to-such a trust the ordinary and most common rules of equity require that it be enforced at the instance of such parties. We do not mean to be understood as holding that the mere-increase in value of property facing upon public grounds creates a trust in those grounds. A city may buy lots, and build a market house upon, them. Property adjacent thereto may rise greatly in value in. consequence thereof. Still, no .trust is created, and the city may sell the lots and convey good title, even though in so doing she materially lessen the value of the contiguous property. The same is true of any public grounds which any municipality may hold by purchase, gift, or in any other manner than in trust. A mere change in values, by the location of public grounds, creates no trust in them. But we need not-pursue this question any further, as the other is the main question.

3. whataedicatrust?ieatesa II. Was any trust created by the execution and record of the plat, and if so, what was that trust ? The law in force at-the time plainly answers this question. The act concerning plats of cities and towns, ch. 24, Comp. Laws, 119,. (re-enacted as ch. 78, Gen. Stat. 1868, p. 618,) provides that the proprietor shall cause an accurate map *462 •or plat of the proposed city, town, or addition to be prepared, .acknowledged and recorded. Section 6 reads as follows:

“Sec. 6. Such maps and plats of such cities and towns, and additions, made, acknowledged, certified, filed, and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended for public uses, in the county in which such city or town, or addition, is situate, in trust for the uses therein named, expressed, or intended, and for no other use nr purpose.”

4 Effect of sub-wince to11' couutj. This block was named on the plat “court-house scpiare.” Then by this section such plat vested the fee of the block in Franklin county, in trust for, and to be used as a court-house .square, and for no other use or purpose. It passed the fee, but passed it subject to a trust. Franklin county holds the title, but holds it in trust. It has the control, but must exercise it in subordination to the conditions of the trust. It may do anything with it which does not violate the- terms of the trust. The county commissioners are the general agents of the county, and have the general control and management •of the coirnty property. By the act of 1871 they are specially authorized to sell this property. As agents of the party holding the fee, and specially authorized by the law-making power, they may dispose of that fee, unless such disposition violate the trust under which alone the county holds the property. The county has accepted and occupied the property, It cannot- therefore now deny the conditions of its acceptance and occupation. The deed from the town company to pUintiffis in error recognizes this trust. Its language might not be sufficient to create a trust, not suffic¡en¡ t0 restrict the power -of the county- otherwise to alienate. It may be considered as nothing more than a description. Still, it is in nowise inconsistent with the trust previously created. It does not attempt, ■even if it were possible, to limit it. Counsel claims that it cuts off the reversion of the town company in case the use is abandoned. Hence, the use being abandoned, and the rever•sion of the town company cut off, or conveyed to the county, <fche latter would hold an absolute title discharged of the trust, *463 and could convey good title to a third party. But-an absolute conveyance to a trustee subsequent to the creation of a trust does not discharge the trust nor destroy the rights of the ■cestui que trust. Where the trust is temporary, a subsequent conveyance of the absolute title to the trustee is of value, as giving him the reversion, after the performance of the trust. But where the trust is permanent it is otherwise, and there is value only in the possibility of a failure of the trust. The deed therefore may be laid out of consideration.

5. Legislativo private rigiits. 6. Vested rights of cestni que trust. It is further claimed that this trust was created through the^operation of the act of the legislature heretofore cited; that, being simply the creature of the legislature, that body can destroy it; that in this respect the act of the legislature of 1871 is simply a retrospective act, and that retrospective acts are not forbidden by our constitution. This trust is not the creature of legislative action. True, it arises under the provisions of an act of the legislature, but it is created by the voluntary deed of the owners of certain lands, proceeding under and by virtue of such act. The law did not create the trust. It was the deed of the owners which did. The law simply prescribed certain rules under which the owners acting created it. Without inquiring how far a legislature is potent to destroy a trust it has created, if is sufficient to say this is not such a case. The question here is, can a legislature destroy a trust in land created by the voluntary act of the owners? The beneficiaries in a trust have an interest therein, just as the grantee in an absolute .conveyance of land has in that land. It is a vested interest, and one that a legislature cannot disturb. A legislature prescribes the effect of conveyances of land. A party proceeding under such act conveys land. The grantee by virtue thereof obtains full title. No subsequent act of the legislature, repealing or modifying the statute, can divest or affect the title of such grantee. Equally is it so with a trust created by conveyance made in conformity to the provisions of a statute. The conveyance once made, the trust created, it can be destroyed only by the consent of the grantor of the trust, *464 and the beneficiary. It is beyond the reach of legislative power. But we are told that,-.the grantors of this trust, by their subsequent conveyance, have conveyed all their remaining interest to the plaintiffs in error; that the public is the beneficiary, and that the legislature represents the public, so that we have here the consent of the grantor, the trustee, and the cestui que trust. This is probably true; and if this consent had been given before any private rights had been built up on this trust, it is difficult to see how this injunc0011]^ pe sustained. But the lots of defendant in error were purchased of the town company after the creation of this trust; lasting and valuable improvements have been placed upon them; their value is enhanced by this open square, and would be diminished by a change, (for a general finding finds all facts proved, concerning which testimony is offered or necessary to sustain the judgment.) Under these circumstances it seems to us this plaintiff has acquired such an interest in this trust as is beyond the power of the legislature to destroy. Authorities are ample on the general question here involved. Says Williams, J., in the opinion of the court in Abbott v. Mills, 3 Vt., 521, “It is customary in laying out towns, particularly when it is contemplated that they will be places of business, to lay out a square or common, and to locate building lots bordering thereon. And these lots acquire an increased value in consequence of their location. If a village is built up, and individuals buy these lots, erect buildings, and commence the establishing of a village, and make it a common center for the business, of the town, the other lands in town rise in value, of which the proprietors have all the advantage. It would then b& the height of injustice, and contrary to every principle of good faith, to permit these proprietors to derive this advantage, and then frustrate the expectations held out, by resuming the lands thus set apart, and at a value greatly enhanced in consequence of their having been thus set out.” So also in the case of Leffler v. City of Burlington, 18 Iowa, 361, the court uses this language: “Having done so, and sold lots to *465 various purchasers with reference to a plat of the town on which said land is dedicated to the public use by a given and prescribed designation, as other public squares, streets, and avenues are, all such purchasers acquire, as appurtenant thereto, a vested right in and to the use of the same, from which they cannot be divested by the owner making the dedication, nor by the town in its corporate capacity, was it disposed so to do.” See also, Com. Council of Indianapolis v. Awas, 7 Ind., 9; Haynes v. Thomas, 7 Ind., 38; State v. Trask, 6 Vt., 355; Rutherford v. Taylor, 38 Mo., 315; Commonwealth v. Alburger, 1 Wharton, 469; Rowan’s Ex’rs v. Town of Portland, 8 B. Mon., 232; Trustees of Augusta v. Perkins, 3 B. Mon., 437; Alvis v. Town of Henderson, 16 B. Mon., 131; Dubuque v. Maloney, 9 Iowa, 451; Cincinnati v. White, 6 Pet., 432; Barclay v. Howell’s Lessees, 6 Pet., 498. And especially as to the want of power in the legislature.to authorize a change from public to private use, see Le Clercq v. Trustees of Gallipolis, 7 Ohio, 218.

7. a specific trust diverted. Again, 'it is claimed that this sale would only be in furtherance of the trust, as by the terms of the law the proceeds are to be applied solely to the erection of a court house.- A difference in the manner of executing the trust is all that is sought. “ In trust, and for the uses therein named, expressed, or intended, and for no other use or purpose,” is the language of the statute. Under this a. specific execution of the trust is essential. It is not a conveyance of land to aid in the erection of a court house. It is a, conveyance of land to be used as a site for a court house. Such use would cease when occupied by an individual, as site for residence or store. The use contemplated is not temporary, but permanent. Board of Education v. Edson, 18 Ohio St., 221. These are all the questions presented for our consideration in the record, and finding.no error in the judgment of the district court we must affirm it.

All the Justices concurring.