Opinion
13043
December 23, 1930.
Before GRIMBALL, J., Aiken, December, 1929. Reversed.
Action by W.C. Plunkett and others against the City of Aiken and others. Plaintiffs obtained a temporary injunction, and from a decree refusing to vacate the injunction, defendants appeal.
The agreed statement of facts, and the decree of the Circuit Judge were as follows:
STATEMENTAbout the year of 1832, the railroad from Charleston to Hamburg was constructed by the old South Carolina Canal Railroad Company. In consideration of the railroad company establishing a station at Aiken, the property owners, where the town of Aiken is now located, agreed to convey to the railroad company every other block of said town. The town was laid out by the surveyors of the railway company, and these blocks were conveyed to the company accordingly. Most of the streets were laid out on the plats of the town of a width of 150 feet. As the town grew, these streets were opened for public travel. On account of the streets being so wide, the town councils of Aiken established or permitted to be established, parks in the center of many of the streets, with a roadway or driveway on each side of these parks.
One of these streets as laid out on the plats of the City of Aiken is known as Richland Avenue, and runs in an easterly and westerly direction. The United States paved highway No. 1, running from Columbia to Augusta, now passes over the street or driveway on the south side of these parks on the said Richland Avenue. On account of the congested condition of this street on the south side of the parks between Laurens Street and New berry Street, the property owners on the south side of the street, except the plaintiff, W.C. Plunkett, petitioned the City Council of Aiken to widen the said street between Newberry and Laurens Streets. The question having been considered for some time, and after giving the plaintiffs hearings on the matter, the City Council decided to grant the petition and widen the said street by encroaching on the park some 8 to 10 feet between said points. Thereupon, the plaintiffs, on or about the 11th day of September, 1929, commenced this action to enjoin the defendants from widening said street at the point in question, or in any manner interfering with the aforesaid park, or any of the trees or shrubbery therein. A temporary injunction was granted by Associate Justice Jesse F. Carter on September 11, 1929, with the provision therein that a motion to dissolve the temporary injunction might be heard before any Circuit Judge having jurisdiction.
ORDER OF JUDGE GRIMBALLThis matter now comes before me on motion of defendants for an order dissolving the temporary injunction herein issued by Associate Justice Jesse F. Carter on September 11, 1929.
The issue involved in the controversy is the right of the City Council of the City of Aiken to convert a portion of a city park into a highway space for the purpose of travel, subtracting a strip eight feet in width from the park and adding it to the highway which is at present adjacent thereto.
The facts are these:
About one hundred years ago the City of Aiken was laid out by plant on lands the property of one Beverly M. Rogers. On this plat and on other plats there appears, running east and west, Richland Street, or Richland Avenue, of a width of 150 feet. According to the plats, this entire width was dedicated to the public as a street; there appearing thereon no section set off as a park.
However, during the subsequent years, the City Council divided this width of 150 feet as follows: On the south side of the avenue they laid off a highway for travel; on the north side of the avenue they laid off a highway for travel; and between these two highways they laid off a park running parallel with the two highways and containing trees, grass, and shrubbery. The highway on the south side of the avenue is about 37 feet wide for vehicular travel, exclusive of a sidewalk for foot passengers.
The present proceeding before me is the result of the proposal of the City Council to cut from this park a strip 8 feet wide and add it to the highway on the south side of the avenue because of "the needs of traffic and of parking."
The purpose of City Council is embodied in the following resolution: "That the roadway on the south side of Richland Avenue between Laurens street and Newberry Street be widened eight (8) feet from the southern edge of the present curb; that in affecting this widening no trees shall be cut except one old cedar tree; that a substantial fence or line of posts shall be constructed at the northern limit of the addition, and that where such addition would otherwise interfere with two magnolia trees near the Newberry Street end of the addition that the said curb or fence shall be bowed or curved so as to leave said magnolia trees intact, without cutting or trimming the same; that the lower limbs of the large magnolia near the Laurens Street end of the addition be trimmed, as has been done on Park Avenue, only enough to allow a car six feet high to pass or park under the said limbs; that the ground involved in the addition be substantially gravelled; that the curverts or drains involved in this addition be set back to correspond with the addition."
The plaintiffs herein, at whose instance was obtained the temporary injunction, are W.C. Plunkett, who owns property in fee adjacent to the street and park involved; Aiken Civic League, an unincorporated society interested in the advancement of all matters of a civic nature and for the improvement of streets and parks of the City of Aiken; and the park commission for the City of Aiken which was created by ordinance of the City Council giving it "charge and control of all the parks of the City except Eustis Park." It may be mentioned at this time that the park in question is not "Eustis Park."
The city charter of the City of Aiken provides: "The Mayor and Aldermen shall have full and exclusive control over all streets, roads and ways in the said city, and it shall be their duty to keep them open and in good repair. They shall have power with the consent of adjacent landowners to close or change all such roads, street or ways within said city as they may deem conducive to the public convenience, and may sell the freehold of any such street, road or way as they may choose, either at private or public sale, as they may deem best * * * ;and the said City Council shall have all the powers over the streets, roads and ways therein which are now given, or may hereafter be given, to County Commissioners over the roads of their several counties, subject nevertheless to the limitation herein prescribed."
Upon the argument of this case before me, many questions were ably presented by counsel representing the contending parties. But, in my opinion, the disposition of the matter depends upon a consideration of the rights of the adjacent landowner, Plunkett — rights guaranteed to him under the city charter.
It was suggested that the time had come to determine who had control over the streets and parks of the City of Aiken, the City Council or the park commission. There is no doubt in my mind that the City Council, subject of course to the limitations of the city charter, is vested with full, paramount, and exclusive power to control and direct the use of the lands of the parks and streets. And the exercise of that power is purely a legislative function; a municipality, acting through its city council, has no power to code away, limit, or control its governmental authority over streets or parks either by contract, ordinance, or by-law, or otherwise to disable itself from performing its public duties. Grady v. Greenville, 129 S.C. 89, 123 S.E., 494.
The only remedy of the civic league, the park commission, and any other citizens interested in what a city council might undertake to do or might refuse to do, is to choose with care at the ballot box. Once in office, there is the power, subject, of course, to the limitations of the city charter.
Richland avenue, 150 feet in width, having been dedicated to the use of the public as a street about one hundred years ago, the city council of the City of Aiken during the following years, in the exercise of its powers, divided this street into the two highways, north and south, and the park in the center, as set forth above.
This they had a right to do. It is not necessary that every part of all highways should be used for the passage of vehicles and pedestrians. It is proper that some regard should be had for the aesthetic tastes, the comfort, health and convenience of the public. To provide that a strip in the center of a highway should be devoted to trees and flowers, as is done in many of our cities, constitutes a public use. In re Clinton Avenue, 57 App. Div., 166, 68 N.Y.S., 196, affirmed. In re City of New York, 167 N.Y., 624, 60 N.E., 1108, citing Shoemaker v. U.S., 147 U.S. 282, 13 S.Ct., 361, 37 L.Ed., 170.
A street may in part unite the two purposes — one to furnish a way for travel, and the other as a park or public place. Id.
Now, however, having crystallized the outlines of the two highways and the park, city council undertakes to make the change as herein before set forth, over the objection of an adjacent landowner. This, in my opinion, the city charter forbids them to do.
Defendants insist that, as the original dedication of the street known as Richland Avenue was of a width of 150 feet, the proposed change is not such a change as requires the consent of adjacent landowners under the charter. I cannot agree with this position. The lines of this avenue of highways and park have been fixed, defined, determined, settled, and crystallized by the city council. It would be a change just as great to subtract from the park for the gain of the highways, as it would be to subtract from the highways for the gain of the park. Neither change can be made, under the terms of the charter, without the consent of the adjacent landowners.
It is therefore ordered, adjudged, and decreed that the motion to vacate the temporary injunction herein be, and the same is hereby, refused, and it is further ordered, adjudged, and decreed that the said temporary injunction be, and the same is hereby, made permanent.
Messrs. Hendersons Salley, for appellant, cite: Powers of the City of Aiken as to control of streets: 3 Civ. Code, 1922, Sections 4544, 4550, 4563, 2906, 2907, 111 S.C. 391, 13 R.C.L., 167, 57 S.C. 507. Trees in streets: 13 R.C.L., 203, 204, 260; 12 Ann. Cas., 249. Changing width of street: 13 R.C.L., 62. Discontinuance of streets: 13 R.C.L., 62; 129 S.C. 89. Where property has been dedicated for particular public purposes, it can be used for no other purposes: 129 S.C. 89; 107 S.C. 42; 123 S.C. 282; 167 U.S. 88, Elliott, Roads Streets, Section 657; 138 S.C. 343. City cannot lose street or ways by adverse possession or non-use: 37 S.C. 333; 57 S.C. 507; 129 S.C. 89. When permissive use can ripen into a right: 107 S.C. 400; 129 S.C. 89. City cannot devote streets to any purpose which would interfere with public use unless authorized by statute: 75 S.C. 235; 123 S.C. 282. Injunction will not lie to control discretion of public officers: 129 S.C. 89; 123 S.C. 283; 150 S.C. 540; 143 S.C. 50. Plaintiff had adequate remedy at law if damaged: 156 S.C. 147; 106 S.C. 307; 126 S.C. 484. City Council cannot dispose of or delegate its authority over Streets: 13 R.C.L., 169; Ann. Cas., 1917-D, 646; 6 Ann. Cas., 646; 9 L.R.A. (N.S.), 1045; Elliott, Roads Streets, Section 657; 129 S.C. 89; 168 U.S. 88; 15 Ann. Cas., 1095; 129 S.C. 16; 148 S.C. 493; 19 R.C. L., 896; 16 S.E., 573.
Messrs. Williams, Croft and Busbee, for respondents, cite: Charter of Aiken and power as to streets: 6 Stat., 532 7 Rich., 435; 6 Rich., 112. Amended charter: 20 Stat., 442 Powers of City confined to those given by charter: 48 S.C. 297; 76 Mo., 402; 186 Ill., 556; 62 So., 31; 43 C.J., 84; 72 Penn., 196; 44 C.J., 201. Charter rights of City not repealed or modified by general statute: 154 S.C. 55. Injunction proper: 107 S.C. 43. Strip of highway devoted to trees and flowers constitutes public use: 68 N.Y.S., 196; 147 U.S. 282.
December 23, 1930. The opinion of the Court was delivered by
This is an action instituted in the Court of Common Please for Aiken County by W.C. Plunkett, Aiken Civic League, and the park commission for the City of Aiken, against the City of Aiken, the mayor and aldermen, and others, for the purpose of enjoining the defendants from cutting and removing certain trees and shrubbery from the center of Richland Avenue, in the City of Aiken, and widening the traveled portion of the avenue on the south side. The facts giving rise to the questions presented are set out in the agreed statement of facts appearing in the transcript of record, and are further referred to in the decree of his Honor, Circuit Judge William H. Grimball, which decree and statement will be reported.
From the decree on circuit, refusing to vacate the order of temporary injunction, the defendants have appealed to this Court. We do not regard it as necessary to set out the exceptions in full. What we shall say, in our opinion, disposes of the questions raised by the appellants and the additional ground urged by the respondents to sustain the decree.
The main and decisive holdings of the Circuit Judge were declared in this language:
"Now, however, having crystallized the outlines of the two highways and the park, City Council undertakes to make the change as herein before set forth — over the objection of an adjacent landowner. This, in my opinion, the city charter forbids them to do.
"Defendants insist that as the original dedication of the street known as Richland Avenue was of a width of one hundred and fifty feet, the proposed change is not such a change as requires the consent of adjacent landowners under the charter. I cannot agree with this position. The lines of this avenue of highways and park have been fixed, defined, determined, settled and crystallized by the City Council. It would be a change just as great to subtract from the park for the gain of the highways, as it would be to subtract from the highways for the gain of the park. Neither change can be made, under the terms of the charter, without the consent of the adjacent landowners."
With those holdings, for obvious reasons, we regret we cannot agree.
By reference to the city charter, granted by the General Assembly, the pertinent portion of which is set out in the Circuit decree, as well as to Section 4550 of Volume 3 of the Code, it will be observed that "the mayor and aldermen shall have full and exclusive control over all streets, roads, and ways in the said city, and it shall be their duty to keep them open and in good repair." The street in question was dedicated as a street, and not a park. The primary purpose of the street was to provide a roadway for public travel, and, when needed for that purpose, the City Council has no power, in the absence of legislative authority, to devote it to any purpose which would interfere with this public use. Spencer v. Mahon, 75 S.C. 232, 55 S.E., 321; Haesloop v. City Council of Charleston, 123 S.C. 272, 115 S.E., 596.
Since the street in question, as well as other streets of the City of Aiken, was originally laid off 150 feet in width, it is but reasonable to suppose that the town then did not need this entire space for public travel. For the convenience and use of the adjacent landowners, as well as to provide ample ways for travel to the general public, a roadway or driveway was laid off on either side of the street or avenue in question, as was done on other streets of the town. As the entire space of the street was not needed for travel, and trees, shrubbery, and grass are more appealing to the aesthetic sense than weeds, the City Council established, or permitted to be established, parks in the center of the street, between the two roadways or driveways. This use of the street was entirely permissible, so long as the space so used for a park was not needed for public travel. It being the duty of the City Council to keep the street open and in good repair for the use of the public travel, it follows that, when the need arises, it must devote as much of the street as necessary to roadways or driveways.
It is urged, however, that the portion of the charter which provides that "they (the mayor and aldermen) shall have power, with the consent of the adjacent landowners, to close or change all such roads, streets or ways * * * as they may deem conducive to the public convenience, * * *" is controlling. The charter must be read as a whole. It is the duty of the City Council to keep the streets open and in good repair, but they may, with the consent of the adjacent landowners, close or change any street, road, or way within the city, as they may deem conducive to the public convenience, and, when a street, road, or way is so closed or changed, the City Council may "sell the freehold * * * either at private or public sale, as they deem best."
In making the alteration in the condition of the street, no encroachment whatever upon the lands of the plaintiff, Plunkett, or any other adjacent landowner, is contemplated.
It is not proposed to close the street entirely. The main question presented, then, is this: Does the change in the use of a portion of the street from a park to a driveway constitute such change as contemplated by the charter, where it was necessary to secure the consent of the adjacent property owners? We think not. To sustain the holding of the Circuit Judge would be to paralyze the hands of the City Council. They could make no alteration whatever in any street without the consent of every adjacent landowner thereon. The present status of every street would have to be perpetually preserved, unless the consent of every adjacent landowner could be obtained. One such landowner could veto any proposed improvement or alteration. If the consent of an adjacent landowner is a necessary prerequisite to the felling of a tree or the removal of a shrub, such consent would be equally necessary to the planting of a tree or shrub. Likewise that consent would be necessary before the City Council could pave a street or sidewalk, construct a drain or curbing, install a sewerage or water main, gas pipes, or electric poles and wires, or permit telegraph, telephone, electric light, or trolley companies to construct their poles, wires, or tracks in the streets. Indeed, it would be impossible to make any change from the present exact status of a street without first obtaining the consent of every adjacent landowner, and, having obtained such consent and made the desired change, a new status would be reached, which could not, in turn, be changed without the consent of all the adjacent landowners. We do not think the City of Aiken intended to obtain, or the Legislature intended to grant, such a charter. The charter did not contemplate a change from one public use of a portion of the street to another. The change contemplated by the charter, where the consent of the adjacent landowners must be obtained, was one in the street itself, such as changing its width or location. After making such a change, or closing the street altogether, the freehold of the street, or portion thereof no longer needed for a street, might be sold by the City Council. The charter provision clearly shows that the contemplated change was such as would close the street, or a portion thereof, not longer needed for street purposes, a condition which would not obtain in case of a change from one public use to another.
The City Council has full control of the streets, roads, and ways of the City of Aiken, subject to the limitation that a street may not be closed or changed, as herein indicated, without the consent of the adjacent landowners. The extent to which such streets, roads and ways are opened for travel, or used for parks, rests wholly in the discretion of the City Council. The exercise of that discretion so long as it is not unreasonable or capricious, is a matter of policy with which the Courts are not concerned. There was not sufficient evidence to show any exercise of arbitrary power or caprice upon the part of the City Council, and we cannot sustain the decree of the Circuit Judge on this additional ground, as urged by the respondents.
Without attempting a review of the cases which we regard as sustaining our holdings, we point, in addition to the two already cited, to the following authorities: Chafee v. City of Aiken, 57 S.C. 507, 35 S.E., 800: Whitlock v. Town of Jonesville, 111 S.C. 391, 98 S.E., 142; Grady v. Greenville, 129 S.C. 89, 123 S.E., 494; Padgett v. State Highway Commission, 150 S.C. 538, 148 S.E., 548; Emerson v. Kaminski, 143 S.C. 36, 141 S.E., 108; Seaboard A.L. Railway v. McFadden, 156 S.C. 147, 152 S.E., 809.
The judgment of this Court is that the order of the Circuit Judge, refusing to vacate the temporary injunction granted by Mr. Associate Justice Carter, be and the same is hereby reversed, and the said temporary injunction is hereby vacated.
MESSRS. JUSTICES COTHRAN, STABLER and CARTER concur.