I dissent. The rule is recognized throughout judicial decisions thus far, that where a private dedication of real property is made to a city or municipality for a park, or a similar public purpose, it may not be used for any purpose which is inconsistent with the intention expressed in the dedication. The cases adhering to this rule are collected in 18 A.L.R. 1247, and City of Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 63 A.L.R. 484. All agree that where the dedication is public, there may be a change in the purpose for which the property is used.
Where the title to land has been dedicated to a public use, as for a highway or public square in a city, the title is in the city as trustee for the public. (Werlein v. New Orleans,177 U.S. 390, 20 Sup. Ct. 682, 44 L. Ed. 817.) The trust created by such dedication may not be destroyed by the subsequent act of him who created it, or his successors in interest. (Commissioners ofFranklin County v. Lathrop, 9 Kan. 453.)
But all these fundamental rules which have been recognized are set at naught by the majority opinion in this case, upon the theory that when the grants were made to the city they were made subject to the provisions of the statute authorizing the city council to vacate parks, and, therefore, the donor was incapable of making a conveyance which would assure the continuance of the use of the property contrary to the whim or caprice of succeeding city councils. *Page 459
The conveyances were made upon the express condition that the property in question should be used for park purposes. A trust was thereby created in favor of the public, which the legislature, as I view it, was unable, either by antecedent or subsequent act, to thwart the expressed intention of the parties to these grants. In other words, the effect of the majority opinion is to say that the expressed intention of the donors as to the use to which this property was to be devoted, is about as effective and binding as the ordinary well-intentioned New Year's resolution. Instead of upholding the validity of a solemn contract and enforcing the validity of a trust created by such contract, a statute — the provisions of which might be waived — is used as the engine of destruction to set aside the contract and destroy the trust created thereby.
Contracts may be entered into which are not against public policy — which is that principle of law holding that no citizen can lawfully do that which has a tendency to be injurious to the public or against good morals. The utterances of the legislature are the declaration of the policy of the state. (State v.Gateway Mortuaries, 87 Mont. 225, 287 P. 156, 68 A.L.R. 1512.)
The statute on which the majority opinion rests does not declare a contract such as the one before us void. It is fundamental that parties may contract waiving their statutory rights unless prohibited by public policy. This statute does not prohibit the making of the contract which was made in this case by the grantors and its acceptance by the city. In this case, and all others of similar nature hereafter arising the successors of the grantor or donor by consenting to a change in use and the subsequent conduct of the city, which holds the property in trust, changing the use leads inevitably to the truth of the prophecy in Warren v. Mayor of the City of Lyons,22 Iowa, 351, wherein it was said: "And why, we ask, is not the like rule applicable, and the like good faith required, as between a corporation, representing the public, and an individual? Why may I not affix the terms, designate the uses and purposes, upon and for which I give to the public, my farm, or my lots? And *Page 460 upon what principle of law or morals is it, that the legislature can say that this property may, at the option of the trustees, be used for another and different purpose? `A' dedicates his grounds for school purposes, for instance. The corporation, deeming some other place better suited to the object indicated, turns the dedicated property over to fishmongers, and tallow-chandlers, or, if you please, to merchant princes, and wealthy householders, defiantly saying, `You no longer have any interest in this property, but we can misuse the same without limit, and you cannot complain.' Such a doctrine would enable the state at pleasure to trifle with the rights of individuals, and we can scarcely conceive of a doctrine which would more effectively check every disposition to give for public or charitable purposes."
Clearly, the city may not lawfully breach the trust created by these grants, and the trial court should have granted the injunction as prayed.