I concur in the view of my associates that the city of Oklahoma City acquired no interest in the oil, gas, and mineral rights connected with the land which has been maintained by the city for park purposes. Clearly, the language used on the plat in connection with the parks was inadequate to convey the fee to the city. Langston City v. Gustin, 191 Okla. 93,127 P.2d 197.
The language used in the purported dedication of the parks was, as held in the majority opinion, sufficient to convey an easement for park purposes. However, the language was ineffective in this case because it attempted to make a gift of property belonging to the state when only a sale was authorized.
64 O. S. 1941 § 193 provides:
"The Commissioners of the Land Office shall reserve from sale, any lands lying near or within the limits of any city, or town, which may have a greater value than for farming purposes, by being platted and sold as town lots, acreage tracts, or public parks; and said Commissioners shall cause said lands to be surveyed, platted, appraised and sold at public auction for such purposes, and the lessee shall have the preference right to buy at the highest and best bid."
Under this section the state could plat and sell parks, but it could not plat and give away the same.
A sale is distinguished from a gift in that the former is supported by consideration whereas the latter is not. Consideration is defined in this jurisdiction by 15 O. S. 1941 § 106, which provides:
"Any benefit conferred, or agreed to be conferred upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise."
The attempted conveyance of the asserted easement in this case was by dedication. At the time of that dedication no one had paid or agreed to pay anything for the parks. No one had obligated himself to confer any benefit on the state by reason of the dedication or to suffer any detriment in consideration *Page 524 thereof. The suggestion is made that at a later date it was hoped other portions of the platted tract might be sold as lots for a higher price by reason of the parks. That, however, was at the time of the attempted conveyance no more than a "wistful vista of hope." No one had then paid or agreed to pay an enhanced price. The transaction with reference to the parks cannot be thus deprived of its classification as a gift — an attempted conveyance without consideration.
I do not share the view that a power to give may be implied from a power to sell. On the contrary, since the legislative direction is specific in alluding only to the sale, the implication is that the other character of transaction is excluded. The applicable maximum of statutory interpretation is "expressio unius est exclusio alterius."
The city has also invoked the doctrine of estoppel in this case. It maintains that the state is estopped to deny that the acts of the Board of Affairs and Commissioners of the Land Office were unauthorized because of having subsequently sold lots in the same addition as the blocks in question on the basis of the recorded plat thereof and having received increased prices for many of them (especially those near the parks) on account of the city's expenditures in improving and maintaining said blocks as public parks. The state answers this argument by citing the rule that estoppel does not apply to the unauthorized acts of government officials. The state's proposition appears to be supported by the authorities and the city cites none to the contrary. For instance, in Airy et al. v. Thompson et al., 154 Okla. 1, 6 P.2d 445, we held:
"All persons dealing with officers or agents of counties are bound to ascertain the limits of their authority or power as fixed by the statutory or organic law and are chargeable with knowledge of such limits. No estoppel can be created by the acts of such agent or officers in excess of their statutory or constitutional powers. 15 C. J. 541; In re Town of Afton,43 Okla. 720, 144 P. 184; L.R.A. 1915 D, 978."
See, also, Layne-Western Co. v. City of Depew, 177 Okla. 338,59 P.2d 269; State ex rel. Veale v. Paul, 113 Kan. 412, 214 P. 425; 19 Am. Jur. 818, sec. 166.
It is therefore my opinion that the purported dedication of parks herein involved constituted an attempted gift of the property of the state; that such method of disposition of state property was wholly unauthorized and therefore void, and that Oklahoma City owns neither the fee nor an easement in the "parks" here involved.
I therefore respectfully dissent in part.