GREEN v. CITY OF NORMAN

GREEN v. CITY OF NORMAN
1969 OK 88
455 P.2d 58
Case Number: 41913
Decided: 05/27/1969
Supreme Court of Oklahoma

WILLIAM T. GREEN ET AL., PLAINTIFFS IN ERROR,
v.
THE CITY OF NORMAN, OKLAHOMA, A MUNICIPAL CORPORATION, DEFENDANT IN ERROR.

Syllabus

¶0 1. In the absence of a statute to the contrary, the title to streets created by dedication is held by the municipality in trust for the public, and not in a proprietary capacity, and the municipality is without power to alienate the same.
2. An estoppel cannot exist where the knowledge of both parties is equal and nothing is done by the one to mislead the other.

Appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.
Appeal by defendants from a judgment in favor of plaintiff City of Norman quieting title to a portion of a public street against all claims of defendants. Affirmed.

Vaughan & Smalley, Norman, for plaintiffs in error.
Fielding D. Haas, Norman, for defendant in error.

DAVISON, Justice.

¶1 This is an appeal on the original record by William T. Green, et al., defendants below, from a judgment in favor of the plaintiff, City of Norman, quieting the title to a tract of land against the claims of the defendants and canceling a lease given by the City, as lessor, to Oklahoma Dry Ice Corporation, as lessee. The question presented by this appeal is whether the City could validly lease a portion of a city street to a private concern for a term of years.

¶2 Plaintiff City instituted this action to quiet title to a tract of land in Jones Avenue, which was platted and dedicated as "Front Street" in the original plat of Norman, Oklahoma, in 1887. Jones Avenue is 100 feet wide and extends in a northwesterly and southeasterly direction. The subject tract of land is 50 feet wide, and is 164 feet in length along and on the westerly half of Jones Avenue, and adjoins a railroad right-of-way on the west. A concrete block building measuring 50 feet by 100 feet is located on the tract.

¶3 It appears that the tract was initially leased by the City in 1930 and that the lessee thereafter constructed a building thereon. In August, 1948, the City leased the tract to Oklahoma Dry Ice Corporation for a term expiring in November, 1981, at a rental of $200 per year. This lease recites that the City does not own or claim to own any of the improvements on the land. In October, 1961, the successor to Oklahoma Dry Ice leased the premises to the defendant Edward W. Cook, for 10 years at a rental of $150 per month, with a provision that Cook was to make certain repairs and alterations at an estimated cost of $3,050. Thereafter, a later City Commission questioned the propriety of renting "public property" and this suit to quiet title and to eject the defendants was filed. The trial court rendered judgment for the City.

¶4 The defendants contend that the City has entered into a formal lease and has accepted the benefits (rentals) of the lease and is estopped to deny the validity of the lease.

¶5 The merit of this proposition depends on whether the City had the power to legally lease a part of the public street for private use.

¶6 In City of Norman v. Ballard,

¶7 In the absence of a statute to the contrary, the title to streets created by dedication is held by the municipality in trust for the public, and not in a proprietary capacity, and the municipality is without power to alienate the same. Whitaker v. Town of Tipton, Okl.,

¶8 In the Lindauer case, supra, the court quoted with approval from Texas Co. v. Texarkana Mach. Shops, Tex.Civ.App., 1 S.W.2d 928, 931, as follows:

"`* * * The diversion of public property to private use is generally considered an abuse of power by those who are custodians of the rights of the public, rendering the act void. * * *'"

¶9 And in City of Stillwater v. Lovell,

¶10 Our statute,

¶11 In view of the above authorities we must conclude that the governing body of the City of Norman had no power or authority to lease a portion of Jones Avenue for private use.

¶12 We now turn directly to defendants' proposition that the City was estopped to deny the validity of the lease. Defendants' authorities concerning estoppel being applicable to a city, while acting in its proprietary capacity, are not in point. As shown above, in Oklahoma the title to public streets is not held by the municipality in its proprietary capacity. This distinction between estoppel in regard to acts of a municipality in its proprietary or private capacity and acts in its governmental or public capacity, is recognized in defendants' cited authority in 31 C.J.S. Estoppel § 138, pp. 676, 677.

¶13 Also in the same volume (31 C.J.S. Estoppel § 145, p. 725) it is stated, regarding grants or licenses to use streets, that "where a grant or license is void because of the entire absence of power to execute it, a municipality is not estopped by its acquiescence."

¶14 In City of Stillwater v. Lovell, supra, we further approved the statement of law, that an ordinance having the effect of diverting the streets from a public to a private use is ultra vires and void.

¶15 Defendants cite Foote v. Town of Watonga,

¶16 In any event, in the present case all parties must have known the area leased was located within a public street and that the City was without authority to lease a part of the public street. In Updegraff v. City of Norman, Okl.,

¶17 It is our conclusion that the doctrine of equitable estoppel is not applicable in the present case.

¶18 The judgment of the lower court is affirmed.

¶19 All the Justices concur.