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It is said that the title is absolute in the city authorities. This is a mistake. It is not absolute in the sense that the city had the whole title, legal and equitable, and the right to dispose of the property as an owner in fee simple might; and cases like 858 Clark v. Providence, 16 R. I. 337, where cities had such complete title, and their disposition of property thereunder has been upheld, are not applicable here. This property, according to the terms of the dedicating deed, is held in trust "for use only as a public ornamental park." It is especially provided that it might be fenced, and the sole authority which the city had was to regulate the use marked out, not to change or alter it so as to put the land to a use wholly inconsistent with the one named by the dedicator. It may be true, as said in 5 American and English Encyclopedia of Law, page 417, note 4, that the land "might be put to any use consistent with the object of the dedication, and which would better adapt the premises to the particular use," but it is clearly settled by authority that the erection of a schoolhouse building in a public square is not consistent with the use of the lot as an ornamental public square.

It is held in Rutherford v. Taylor, 38 Mo. 315, that buildings could not be erected in a public square, and in Board of Education v. Edson, 18 Ohio St. 221, 98 Am. Dec. 114, it is said: "The dedication in this case, as stated in the petition, was for school purposes, and on which to erect schoolhouses. Without determining whether, under this dedication, the lots could properly be used for school purposes, other than the erection of schoolhouses thereon, it is enough to say that the dedication is of the land, and not of its value or proceeds." And in the case of Church v. Portland, 18 Or. 73, it is held that ground dedicated for a public park could not be used for the purpose of erecting thereon a city hall, the court saying: "Using land to erect a public building thereon is not using it for ornamental purposes, however grand or magnificent the structure may be. It dedicates the land. to a useful purpose, but it certainly is not using it for an ornamental one. The city of Portland is no mendicant, nor was it expected to be. It has always been able to buy necessary and suitable grounds upon which to erect its public buildings, and it should do so, and not attempt to encroach upon its public squares, which were clearly intended to be left open and unoccupied, for the health, comfort, 859 and recreation of its inhabi tants. The argument of respondent's counsel, that the dedicators intended that the blocks might be ornamented with public buildings, if the city authorities should so determine, if main

tained, would be liable to lead to absurd consequences. One set of city officials might hold to one policy and another set to a contrary one, and each act lawfully. The city authorities of to-day might determine that the blocks should be ornamented with public buildings, and proceed to erect them at a great expense, which would be entirely consistent with the intention of the dedicators. The city authorities of next year may conclude that the blocks should be ornamented only with walks, rustic seats, trees, grass, flowers, fountains, statues, and mementoes of heroic deeds, and, in order to carry out the latter mode of ornamentation, proceed to tear down the edifices erected by their predecessors, which would be equally consistent with the intention of the dedicators. I do not think that the court would be justified in adopting any such view. The rule in regard to property dedicated for public use, as laid down in 5 American and English Encyclopedia of Law, 417, 418, is as follows: Property dedicated to the public use may be said to be restricted to the use for which it is fairly intended to be dedicated, although this rule is construed to include such uses as are consistent with or

necessary to the principal use. If dedicated property be put to a use foreign to that contemplated by the intention and purpose of dedication, then not only the dedicator, but any property holder, will have his remedy in equity to enforce the proper use, and inhibit an improper one.' That the blocks were intended to remain open plazas, and to be beautified and adorned by the hand of art, I do not think there can be any doubt. Spots of that character, especially in large cities, are highly important. They afford healthful and pleasant resorts in the heated season, and are, in fact the only places where a large class of the community are able to go and enjoy the blessings and comfort of shade and pure air, and any attempt, on the part of public officials, to appropriate them for 860 sites for public buildings, in which to conduct the economic affairs of the city, under any pretext whatever, would, as I view it, be a cruel effort to subvert a humane scheme."

So, in Trustees etc. v. Mayor etc., 33 N. J. L. 13, 97 Am. Dec. 698, it is said: "The word 'square' on this plat of ground indicated a public use, either for purposes of a free passage or to be ornamented for grounds of pleasure, amusement, recreation, or health. That is the proper and settled meaning of the term in its ordinary and usual signification."

In Commonwealth v. Rush, 14 Pa. St. 186, the same meaning is given the word "square." So that it is clear that the terms

of this grant dedicated the ground to use as a public ornamental park alore, and that the word "park," ex vi termini, means a place to be kept open and ornamented for public uses, such as above indicated. It is also clear that the right to regulate the park, under this specific use, furnishes no right to change that use. But it is said again that this ground cannot be dedicated to the use of a park better than by erecting this building; that the construction of such a building is, on the doctrine of cy pres, appropriating it to the next best use in the nature of an ornamental public park; but the authorities above cited show that no such construction can be indulged on the facts in this case: Board of Education v. Edson, 18 Ohio St. 226; 98 Am. Dec. 114; Church v. Portland, 18 Or. 73; 2 Perry on Trusts, sec. 727; 2 Pomeroy's Equity Jurisprudence, sec. 1027.

In 2 Perry on Trusts, section 727, it is said: "From this review of the law, it appears that the object of all the rules upon this subject is to ascertain and carry out as fairly as may be the true intention of the donor. As thus explained, the doctrine of cy pres is only a liberal rule of construction to ascertain the intention. The intention of the donor is the point principally aimed at by all the courts."

Apply these principles here, and the inquiry would be, What was the intention of the donors at the time the dedication was made, in 1854? At that time it may well be supposed that this 801 town was prosperous. War had not ruined the town and destroyed its revenues, and the intention of the dedicators at the time the grant was made, was, doubtless, to keep onen this place as a public ornamental park, for the uses indicated in the authorities cited, and it is not for the court, on account of changed conditions, due to civil convulsions, to substitute what the dedicators might now wish to be done, for the intention as it existed when the grant was made. It is said, also, that this property had been abandoned, and hence the city authorities might do as they pleased with it. This is not the law. If it had been abandoned, then the fee in the property reverted to the original donors, and not to the city.

In Carter v. Portland, 4 Or. 339, it is said that "the original owner, though he has the naked fee, has no right whatever to interfere in the premises, except where the use becomes absolutely impossible, or where the corporate authorities seek to put the premises to some other use than that to which they were originally dedicated." In Briel v. Natchez, 48 Miss. 438, it is said: "If the city had lost the easement by abandonment or

nonuser, Green or his heirs would take the property on the original title, discharged of the encumbrance of the servitude." In Board of Education v. Edson, 18 Ohio St. 226, 98 Am. Dec. 114, it is said: "Should the sole use to which the property was dedicated become impossible of execution, the property would revert to the dedicators or their representatives": Citing authorities.

It must thus be clear that none of the objections interposed by the demurrer are available as against a bill of this particular nature. It certainly cannot be impossible for the town of Pontotoc to raise funds with which to make this property a public ornamental park, as was originally intended. The town may not be able, and it might not be desirable, to incur any great expense toward this end; but surely the expense would be small which would Le required to properly keep it in order, and use it as an open public ornamental park, devoted to the amusement, 862 recreation, and health of the citizens. Neither can it be necessary that a public school building should be erected in the park. No reason is shown why it might not as well have been erected on the site of the original building. But however all this may be, it remains true, on principle and on authority, that the original donors dedicating this ground for a public ornamental park alone are entitled in equity to prohibit the city authorities, or anyone in conjunction with them, from devoting it to any other use than such as is clearly consistent with the purposes of the original grant.

Decree reversed, demurrer overruled, injunction reinstated, and cause remanded, with directions to allow the amendment, and proceed in accordance with this opinion.

DEDICATION REVOCATION REVERSION TO DONOR.Dedication for one purpose does not justify use for another: Bowen v. Delaware etc. R. R. Co., 153 N. Y. 476; 60 Am. St. Rep. 667; Hemphill v. Boston, 8 Cush. 195; 54 Am. Dec. 749. Property reverts to dedicators or their representatives, if the sole use to which it has been dedicated becomes impossible of execution: Board of Education v. Edson, 18 Ohio St. 221; 98 Am. Dec. 114; or if the use and enjoyment be relinquished or abandoned. or if there be a nonuser for a sufficient length of time to be evidence of a discontinuance and abandonment: Gardiner v. Tisdale, 2 Wis. 253; 60 Am. Dec. 407, and note; monographic notes to State v. Trask, 27 Am. Dec. 569, Whitesides v. Green, 57 Am. St. Rep. 749-762.

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DEDICATION CHANGE OF USE BY MUNICIPALITY— RIGHTS OF PUBLIC.-Proprietors of a town, after setting apart lands as a public square or common, cannot resume the lands so dedicated, or appropriate them to any other use, when individuals have been induced, by reason of the dedication, to purchase of them. lands bordering on such square or common in expectation that it will o remain: Abbott v. Mills, 3 Vt. 521; 23 Am. Dec. 222; State v. Cat

lin, 3 Vt. 530; 23 Am. Dec. 230. A city cannot run streets through parks, or erect buildings therein, or divert a square to uses foreign to the dedication: See monographic note to State v. Trask, 27 Am. Dec. 569. A property owner in a town may maintain a suit to declare the title to a public square, and to have buildings erected thereon abated as nuisances: Brown v. Manning, 6 Ohio 298; 27 Am. Dec. 255; Le Clercq v. Trustees, 7 Ohio, pt. I, 217; 28 Am. Dec. 641, and note.

KOEN V. BRILL.

[75 MISSISSIPPI, 870.]

HOMESTEAD EXEMPTION.-The rule of marshalling se curities does not apply to homestead exemptions. A mortgagee of real property, part of which is a homestead, will not be permitted nor required to resort to the homestead alone for the satisfaction of his lien.

HOMESTEAD.-AN INJUNCTION WILL ISSUE against the sale of a homestead under execution where it is so encumbered that no benefit can accrue therefrom to the creditor.

Booth, Anderson & Booth, for the appellants.

871 TERRAL, J. The appellants obtained, in the court of a justice of the peace of Warren county, a judgment against the appellee for one hundred and ninety-six dollars and ninety-five cents, and levied the execution issued thereon upon the homestead of the appellee, a residence and lot in the city of Vicksburg, of the value of six thousand dollars. Appellee enjoined the sale of the premises, under the execution, on the alleged grounds that the homestead was encumbered by debts, with equitable liens to the amount of four thousand four hundred dollars, and that the sole effect of a sale of the premises, under the judgment, would be to "cast a cloud upon her title and destroy all her rights of homestead, and do her irreparable injury." The appellants demurred to the bill, and, the chancery court overruling their demurrer, they appeal to this court. The question is, whether the homestead is subject to sale under the circumstances stated and admitted in this case. Our statutes forbid the sale, under execution or attachment, of the exempt homestead, unless by its sale something could be realized for the substantial benefit of the execution creditor. Under the admitted facts of this case, it would be impossible for a 872 sale to be of any advantage to the appellants; on the contrary, they could only incur additional costs, while the attempted sale and conveyance would be a gross wrong upon the appellee by clouding the title to her homestead. We cannot think that the rule of marshaling securities applies

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