LIBRARY CONSTRUCTION IN PUBLIC PARK. Letter, January 27, 1970, Arthur N. Turner, City Attorney, Newton, Kansas.

You have asked whether it would be legally permissible to erect a city library within the limits of your present city park. We think it would.

The scope of the legitimate use of city park land depends in large part on the method by which it was acquired. Dedications of such land by individuals for park purposes are universally held to be strictly limited by the donor's "intent," excluding any use which might reasonably by considered "extraneous." In this vein, libraries have been held beyond the scope of "park" purposes in such cases as Hopkinsville v. Jarrett, 156 Ky. 777, 162 S. W. 85 (1914) and Ft. Worth v. Burnett, 131 Tex. 190, 114 S.W. 2d 220 (1938).

On the other hand, land acquired by the city governing body for park purposes is much less restricted in its permissible use. Typical of this approach is our own Court's statement in City of Wichita v. Clapp 125 Kan. 100, 263 P. 12 (1928) at p. 101:

". . . Under various authorities, the expression "park purposes" has been held to include a race track, a tourist camp, bridle trails, boating, bathing, refreshment and lunch stands, providing bathing suits, towels and rooms for bathers dressing pavilion, waiting room for street cars, refreshment and shelter room for public, grandstand, ball games, baseball diamond, race meets, tennis courts, croquet grounds, children's playgrounds, hotels, restaurants, museums, art galleries, zoological gardens, conservatories, and many other recreational and educational facilities. . . ."

Your particular problem originates in an 1875 contract between the Newton Town Company and the City, whereby the Company agreed to grant the land in question to the city if certain conditions as to improvement and maintenance were met for period of five years. The contract provided that the land would be used by the city "for public parks only, forever." Nevertheless, this was not a "donation," since it required action and expenditures by the city, and returned obvious benefits in the increased marketability of its land to the Town Company. No deed was ever executed pursuant to the contract.

The 1961 action to quiet title to this land does not resolve the dilemma, since it not only barred claimants to the land but decreed specific performances of the original contract. Presumably such specific performances all terms of the contract, including that requiring the city to use the land for "park" purposes.

On balance, we believe the acquisition of the land in question partakes more of a municipal dedication, with consideration to the land owner, than it does of a benevolent dedication. On this premise we believe a public library is well within the uses to which such park land may be devoted.

- Quoted from Kansas Public Library Laws, Attorney General’s Opinions and Rules and Regulations, State Library of Kansas, March 1979.


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