,




                                 OF       TEXAS
                                 AUUTIN     H.    T-xcxAs
    PRICE   DANIEL
    ATTORNEY GENERAL
                                 July 10, 1952

            Hon. Enos T. Jones             Opinion No. V-1474
            County Attorney
            Floyd County                   Re: Legality of selling or
            Floydada, Texas                    exchanging real property
                                               dedicated to Floyd County
            Dear Sir:                          for park purposes.
                      You have req,uestedan opinion of this office
            on the following question:
                        "Where a tract of land was dedicated
                   to Floyd County as a park for the use and
                   benefit of the public as part of the plat
                   of the townsite of the town of Floydada
                   (Floyd City), and has been so ,usedas a
                   park during most of the time since such
                   dedication, does the city council of the
                   city of Floydada have authority to sell
                   or exchange such park site to the First
                   Methodist Church, Floydada, for the old
                   church building and grounds in such city,
                   under the provisions of Article 1017, Re-
                   vised Civil Statutes of the State of Tex-
                   as?
                        'g, does either the Commissioner's
                   Court, acting under the authority of Arti-
                   cle 1577, RCS or the City Council and the
                   Court acting jointly have such authority?
                        "And, if yo~ufind that the city and/
                   or county have such authority, Is It neces-
                   sary to have the election provided for in
                   Article 1019, RCS?"
                      The case of City of Tyler v. Smith County,
            246 S.W.2d 601 (Tex. Sup. 1952) involved a dispute
            between Smith County, the City hf Tyler, and indivi-
            dual property owners, as to their respective rights
            in the square in the City of Tyler. The facts showed
            that a portion of the square was used for courthouse
            purposes, and the remainder used by the public as a
            parking lot, marketing place, gathering place for
Hon. Enos T. Jones, page 2 (V-1474)


public meetings, and similar purposes. The co,urt
held that the facts showed that the square as a matter
of law had been dedicated to public use and cannot now
be diverted to private use. We quote the following:
         "There seems to be a well defined dis-
    tinction between courtho,usesq'uareand pub-
    lic square. For Instance, In State v.
    Travis County, 85 Tex. 435, 21 S.W. 1029,
    there were many lots and blocks in the
    City of Austin which belonged to the Repub-
    lic of Texas when the city site was origi-
    nally platted. Some of them were reserved
    for public uses, and an agent of the Repub-
    lic marked them on the map designating the
    particular public use to which each was to
    be devoted. The north half of a certain
    block was marked 'Courthouse' while the
    south half was marked 'Jail.' Some time
    later Travis County erected both a co,urt-
    house and a jail on the places indicated.
    In 1876 this site was abandoned and a court-
    house and jail were erected on other lots.
    The county then rented the old block for use
    by a lumber yard and'later filed suit for
    rents due. The state intervened, claiming
    title to the block. This court held that
    the block having been dedicated to the limit-
    ed purpose of a courthouse and jail site and
    that use having'been abandoned, the block
    reverted to the state. But in course of
    the opinion It was said: 'If the land had
    been dedicated unqualifiedly to public uses
    --if, for Instance, the words "Public Park"
    had been written upon the plat instead of
    the words "Courthouse" and "Jail," we think
    the public, as well as the purchasers of
    adjacent lots, would then have acquired
    rights In the property beyond the power
    either of the state or county to divert or
    affect.'
          "There can be no do,ubtthat the public
     accepted the dedication. They used It as
     a market place, as a parking place, as a
     place for entertainment and rest, as a place
     for preaching services and political meet-
     iw,   as a place to get water for themselves
     and their stock, and according to undisputed
Hon. Enos T. Jones, page 3 (V-1474)


     testimony, they use it today as a 'place
     of enjoyment and rest', 'to enjoy the roses,
     shrubbery and various landscaping that has
     been put there'. According to the weight
     of authority, this establishes acceptance,
     and we so hold. 16 Am. Jur., Dedication,
     Sec. 35, P. 383.




     phasis added.)
          The dedicating deed accompanying your request
was executed in 1890. It recited that the dedicator
granted and conveyed "unto Floyd County for the use of
the public the following dedicated property to wit: All
the streets, alleys and arks and Court House Square in
the town of Floyd City P now Floydada as shown by the
above plat. . . To have and hold txe above dedicated
premises, for the use of the public forever."
          Assuming that the conveyance of the park to
the city was intended to vest the title In trust for
a future incorporation of the townslte and that title
became vested in the municipality upon the incorpora-
tion, nevertheless the city of Floydada does not have
the authority to enter into the proposed agreement.
Articles1017 and 1019 V.C.S. constitute the only
authority of the city to dispose of park property.
Article 1017 provides, in part:
          "The governing body of any Incorporated
     city or town in this State, however incor-
     porated, may sell and convey any land or
     interest in land owned, held or claimed as
     public square, park or site for city hall
     or other municipal building, and abandoned
Hon. Enos T. Jones, page 4 (V-1474)


     parts of streets land alleys, together with
     all improvements on any such property owned
     by any such city or town. The proceeds of
     any such sale shall be used only for the
     acquisition and improvement of property for
     the same uses as that so sold . . ."
          Assuming arguendo that the above statute ap-
plies to the property in question, we are nevertheless
of the opinion that it does not authorize the exchanging
of property for a different use from that which is sold.
          Under the facts submitted in your request, the
land in question has been dedicated to the public for
park purposes and the public has accepted the dedication.
We agree with YOU that under these conditions the land
must-remain for the use of the public for park p'urposes.
In,City of Fort',Worthv. Burnett, 131 Tex. 190, 114 S.W.
2d 220 (1938) the court held that a public .library
could not be iullt on's tract of land dedicated to the
public lor park purposes, for this would constitute a
diversion of the use intended by the dedication. Under
this holding the construction of a building to be used
as a civic center would also be a diversion. If such a
building could not be placed on the present site, it is
clear that the exohange of the property for a site on
which such a building is located would not be devoting
the nroceeds to the aca,uisitionof vronerts "for the
same uses as that so sold." Indeed; there-is language
in City of Tyler v. Smith County, supra, Indicating that
Article 1017 does not authorize a city to sell park pro-
perty which has been acquired through-dedication, but in
view of the holding In City of Fort Worth v. Burnett,
supra, we need not decide-this particular question be-
cause clearly the statute aoes not authorize an exchange
of property for a different use from that sold.
                          SUMMARY
          Land dedicated to the public for park
     purposes cannot be diverted for any other
     purpose. It must remain for the use of the
     public for park purposes and cannot there-
     fore be sold or exchanged. Cit of Fort
     Worth v. Burnett, 131 Tex. *.2d
                                19 ,
I




    Hon. Enos T. Jones, Page 5 (V-1474)


         220 (1938); City of Tyler v. Smith Co,unty,
         246 S.W.2d 601 (Tex. sup. 1952).
                                    Yours very truly,
    APPROVED:                         PRICE DANIEL
                                  ~ Attorney General
    J. C. Davis, Jr.
    County Affairs Division
    E. ~Jabobson
    Reviewing Assistant
                                          Assistant
    Charles D. Mathews
    First Assistant

    JR:am
