The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1895-01-25
PEANUT STANDS DON'T GO.
Distractions Must Not Be Put
Up in Parks.
Queer Transaction of the Long Beach
City Trustees.
Municipality to Lease Part Of .
Public Highway.

Judge Van Dyke yesterday sustained
defendants demurrer to the complaint
in Intervention, and denied the motion
for a judgment to PLAINTIFF on the
peadings, in the case of lothian l..
Bixby and others against the city OF
Long Beach.
The complaint alleged that ON the
18th OF May. 1889. the Long Beach Land
and Water company executed deed to
ths city OF Long Beach, conveying strip
OF land in front of the town, between
Ocean Park avenue and the bluff, for the
public use as park. upon the condition
that no buildings or structures of any
kind should DO erected upon it. After
ward the city leased to one of the de-
PENDANTS, named Brown, part of the
deedsd land, upon which he intended to
erect building. Thia would obatruct
the view of the ocean ON Bixby's lots.
The city of Long Beach, in its answer,
alleged that the contract was not bind.
ing upon il beeauss the land referred to
had already been dedicated, in 1882, to
without any prohibitory conditions
whatever.
A complaint In intervention wau
brought, through the attorney OF Long
Beach, by James @. Dunn, a taxpayer
and resident OF Long Beach, on the
ground that the board OF trustees had
failed to properly defend the action.
This brought in as new defendants the
/ Job ".k-
and the Long Beach Development com.
panv, and substantially set up the same
facts as those contained in the answer
OF the city OF Long Beach. 1t was the
demurrer to this complaint in interven.
ton which was sustained and the cross
action by intervenor was dismissed.
The court did not find that the land
had been dedicated iu 1882, according
to the facts alleged. But il the acts of
the former owners amounted to a dedi-
cation and admitting the compounds OF
the city of Long Beach with the Long
Beach Land and Water company are
void. still the matters set forth in the
complaint in Intervention do not consti-
tuts defense to this action.
The complaint in Bixby against Long
Beach is that the trustees leased to
Brown for $50 per month portion of
the park for the erection oil q business
building. The petition in Intervention
admitted that Brown was granted that
privilege for the purpose Of selling lem
onade, candies, shells, etc., therein and
attempted to justify this license or
lease on the ground of public conven-
fence.
In his opinion Judge Van Dyke says:
The object on the part of tho owners in
reservlng this long strip in front OF the
town for the purpose Of park is very
obvious; it was to preserve an uninter-
rupted prospect or view of the ocean.
and the city OF Long Beach had no more
right to license or lease or permit q
structure to be erected thereon for the
purpose of carrying on trade or business
than to allow the same to be done
in any of the streets of the town.
The many authorities cited by inter-
venor's counsel in support OF his point
that the city authorities had no power
to compromise the suit, to the effect
that municipal corporation can exer-
cise only such powers as have been con.
ferred upon it by charter or law, apply
with equal force to prohibit the munic-
pality from easing or licensing to Brown
the right OF erecting q structure upon
the public parks in which to sell tenn.
perance drinks. II they could license
him to do tie latter they could also au-
thorize the erection of saloons, hotels
and restaurants.
1t was not the design of the law, says
the court, that public park, particu-
larly narrow strip of ocean frontage,
as in this case. should have erected
thereon buildings for private trade or
commerce. or buildings of any kind,
even for public purposes. The provi.
sions of the act in reference to munich
pal corporations on this point confer
upon the board OF trustees power to
establish, lay out, alter, keep open, inn
prove and repair squares and other pub.
lie places in city or town, and to re-
move all Instructions thsrefrom, but no
power 10 conferred to place distractions
in the square or public places.
Inasmuch as the answer OH the part
OF the city denies, for want of informa-
ton, the allegation in the complaint
that the plaintiffs are citizens of Long
Beach and the owners OF lots lying OPP
posite and Immediately north of that
portion of the park on which the stfuc-
ture complained OF ia erected. an issue
is raised upon q material allegation of
the complaint, and the motion of the
plaintiffs for judgment on the plesdings
is denied.
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