The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1906-08-18
IS PUBLIC SQUARE
HOWELL DECIDES
District Court Makes important
Decision With Reference to
City Hall Square.

In an opinion handed down yesterday
| District Judge J. A. Howell decided the
| long standing question to whether
not the west half Of the city hall square
could be leased to private parties for the
conducting OF private business The
court perpetually restrained the city from
leasing selling the property Ia ques-
ton and held that the ground is a public
square and can be used for public pur
poses only
The litigation over the matter came up
on complaint OF Patrick Healy and Adam
patterson when the city threatened to
execute lease q certain portion of the
block in question to Julian II. Young for
a term of years for private business pur-
poses. When the case was heard 1t was
admitted by counsel for the city that the
south half and the northeast quarter OF
block is were dedicated to public uses and
accepted for such, but it was denied that
by the city, dedicated TO the citizens and
public or Ogden as public square.
Purchased by City.
Further the defendants alleged that on
March 3, 1888, pursuant TO a resolution Of
the city council the City of Ogden pur-
chased lots s, and the west half of lot s,
being the northwest quarter of the block.
from the Church Association of the We
Der stake of Zion, a corporation organized
and existing under and by virtue Of the
laws of the territory OF Utah, for and in
consideration of the sum of $4,000; that
the land was so purchased private
property and has ever since been posses
sed, occupied and used by Ogden City as
private property.
That ever since the land was so pur-
chased and possessed by Ogden City. ii
has been vacant, unimproved and unoccu-
pied for any public purposes whatsoever,
but has been from time to time rented
for private purposes and was the source
OF such revenue and rentals could be
obtained from private persons, who have
used and rented the same from time 20
time for private enterprises, shows and
| exhibitions. and that the land had 10
rental and profitable value, otherwise
than as herein set forth. and is not dedi-
Gated to any public use, or used for any
public purpose.
It appears that in the year 1880. when
| Ogden City was first settled, block is
was laid out by the surveyor. in precisely
the same manner as the other blocks of
Ogden City, none of them being at that
time subdivded into lots, and certain por-
lions of il were settled upon by various
persons, who built houses thereon. The
mayor and city council of the embryonic
city, however. concluded that this particu-
lar block ought 10 be a public square. and
consequently the various persons who had
settled thereon were notified to move
away from IL, and did so.
Gave Square to Brigham Younq.
From various entries upon the minutes
of the city council. which were introduced
in evidence, it appears that those per-
sons who had so located on block IS were
remunerated by the city for the loss stis-
tanned by them in having to move off said
block IS, and that the block was regarded
at that time by the city authorities as Il
public square.
From the uncontradicted testimony thaS
from the year 1850. soon those who
had settled on the block could remove
their DWELLING therefrOm. the testimony
showing that the last removal was in 1861
up to the year 1863 this block was re-
garded by the city authorities as a public
square. In that year there appears upCn
the minutes of the city council the follow
ing entry: The mayor stated that re-
quest had been made by President Brig
ham Yong 10 the city council to present
him the public square west of Birch's
house and that the right of way 10 the
same be granted to the Utah Central rail-
road. On motion it was resolved that the
square be presented 20 President Brigham
Young. and that the right of way 10 the
same be granted to the Utah Central rlii-
road company" So that even at that time
the city authorities looked upon this
block a public square and gave II away
with full knowledge that il was such
But not only did the testimony show
that the city authorities conceived that
this block was a public square. but the
testimony all showed that ii was made use
of by the inhabitants of the city as such
Finally, the court held that when the
City Of Ogden purchased this land. irres-
pective of whether or not the title in
Brigham Young was valid either oy rea-
son of the adjudication of the probate
court, or by reason of its adverse possess
sion. Ii purchased it in order to complete
public square three-fourths Of which
was already dedicated to public use by
ordinance, and the surrounding circum-
stances are sufficient to indicate the in
tention on the part of the city at the
time of It's purchase 10 dedicate il TO a
public and therefore that il is not now
subject to sale or lease.
Findings Of Court.
To summarize, the views of the court
are as follows:
"First-That either in conformity with
the federal statute or by virtue of the
principles of the common law. this north
west quarter Of block IS the land in ques-
ton herein, was dedicated to a public
use by the city, prior to the adjudication
by the probate court that Brigham Young
was the owner Of said block
'Second-That the adjudication by the
probate court that Brigham Young was
the owner of this block and the deed
given by the mayor in conformance with
such adjudication are void, for the rea-
son. first. that Brigham Young was not
entitled TO claim this block and second
ly II was not within the power of the
probate court TO adjudicate any private
individual entitled 10 il. because IL had
already been dedicated 10 n public use.
"Third-That the plaintiffs being tax
payers. although they are strangers TO the
title. still permitted TO attack Brig
ham Youngs title to this block, for the
reason that the probate court had no
jurisdiction OF the disposition of this
block, which had been dedicated to a
"Fourth-That there is no abandonment
by the city OF the dedication of this por-
ton of the block 10 public use
"Fifth-That the city cannot RELY upon
the fact that it remained in the adverse
possession of Brigham Young for seven
years. for to do so would be to perm
II to take advantage Of its own wrong IN
allowing IL 10 go into private ownership
'Sixth-That when the city repurchased
the land from Brigham Young. it was
dedicated to a public use
Let findings of fact, conclusions of
law and decree be prepared in accordance
herewith. perpetually enjoining the de-
PENDANT city from leasing or selling the
northwest quarter of block 49, plat A, Og-
den city survey. the land in question
herein. or from devoting ii 20 any other
than a public use
Board of Education Meeting.
The session of the board Of education
last evening of short duration and