Tuesday, December 31, 2013

The common law of parks

A recent Colorado Court of Appeals case caught my eye for its discussion of a "common law" of parks, which was new to me.  

In essence, Denver citizens sued to stop the city from turning over a piece of city land to the school district by arguing that the city had treated the land like a park since the Fifties and, in so doing, had made the land a de facto park through such actions under Colorado common law.  The Colorado Court of Appeals described the Colorado law as follows:

“In Colorado a dedication of land to public use may be made either according to the common law or pursuant to statute.” City & Cnty. Of Denver v. Publix Cab Co., 135 Colo. 132, 139, 308 P.2d 1016, 1019–20 (1957). Common law dedication occurs when the city's “unambiguous actions” demonstrate its “unequivocal intent” to set the land aside for a particular public use. State Dep't of Highways v. Town of Silverthorne, 707 P.2d 1017, 1020 (Colo.App.1985); accord City of Northglenn v. City of Thornton, 193 Colo. 536, 539, 569 P.2d 319, 321 (1977); City of Denver v. Jacobson, 17 Colo. 497, 500, 30 P. 246, 247 (1892); 11A Eugene McQuillin, Municipal Corporations § 33:32, at n. 6 (3d ed. rev.vol.2009) (intent need not actually exist, but rather must appear to exist).

One of the public uses for which a city may dedicate land under the common law is as a park. See McIntyre v. Bd. of Cnty. Comm'rs, 15 Colo.App. 78, 61 P. 237 (1900) (recognizing the doctrine of common law park dedication); see also Hall v. City & Cnty. of Denver, 115 Colo. 538, 542, 177 P.2d 234, 236 (1946) (applying the doctrine). In Hall, our supreme court applied the rule of common law dedication to city–owned land. The court found that that there was no “common–law acceptance of an offer to dedicate” land as a park. 115 Colo. at 542, 177 P.2d at 236. In reaching this conclusion, the court relied on Starr v. People, 17 Colo. 458, 30 P. 64 (1892), which held that the public's use of a road through private property did not turn the road into a public highway unless the property owner's statements and conduct indicated that he intended such a result.

Friends of Denver Parks, Inc. v. City & Cnty. of Denver, No. 13CA1249, 2013 WL 6814985 (Colo. Ct. App. Dec. 26, 2013).  The court ultimately rejected the citizens' claim under the common law theory, but it struck me as an incredibly novel argument that may hold sway under better facts.
Stephen R. Miller


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