Jensen v. City of Modesto

PEEK, J.

Plaintiff appeals from a judgment that he take nothing by his action, which judgment was entered following an order of the trial court sustaining defendants’ demurrer to plaintiff’s amended complaint without leave to amend.

The complaint alleged that plaintiff was a resident, tax

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payer, and legally qualified elector of the city of Modesto, and that said city is organized and acting under a duly adopted and approved freeholders’ charter which vested the powers of establishing, maintaining and operating public parks in the city council; that the said city is the owner of a park known as “Municipal Baseball Field” which was acquired by the city for the benefit of the general public, and by a duly adopted ordinance was dedicated as a municipal baseball park; that plaintiff is the manager of a baseball team known as the “Turlock Merchants” which is a member of the California State Baseball League; that defendants Harry Green and John Herman are acting for a team known as the “Modesto Reds” which is a member of the California State League; that the city of Modesto executed an agreement with Green and Herman with respect to the use of the park by Green and Herman, which agreement is incorporated by reference in the complaint and which in general provides that no team of organized baseball or which charges admission other than the Modesto Junior College, Modesto High School and the Modesto Junior American Legion baseball team may use the park without the consent of Green and Herman; that plaintiff has demanded of the city council that he be permitted to use the park but that permission to do so has been denied because of the aforesaid agreement; that the members of the city council have acted arbitrarily in withholding permission to use the park; that there is a controversy between plaintiff and defendants with respect to the validity of the agreement; that plaintiff contends that by the terms of the agreement the defendant city has attempted to rent to private persons municipal property to the exclusion of plaintiff and others who may desire to use said park, which is void by virtue of the following language of the charter of the defendant city. (Stats. 1911, pp. 1496-7, art. III, §§ 4,11.)

“.. . the city of Modesto shall have the right and power . . . To lease to corporations or individuals, for the purpose of maintenance and operation of any public utility owned by the city, and to provide for the lease of any lands now or hereafter owned by the city, except lands donated, purchased, acquired, or used for public parks.”