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Show PAGE FOUR THE DAILY RECORD WEDNESDAY, SEPT. 13, 1972 State of Utah Office of the Attorney General OPINION NO. In 140 A.L.R., p. 1440, Is a note on Implied or Inherent Power of Municipal Corporations to sell its real property. This note generally supports the view that if the property is used for a public purpose it cannot be sold without special authority, but property not used for a public purpose, or abandoned or unfit for such use, may be sold. 72-0- 39 SEPTEMBER 11, 1972 Palmer, St. George City Attorney REQUESTED BY: John PREPARED Vernon B. Romney, Attorney General Homer Holmgren, Assistant Attorney BY: W. From 1. General its Does a real street, title to which was originally vested to the mayor of a municipality, Is vacated, by patent does the title revert to the city or to abutting property owners? 2. we conclude as follows: If the property Involved Is being for used a public purpose, public use must be first discontinued by proper action by the city council. There is no statutory requirement that the city must call for bids In disposing of this property and so bids are not required and hence bidding need not be required. such municipality have the power to sell property without advertising for bids7 1: QUESTIONS: the foregoing, 2. When a It Is not possible to give a definite answer to your second question. 1. You do not Indicate In your letter what kind of property Is Involved or whether It is held by the city for a public use. In answering your question, we assume that the property Involved Is not burdened with a public use, such as a public park, but Is held in Its proprietary capacity. If it is devoted to a public use, such public use must first be terminated by an appropriate action of the. city council before a sale can be made. In the case of Hall v. N. Ogden City. 109 Utah 325, 174 P.2d 703, ' the court held that land conveyed by the federal Townsite Act was subject to the rights of persons then in possession of the land and that a recording of a townsite plat dividing the land into lots and blocks and streets did not divest the then occupant of his equitable interest which had become vested by his occupancy and that such vested right could not become divested under regulations of local legislative authority for failure of occupant to file his claim thereto as long as occupant remained in possession of the property. In that case persons had occupied, fenced and farmed the areas which were later designated as streets on the townsite plat. The city could not open these areas as streets without condemning or paying the occupant for his Interest. 2, U.C.A. 1953, provides that cities may "purchase, Section receive, hold, lease, convey and dispose of property, real and personal, for the benefit of the city. . . and may do all other things In relation thereto as natural persons." Your letter does not disclose any facts upon which mined whether the areas In the city here Involved came to bered by the equitable interest of an occupant. If these of them, were so encumbered, then of course a vacation by See CONCLUSION: opinion. 10-8-- There Is no statute requiring a city to call for bids In disposing of property not needed for city purposes. In Oqden City v. Bear Lake & River Water Works and Irrigation Co., et al.. To Utah 440'," 52 P. 697, 41 L.R.A. 305, the city charter of Ogden City provided that the city Is authorized to "purchase, receive, hold, sell, lease, convey and dispose of property real and personal for the benefit of the conveyed its city." Ogden City water system under a contract by which the purchaser was to furnish the Inhabitants of the city with water. The purchaser agreed to expanded a large sum of money in doing so. retake its water system, alleging the contract of sale to be invalid. The city obtained the appointment of a re- make certain improvements and The city brought an action to ceiver and defendants (the purchasers) appealed. .The Supreme Court reversec the decree appointing the receiver. The court said the city may have "property that has ceased to be used or is not used by the public. All such property of a municipal corporation, not devoted to the public use, may be sold or leased under the general authority to sell or lease, as the public welfare may demand. But property devoted to a public use cannot be sold or leased without special statutory authority." The court held the property devoted to supplying the city with v;:tcr was devoted to a public roe and t;.'t 1 ir resolution of the city council purporting to turn it over to the defendants was absolutely void. 1 In McDonald v. Price. 45 Utah 464, 146 P. 550,. the court held that statute requiredTcertain procedure to bfr followed in disposing of city property a sale, to be valid, must comply with the statutory procedure, even though the property is held in a proprietary capacity. The where a court quotes from 28 Cyc. 664 as follows: "If no formal inode of making a municipal contract is prescribed by charter, statute, or ordinance, then the contract may be made in the method common to all corporations." In Rowley v. Milford City. 10 Utah 2d 299, 352 P.2d 225, the court held that to sell a public park it must first be vacated by a proper areas as streets would not revert the title to the subject to the equitable interest of the occupant. cse On ... 57-5- -4 10-8-- 8.5 It can be argued that the word "proprietor" In this section refers to a private owner and not to the city Itself where It files and records a townsite plat. We are inclined to favor this position; that the legisla ture did not intend to divest the city of title to land which it procured by a conveyance under the Townsite Act. It would follow, therefore, that upon vacating a townsite street the title does not revert to the abutting property owner. At least there is such doubt as to such reverter as would require a quit claim deed from the city to the abutting owner as a matter of prudence and to place the area upon the tax rolls upon the recording of such deed. In White v. Salt Lake City, 121 Utah 134, 239 P.2d 210, the. court says: "If the street should cease to serve any public abandoned and, in that case, the right to the use and control of the ro3d.iy would revert to the -7 and cc.iWOii low principles." abutting owner pursuant to Sec. Interest, It may be 36-1- street dedicated This case, however, involved a private owner and for that reason street dedicated In a townsite plat by by a wre c1ted 1n Stone v. Salt Lake City. 11 Utah 2d the procedure in disposing of the property used by the city as police headquarters, "It Is desirable fire station and and Jail, S, the court says: plat filed itself. the city and recorded the question as to a court did not, therefore, expressly hold that the sale of the obsolete property could only be made by calling for bids. It simply approved the procedure followed by the city. In 10 McQuil in , p. 328, Sec. 29.31, Is the following: "In the of charter or or statutory requirements, municipal contracts need let under competitive bidding," citing Utah Power & Lioht Comoanv vProvoJUz, S4 10 P.2d 1 Utah 203, 625. 74 P. 2d 1191; SchuTte""v7 Salt Lake Citv. 79 trust for the city or its inhabitants." court held that the statutory provision requiring bids did not apply as the disposition of city property was not of state-wid- e concern; that under the general power to sell granted by the charter the calling for bids vas not required. The court quotes from 43 C.J., Sec. 249, p. 249, note 85: the other hand, if the mode of exercise is not prescribed in the act or charter conferring the power or in some other statute, the corporation may exercise the power in any usual and appropriate manner according to its own discretion. . . Th rule is held to roan that 'where powers are terr-granted ir. end th? rod? of exercise of same is not prescribed, the board of aldermen may determine such mode. "On s t -- j Water Service Agreements Brant H. Hall 5778 Wasatch Blvd. MA: 3680 Spruve H. Boston Wm. 6968 Virginia Hills 7216 S. 2780 E. MA: 7371 S. E.J. Young 1350 E. Spring Ln. Merlyn Const Co. 2124-2- 6 S. Oneida S. H.N. Wilkinson 2912 Oakhurat Mrs. Eli H. Herrena 1591 S. Navajo St. John Mortenaen 4986 Manlloa Dr. Paulene Clark 467 N. Morton Steven A. waters 435 N. Morton Samuel A. Walsh 1815 Moor Dale Mrs. W. E. Maddox 1301 McClelland St. MA: 898 S. 9th E. Lex L. Udy 4597 Ledgemont Dr. Me 1105 Lake Sunhill 367 E. 2nd F.B. Michael A. Roger K. Hanson MA: In the City of Tucson v. Arizona Alpha of Sigma Alpha Epsilon. 67 Am z. 330, 1S5 P.kd 562, tne question was whether the city was legally required to call for bids before conveying a'certain area of a public alley to the abutting property owners. The court held the valid. conveyance Thu statute required that a sale of real or personal property shall not he made until after for bids therefor shall have been made tor at least 30 days advertising in some newspaper, etc. No bids were called for. The city s charter conferred power upon the city mayor and council "to provide for the sale of property belonging to the city which is not needed by or which is not suited for the use of the city, or which is held in ijiiif f a t 'r, Attorney General The The in a settle does not VERNON B. ROMNEY proper that sales of such public conducted. The essential of property be openly and fairly procedural requirements of that character is that there be notice, a reasonable opportunity for those interested to appear and be heard, and that fairness in the procedure In connection with the sale be observed. . . Its (the city's) procedure in publicizing the proposal, holding a public hearing, adopting a resolution declaring the property obsolete and soliciting bids for its sale encompasses the basic elements of propriety In dealing with such public business." 22, but would remain city Respectfully submitted, i9o, 356 P.Zd 631. Utah can be deter- If the areas Involved were not encumbered by the equitable Interest of occupants, the title to these areas would vest in the city by virtue of the patent. Sec. provides that a plat, when filed and recorded, and shall vest the shall operate as a dedication of all such streets fee of such parcels of land as are therein expressed, named or Intended for public uses In such city for the public uses therein named or intended. Sec. provides that vacating a street which has been dedicated to public use by the proprietor shall operate as "a revocation of the acceptance thereof, and the relinquishment of the city's fee therein by the governing body." ordinance. Absence not be It the city encumareas, or any the city of the Nof ringer Terry 8802 Kings Hill Dr. Mark Neeley 2516 Imperial Clayton L. Thatcher 2481 Highland Thomas J. Bohan 1066 Harvard Steven A. 621 Grand Hill PI. Staco Distributing 1810 W. Fortune Rd. Bsp. Richard L. Robbins 4417 Fortuna MA: 3693 Oakvlev R. Wayne Ferguson 3291 E. Fairfield Ashley 1917 Michigan Tony Nicaatro Kent M. Samuelson 1701 Meadow Moor Rd. J.E. Hamm MTs.- Intire 3509 East Oaks Dr. - 7432 Eastb ourne Cr. |