Appeal by plaintiff from an adverse judgment in a suit for an injunction to restrain defendants from further acts in connection with a project designated Toyon Canyon Park Reclamation in Griffith Park, Los Angeles, and for declaratory relief.
On March 5, 1898, plaintiff's parents conveyed to the city
"To be used as a PUBLIC PARK for purposes of recreation, health and pleasure, for the use and benefit of the inhabitants of the said City of Los Angeles, forever. And this gift and grant is made, and said property is hereby conveyed upon condition that said land shall be used and maintained by said City of Los Angeles and its successors in interest and estate, exclusively as a public park and pleasure ground, for the amusement, recreation, health and pleasure of its inhabitants, and upon the further condition that the name of said park now established by ordinance of said City, to wit, `GRIFFITH PARK' be continued as the official name and designation of said park; and whenever said tract of land hereby conveyed, or any part thereof shall cease to be used as a park, and for pleasure, amusement, recreation, health, and uses incident to the aforesaid uses according to the intents and meanings of the same, and if said City of its successors in interest or estate shall at any time change the official name of said park from GRIFFITH PARK to some other name or designation, then the lands hereby conveyed shall immediately upon the happening of either of said events, revert to said parties of the first part or to their heirs."
On May 16, 1957, the board of recreation and park commissioners of the city adopted a resolution which recited it had adopted a plan of development of Toyon Canyon in Griffith Park whereby the canyon will be filled and leveled to produce about 40 acres of leveled land for recreational use, and granted permission to the board of public works of the city to proceed with the project in accordance with the plan. The resolution is set out in full in the margin.
Plaintiff, the only heir of the grantors of Griffith Park, brought this suit to restrain defendants from proceeding with the project, alleging it is in violation of the trust on which Griffith Park is held by the city and the charter of the city. In a second count, plaintiff alleged a controversy exists between him and defendants concerning the right of defendants to dump rubbish and refuse in and to fill Toyon Canyon.
The judgment denies an injunction and declares the project was adopted in good faith for the purpose of developing a site of about 40 acres to be devoted exclusively to recreational and park purposes; the work done in connection with the development and uses of Griffith Park is directly incidental to its use for recreational and park purposes; and such uses are not violative of any one of the conditions on which the lands were granted to the city.
Plaintiff's first point is that the Toyon Canyon project violates the condition of the grant and the charter of the city. At the time of the grant, the charter provided:
"All lands and real property located in the City of Los Angeles and which have been heretofore, or which may be hereafter, set apart and dedicated for the use of the public as a public park or parks, shall forever remain to the use of the public as such park or parks, inviolate, and no part of said lands or real property shall ever be used or occupied for any other purpose."
Plaintiff argues that the project is obviously one to make Toyon Canyon a rubbish and refuse dump for the city and that it is unlawful to transform Griffith Park into a city dumping ground. The court found to the contrary and its finding is supported by substantial evidence.
The general manager of the department of recreation and parks testified that according to the plan which had been adopted and approved by that department on completion of the project "[t]he area would be planted to grass, as, for example, for the fields of baseball, soft ball, football, open play activities, archery course in grass, the grass being between
Plaintiff cites County of Los Angeles v. Dodge, 51 Cal.App. 492 [197 P. 403], for the proposition that diversion from park to playground uses is a violation of the grant. That case involved the city charter. The court held the city was not bound under the charter to maintain an established public playground forever as it was bound to maintain a park, but could use the playground area for a stadium since a public playground did not come within the definition of the word "park" to the effect that "`a park is a piece of ground set apart and maintained for public use, and laid out in such a way as to afford pleasure to the eye as well as opportunity for open air recreation.'" That case is not in point. The court stated (p. 506):
"We are aware that it has been determined that the setting aside of a part of a park as a playground is not inconsistent with park purposes (Caulfield v. Berwick, 27 Cal.App. 493 [150 P. 646]), but that is far from saying that a playground is itself a public park. In fact, the case cited indicates the contrary, for it is to the effect, the italics being ours, that `the devotion of a reasonable portion of a public park to tennis courts, croquet grounds and children's playgrounds' comes within the uses for which public parks are created."
The court found the acts of defendants in Griffith Park, of which plaintiff complains, do not occur upon nor otherwise affect any part of the lands comprising the park other than those which are the subject of the deed from plaintiff's predecessors to the city. It appears that Griffith Park consists of more land than was conveyed to the city by plaintiff's predecessors. Toyon Canyon is entirely within the area covered by the grant from plaintiff's predecessors to the city. Plaintiff asserts the finding is unsupported by the evidence.
The court found that the resolution of May 16, 1957, for the development of the project was adopted by the board of recreation and park commissioners in good faith as a means of implementing an accelerated plan for the reclamation and development of Toyon Canyon for recreational and park purposes; that the intent and purpose of the project and the objectives to be obtained are recreational and park purposes; and the methods being employed are directly incidental to and reasonably calculated to achieve those objectives. Plaintiff contends these findings are "at variance with the evidence."
A review of the record convinces us that all of the numerous findings of which plaintiff complains are supported by the evidence. We briefly comment on the following additional findings which he challenges as "untrue and at variance with the evidence."
Plaintiff claims this finding amounts to a partial admission that it was the board's intent to make Toyon Canyon into a city dump. The finding declares the means by which the leveling of the canyon is to be accomplished and is fully supported by the evidence. The selection of the means and methods to achieve the leveling of the canyon to provide improved park facilities is within the scope of the powers delegated to the board.
There is no merit in plaintiff's contention that this finding is not supported by the evidence. There was testimony that, based on studies and surveys by the department of recreation and parks, level areas are required for certain recreational facilities including places for displaying exhibits, picnicking, parking automobiles, and for participating in organized activities such as playing ball. There was testimony that the present level areas in the park are inadequate to meet the requirements for level terrain. Only 800 acres of the total 4,250 acres, as the park is presently constituted, are of less than a 10 per cent slope. It should be noted the court did not find that less than 20 per cent of the park was usable in its natural state for park purposes; the finding states that less than 20 per cent was usable for park purposes commensurate with the recreational requirements of the area intended to be served.
Plaintiff asserts it was the intention of the donors of Griffith Park "that the mountain area was to remain in its original state of nature for all time." This is not a condition of the grant. On the contrary, the grant expressly says that Griffith Park is to be used "for purposes of recreation, health and pleasure"; that it is to be "used and maintained" by the city "exclusively as a public park and pleasure ground, for the amusement, recreation, health and pleasure of its inhabitants"; and "uses incident to the aforesaid uses according to the intents and meanings of the same." The court correctly ruled that evidence of the intention of the grantors "that the mountain area was to remain in its original state of nature for all time" was inadmissible.
3. The reclamation of canyons and ravines by fill and
Plaintiff asserts this finding is irrelevant to the issues of the case. If so, it is merely surplusage.
Plaintiff asserts this finding is ambiguous, indefinite, and uncertain. We disagree. The finding states, in effect, that the operations in Toyon Canyon are the same type of operations which have been recognized and accepted as sound engineering practice for the reclamation of canyons and ravines to provide level land areas.
The second part of the finding — that the operations take place in a nonunique area — is supported by the evidence. There was testimony that the flora was comparable to that elsewhere in the park and that nothing distinguished this canyon from others in the park. Further, the trial judge's inspection of the area with the consent of counsel is evidence in the case and "may be used alone or with other evidence to support the findings." (McCarthy v. City of Manhattan Beach, 41 Cal.2d 879, 889 [264 P.2d 932].)
This finding is amply supported by the evidence. The testimony of Mr. Shearer who, as park manager, had control and supervision of nearly all of these operations indicates that the topography of the areas in question was altered by movement of earth in each case. Mr. Shearer was plaintiff's witness.
Plaintiff argues that since, as estimated in the resolution, it will take 5 to 10 years to fill the canyon, Toyon Canyon will "cease to be a park" and the road used by the disposal trucks will be virtually closed. There is no evidence in the record to support the argument concerning the trucks. Temporary interference with the use of the area for park purposes is an unavoidable incident in carrying out the ultimate purpose. Since the area is less than one per cent of the total park area and is located in an isolated area of the park, it appears as a necessary inconvenience to the public as was the interference with use of another area of the park for the two-year period (as shown in the record) during the construction of the observatory. Further, as stated in the resolution, by the use of inert materials collected from residences throughout the city the "Board of Public Works can accomplish the complete land reclamation within 5 to 10 years, which is many years less than it could be accomplished by the Department of Recreation and Parks."
Plaintiff's final contention is that no declaratory judgment has been made on the issues alleged in the second count for declaratory relief. He urges that he should have had a declaration of his rights under the deed even though injunction is denied. Count two of plaintiff's complaint alleges the same controversy which is alleged in the first count and raises the same issues. The prayer asks that defendants be enjoined from carrying on their present project. The second count of the complaint alleges a controversy only in respect to the activities in Toyon Canyon. We construe the judgment as set out in the margin as declaring the rights of the parties with respect to the Toyon Canyon project.
Shinn, P.J., concurred.
A petition for a rehearing was denied December 7, 1959.
"WHEREAS, this Commission has adopted a plan of development of Toyon Canyon in Griffith Park whereby said Canyon will be filled and leveled and produce approximately 40 acres of level land, and
"WHEREAS, the Department of Recreation and Parks has been proceeding with its own material for the land reclamation project herein mentioned, and
"WHEREAS, the Department of Public Works has more material available for the purpose of the land reclamation project, and
"WHEREAS, said Board of Public Works can accomplish the complete land reclamation within 5 to 10 years, which is many years less than it could be accomplished by the Department of Recreation and Parks, and
"WHEREAS, the Board of Public Works of The City of Los Angeles has requested permission to make the land reclamation herein provided for and further to make and perform certain other improvements in said park at no cost to the Department of Recreation and Parks,
"BE IT HEREBY RESOLVED:
"1. That permission is granted to the Board of Public Works to proceed with the land reclamation project in Toyon Canyon in the center of Griffith Park in accordance with the plan therefor adopted by the Board of Recreation and Park Commissioners on MAY 16, 1957.
"2. That said permission is conditioned upon the Board of Public Works complying with all of the following conditions:
"a). The Board of Public Works shall construct and maintain roadways extending from the proposed upper level of the fill near its northwest corner, northerly to intersect Griffith Park Drive, approximately 700 feet easterly of its intersection with Mt. Hollywood Drive; and, from the proposed upper level near its southwesterly corner, southerly to Mt. Hollywood Drive at the nearest convenient point of intersection.
"Reroute the bridle trail along the lower reclamation site access road and provide a crossing in a safer location adjacent to Griffith Park Drive.
"Transfer existing compost at the site to an alternate temporary location within the site for park use.
"b). To use only routes approved by the General Manager of the Department of Recreation and Parks in transporting material to and from the field, including the time of use of the route, it being understood that said route and time will be so arranged as not to interfere with traffic of park users during Saturdays, Sundays and Holidays.
"c). The Board of Public Works shall furnish sufficient flagmen to provide proper traffic control at all times.
"d). Make adequate provisions for the accommodation of material of the Department of Recreation and Parks on the site with the further privilege to said Department of disposal of material at any other site under the control of said Board of Public Works in eventual quantities of not less than the capacity of Toyon Canyon, it being understood that the said Board of Public Works does not have the necessary capacity at the time of this resolution, but that said Board is initiating action to acquire further capacity to be used, among other things, for this purpose.
"e). To grant to other budgetary departments of The City of Los Angeles the privilege of furnishing material to the Toyon Canyon land reclamation project.
"f). To perform all of the operations in a manner to obtain the maximum practical compaction.
"g). To perform all operations in accordance with the requirements for the operation of sanitary fills prescribed by the Board of Public Works from time to time.
"h). To install a water pipe adequate for the land reclamation project, for fire protection, and for permanent use for park purposes after the land reclamation project is completed.
"i). To provide the necessary temporary and permanent control of the surface and drainage waters in and near the project.
"j). To provide ingress and egress to the land reclamation project, with adequate provisions for the safety of the public.
"k). To provide for the prevention of erosion of the slopes in the area by planting, or otherwise, with particular attention to be given to the prevention of scars to the natural hillsides and the toe and the retention of the fill.
"l). To provide for and maintain sufficient sanitary installations for the use of all persons permitted within the area.
"m). To maintain all roads within the park which are used by vehicles connected with the land reclamation project for the duration of the project."