the Arlington estate had vested if its seizure could not be justified, brought an action of ejectment against the governmental custodians of the estate. After the overruling of a suggestion by the Attorney General of the United States that the court was without jurisdiction because the property was in possession of the United States, the court upheld the plaintiff's claim against the custodian defendants since the tax sale was void and they could not justify their possession by proof of a valid title in the Government. The Supreme Court affirmed, holding that the lower court was competent to decide the issues between the parties to the suit even though the United States was not a party therein and had expressly declined to submit itself to the jurisdiction of the court.
In a dissenting opinion in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628, Mr. Justice Frankfurter gives a comprehensive review of Supreme Court decisions in which the doctrine of 'Sovereign immunity' was raised, including Lee, supra.
As to the sovereign immunity claim made by Mr. Seaton and Mr. Wirth in the instant action the court believes that the District Court has jurisdiction to determine its own jurisdiction by proceeding to the merits of the issue raised. Land v. Dollar, 330 U.S. 731, 67 S. Ct. 1009, 91 L. Ed. 1209.
The cases generally hold that a governing body which accepts land in trust for park purposes is without power to divert such land to other purposes except by a procedure involving condemnation, and that building a through highway across land which has been dedicated solely for park purposes constitutes such a diversion. See Annotations at 18 A.L.R. 1246, 1248, 63 A.L.R. 484, 486, 144 A.L.R. 486, 492. It is likewise generally held that diversion from the use for which the land was dedicated may be restrained. Reichelderfer v. Quinn, 287 U.S. 315, 320, note 3, 53 S. Ct. 177, 77 L. Ed. 331. And the dedicator or one claiming under him, ordinarily may enforce was made and prevent a diversion therefrom. 26 C.J.S. Dedication § 69, 16 Am. Jur., Dedication, Sec. 67.
The court is convinced that an actual controversy does exist here as to the authority of the defendants Seaton and Wirth to make park land available for the contemplated highway and as to the authority of the District Commissioners to convert such park land to highway use, that there are herein genuine issues of material fact, and that the court should not grant any of the motions to dismiss or for summary judgment.
The Motion to Intervene
The parties proposing to intervene as plaintiffs assert that the construction by defendants through Glover-Archbold Park of a high-speed, limited-access divided public highway of four or more lanes, would be in violation of the rights in the park of proposed intervenors as cestuis que trustent and as cestuis que usent. They seek a declaration to that effect, and also an injunction to restrain the proposed highway construction.
Land dedicated to the use of the public for park purposes is held in trust for that use, and a resident of the city or town in which the park is located may maintain a suit in equity to prevent diversion of the use of such land, since 'courts of equity always interfere at the suit of a cestui que trust or a cestui que use to prohibit a violation of the trust, or a destruction of the right of user.' Davenport v. Buffington, 8 Cir., 97 F. 234, 236, 46 L.R.A. 377. Also see Reichelderfer v. Quinn, 287 U.S. 315, 320, note 3, 53 S. Ct. 177, 77 L. Ed. 331, and the discussion in Douglass v. City Council, 118 Ala. 599, 24 So. 745, 43 L.R.A. 376.
Some of the proposed intervenors are organizations. It has been held that where the rights of individual members of an association are involved the association has standing to sue to protect their interests. McArthur Liquors, Inc. v. Palisades Citizens Ass'n, Inc., 105 U.S.App.D.C. 180, 265 F.2d 372, 374. National Ass'n for Advancement of Colored People v. State of Alabama Ex rel. Patterson, 357 U.S. 449, 459-460, 78 S. Ct. 1163, 2 L. Ed. 2d 1488.
The requested intervention is allowable under Rule 24(b) of the Federal Rules of Civil Procedure which provides that the court may permit intervention when an applicant's claim and the main action have a question of law or fact in common.
Rulings on the Motions
The motions of defendants to dismiss or for summary judgment will be denied. The motion of plaintiffs to drop certain defendants and for leave to file an amended complaint will be granted. The motion of proposed intervenors to intervene as plaintiffs will be granted. Appropriate proposed orders in accord with these rulings should be submitted.
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