USA > Ohio > Cuyahoga County > History of the Cuyahoga County soldiers' and sailors' monument > Part 5
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"The stipulation was prepared and filed with the pe- tition. It was as follows :
" The Soldiers' and Sailors' Monument Commission of Cuyahoga County hereby agree to and with the at- torneys for the City of Cleveland that pending the pre- liminary hearing in the Court of Common Pleas of a case to be this day filed in the Court of Common Pleas, in which the City of Cleveland is plaintiff and Levi T. Scofield and other members of said Commission are defendants, and in which an injunction will be prayed for, that no steps will be taken for the erection of a Monument upon the Square of said City, nor for the removal of the Perry statue, nor shall any material
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be placed upon said Square for such purpose by said Commission, nor by anyone acting under or for them. This condition and agreement is based upon the fact that such petition is this day filed.
" L. PRENTISS, "ALLEN T. BRINSMADE, "M. D. LEGGETT, "J. J. ELWELL, "Attorneys for said Commission."
Pending the hearing of the suit, the Monument Com- mission strictly carried out the agreement made by its attorneys, and matters remained in statu quo.
The preliminary trial was heard by Judge Carlos M. Stone, on May 11th, 1891, in the Cuyahoga Court of Common Pleas. The argument for the Commission, made by Comrade A. T. Brinsmade, so clearly and ably sets forth all of the salient points in the case that we take much pleasure in reproducing a synopsis of it, copied from the Cleveland World of May 15th :
"For many years, the Soldiers of Cuyahoga County have contemplated the erection of a Monument in com- memoration of the Soldiers of the Union Army who enlisted or were appointed from this county.
" This is only in keeping with what a grateful people of countries the world over, and for ages of time, have done in commemoration of their Soldiers and their heroes of memorable wars.
"No wars have been more memorable than the War of the Rebellion, and no Soldiers are more entitled to recognition by a grateful people than those of this country, who fought for the preservation of the Union.
" Rather than raise the money by subscription from the citizens of the county, who would readily have contributed to such a purpose, it was deemed proper and more equitable that all should contribute, and that a trifling assessment should be imposed for a series of
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years upon all property owners of the county for this laudable purpose ; the assessment running for several years, so that it would not be burdensome.
"The members of the Legislature from this county coincided with the views of the Commission of Soldiers, and accordingly laws have been passed, and money raised by assessment upon the people of the entire county for this purpose.
"The assessment so made was cheerfully acquiesced in by the people of the county, and a sufficient amount of money has been raised to warrant the commence- ment of the structure proposed and its speedy comple- tion.
"In point of fact, very much of the work has been done and is stored in suitable places, and it is confi- dently hoped that unless checked or frustrated by delays in the Court, that this splendid Monument can be completed and dedicated during the Fall of the pres- ent year.
" When it was substantially determined that a Monu- ment should be erected, the Monument Commissioners took counsel of the Soldiers of the county, who were the most immediately interested in its erection, and after full and free discussion, the Soldiers of the city and county were practically unanimous that the Mont- ment should be erected in the southeast section of the Square.
"The Monument Commission (these defendants ) were unanimous in their opinion, possibly with one exception, that all things being considered, such loca- tion was the very best, and so they decided.
"They desired, however, before proceeding with the plans for the Monument and its surroundings, that everything should be done lawfully and properly, with- out haste, with all care and precaution, and with a due regard as to the responsibilities placed upon them.
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Further, that all possible authority should be obtained ; therefore it was that in April, 1888, the Legislature of the State passed an act, authorizing the appointment by the Governor of twelve persons, who should consti- tute the Monument Commission.
" Under the authority of such act, the Governor appointed the following named gentlemen as such Commission, and these gentlemen, thus far, have faith- fully and zealously performed all the work assigned to them : William J. Gleason, Levi F. Bauder, J. B. Moly- neaux, Edward H. Bohm, Levi T. Scofield, Emory W. Force, James Barnett, J. J. Elwell, Charles C. Dewstoe, James Hayr, R. W. Walters, M. D. Leggett.
"The plans for the Monument, and all details and specifications for it, have been by them patiently and carefully examined, and the work of Levi T. Scofield, architect-a man not of local only, but of national rep- utation-was the designer of the Momument and the artistic features of it, receiving, of course, suggestions from various members of the Commission in regard to it ; the result of which will be, that if this Monument is erected in its proposed location, it will be one of the most beautiful and artistic monuments to be found in the world.
" There has been some misapprehension on the part of the people, and, no doubt, of these plaintiffs in these cases, as to the character of this proposed structure, and of its character and detail I will mention hereafter.
"Section 3 of the act to which I have referred is as follows :
"Said Board of Monument Commissioners, when duly organ- ized, shall have full power to select a place for the proposed Monu- ment, and shall have the exclusive control of the building of said Monument, and the plan for the same, and are empowered to have designs and models prepared, and are hereby authorized, if they so determine, to locate the site of such Monument on the southeast side of the 'Public Square' so called, at the junction of Superior
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and Ontario Streets, in the City of Cleveland; and in case they so determine, the Park Commissioners of said City are hereby author- ized and required, on demand in writing by said Commissioners, at the expense of said City, to remove the monument of Commodore Perry, now in said southeast corner of said Square, to some other square or public park in said city, and all other obstructions there- in; but if the said Board of Monument Commissioners do not de- termine to locate the site for said Monument in said southeast square of said Public Square, they are authorized to purchase or procure any other site for the same within said county.
"The Commission deemed the act of the General Assembly sufficient to give them full power in the prem- ises as to the selection of the site for the Monument, yet desirous of proceeding in full harmony and accord with the Legislative department of this City government, the City Council was respectfully requested to take such action in the premises as it might deem proper, and accordingly this preamble and resolution was adopted by that body June 29, 1888 :
"WHEREAS, The Monument Commission of Cuyahoga County, authorized by the General Assembly of the State to have full charge of the erection of a Monument commemorative of the Soldiers and Sailors of Cuyahoga County, have selected, in accordance with the provisions of law, the southeast section of the Public Square as a suitable site for such Monument ; therefore be it
"Resolved, That the consent of the Common Council of the City of Cleveland be and it is hereby granted to such Commission to erect such Monument on the site so selected.
"Having thus obtained the necessary permission from every possible authority, from that time to the present all plans and specifications for the Monument have been made with reference to its location in the section of the Square thus selected.
" Right here it must be remembered that the Park Commissioners, at whose instance the suit by the City was brought against these defendants, made no objec- tion to the occupation of the other sections of the Square, for in their communication to the Chairman of the Commission they say that while they find some
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objection to the site selected, and while such objections may not be insuperable, such objections apply only to the quarter of the Square selected by the Soldiers' Com- mission ; should either of the other quarters be deter- inined upon, the Commissioners would not hesitate in giving a ready consent.
"Why this objection to the southeast section of the Square on the part of the Park Commissioners ?
" The answer is known to many, that it was a cher- ished idea, or the plan of at least one of the Commis- sioners, that Euclid Avenue should be extended through this section, and a portion of the southwest section of the Square, until it intersected Superior Street. In such case, the East Cleveland Street Railroad Company could run its cars diagonally through the Park, and thereby save two curves.
"By the directions of the Park Commissioners, this suit was brought by the City Solicitor to enjoin the Commission from the occupancy of the southeast sec- tion of the Square.
"This seems to be rather an irregular way of pro- cedure, as I will show :
"First. We have authority from the Legislature to place the Monument there, and of the power of the Legislature in this regard I shall refer hereafter.
"Second. The authority of the Legislative Munici- pal body. Hence it is that I claim that the City has not, nor should it have any standing in Court in this case irrespective of other legal, valid and substantial reasons.
"Judge Sherwood, in the case of Barris vs. The Cleve- land City Cable Railway Company, decided September 16, 1890, referring to Section 2640 of the Revised Stat- utes, wherein it provides that the Council shall have the care and supervision of public highways and pub- lic grounds, says : 'If the park is to be classed as pub-
THE COLOR GUARD.
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lic grounds, then there is jurisdiction and control in the Council.'
"Further, he says : 'The City Council has the authority under the statute to determine what improve- ments shall be made there.'
" And in this connection, I refer the Court to Section 1692 of the Revised Statutes, paragraph 32; also to Section 2640.
"And yet in the petition of the City in this case, it is said that the Commission 'without any warrant or authority of law whatever, threaten to, and, unless re- strained therefrom, will appropriate a large portion of said section ' for the Monument.
"Again, under Sections 1774 and 1777, I claim that the City Solicitor had no right or authority to bring this suit without the authority of a resolution or ordi- nance of the City Council.
" There is no allegation in the petition that the City has abused its corporate powers in granting to the Com- mission the right to place the Monument in the Square.
"Furthermore, I claim that when the City Council granted such authority to the Monument Commission, that such grant was a contract by and between the City and the Commission, and that the City is thereby estopped from interfering in any manner whatsoever with such contract, unless such contract is being evaded or violated, and certainly that cannot be claimed, for the Commission are endeavoring to live up to it faitli- fully.
"Waiving, however, for the present, the question of the right of the City to bring this case, it is an estab- lished rule of law that when the rights of the complain- ants are doubtful, an injunction will not be allowed ; and I submit that neither for the City nor the complain- ants in the other case is there legal or tenable grounds upon which either can stand for a moment and ask
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that an injunction be granted restraining these Com- missioners from progressing with their work.
"The placing of the Monument upon the Public Square is a legitimate use of the Square, and so far as the complaints in either of the cases are concerned, it is not a taking of private property for public use within the constitutional provision, and I refer your Honor to 27th N. Y., pages 203, 213 and 214; 31st N. Y., pages 183 and 193 ; 36th Pa., 104.
" There can be no doubt of this proposition that the use is perfectly legitimate ; however, should such use be doubtful, and no irreparable injury is inflicted by the construction of a Monument, then this is not a proper case for an injunction, and I apprehend that it would be rather an arduous task for my friends to obtain affi- davits of reputable persons who would claim that the erection of the Monument on the section of the Square proposed would damage their property one iota.
"On the contrary, nine-tenths of the people of the city would say that it would be a great benefit to the property of these plaintiffs to have a Monument erected in the proposed section.
" The Court, perhaps, is familiar with the location of the Probasco Fountain in the City of Cincinnati. The fountain and esplanade or plaza were erected on a for- mer market space. The buildings surrounding such market space were of an inferior character. Since the placing of the fountain in that locality, magnificent buildings have been built all around it. It is a popular attraction and ornament to the place, and the business in that locality has increased tenfold.
" There is a misapprehension on the part of many as to the nature and extent of the dedication of the Pub- lic Square, and a brief history of it will not be out of place at this time.
" The Connecticut Land Company were the original
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owners of the land which is now embraced within the City of Cleveland, and this company, in 1796, caused a survey and town plat to be made of what was then des- ignated as the City of Cleveland, the name Cleveland being given it from the name of Gen. Moses Cleaveland, whose statue now stands in the southwest section of the Square.
"The original surveying was done under the direc- tion of August Porter, assisted by Seth Pease and Amos Spafford as principal surveyors.
" By the provisions of an act of the Territorial Legis- lature that town plats should be recorded, the minutes of the survey of 1796 were retaken by Amos Spafford, and so we find a record with the Pease notes and rec- ords, describing certain streets, as follows :
"Superior Street, beginning at the west end where it connects with Water Street, 20 chains to the Square ; thence keeping the same course across the Square to a corner post on the other side of the Square.
"Ontario Street east side, from Huron Street to the Square, is 14 chains; from the Square to Lake Street is 16 chains; from Maiden Lane to the Square is 6 chains 70 links; from the Square to Lake Street is 16 chains.
"The Square is not described in the Pease minutes other than in the description of Superior and Ontario Streets. However, in Spafford's minutes, the Square is described :
" The Square is laid out at the intersection of Superior Street and Ontario Street, and contains ten acres. The center of the junc- tion of the two roads is the exact center of the Square.
" This is all there is to the so-called dedication. Yet it was a good dedication for a Square, from the fact of the surveys, the laying out of lots bounding on the Square, their adoption by the Connecticut Land Com- pany, the subsequent sale of such lots by the company, and its use by the public.
"Though there was no municipality at the time of
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such dedication, yet it is well settled that in cases of dedication the law does not require any specific guaran- tee in esse at the time, to whom the fee could be granted, or in whom the title could vest.
" If there was none capable of taking at the time of such dedication, the fee would remain in abeyance until there was a grantee capable of taking, as was de- cided in Sixtlı Peters.
"It will be seen, therefore, that there was no qualifi- cation in the dedication of the so-called Square, and I claim that when land is dedicated as a public square without other qualifications, and such dedication ac- cepted, the particular use to which it is directed is with the municipality.
" In Dillon's work on Municipal incorporations, para- graph 645, the learned author says :
" Where the words 'public square' are used on a plat, this is an unrestricted dedication to public use, and the use varies according to circumstances, to be judged of and directed by the proper local authorities or corporate guardian, subject to the control of the laws and the courts.
"Therefore, where there is an unrestricted dedica- tion, as in the case at bar, the use to which the Square may be put is necessarily left to the sound discretion of the Legislative Municipal body, and no wanton acts by that body can be presumed.
" It is a well settled principle of equity jurisprudence that a Court of Equity will not sit in review of proceed- ings of Municipal tribunals where matters are left to the discretion of such bodies. The exercise of such discretion in good faith is conclusive, and will not be disturbed in the absence of fraud or flagrant abuse of such discretion. And it is also well settled that when a private party seeks to restrain the action of suchi tribunals, he must show some special and peculiar injury sustained by himself independent of and distinct
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from the common and general injury shared by the public alike, in default of which equity will not in- terfere.
" I come now to the discussion of the question as to whether the erection of this work of art in the Public Square comes within the appropriate use and object to which the Square was dedicated.
"It must be remembered, in this connection, that for years there stood upon the southwest section of the Square the County Court House, occupying a larger tract of ground than that proposed for the Monument, and I claim such was an appropriate and legitimate one, and in this assumption I am squarely borne out by the decision of the Supreme Court of Ohio, in the case of Langley vs. Trustees of the Town of Gallipolis, Sec- ond Ohio State, from which I quote :
" Many decisions may be found in the courts of the several States with reference to the use and occupancy of squares and parks, especially parks, but as this Court has heretofore held, 'parks are much more limited in the use and purpose to which they may be devoted than squares.'
"We need go no further than the Supreme Court of our own State for authority upon this subject, for the Court says in the case I have just cited : 'But the use or beneficial purpose of a public square or common in a city or village, where no special limi- tation or use is prescribed by the dedication, is such that it may be improved and ornamented for recrea- tion and health, or for the public buildings, or as a place for the transaction of public business of the peo- ple of the city or village, or both for the purposes of pleasure and business, at the discretion of the Munic- ipal authorities.'
"Some of the definitions, as given by the courts, of squares and parks, are: 'A public square is not de- signed for a highway or a thoroughfare for all sorts of
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conveyances, but is intended as an ornament of a town -a place of recreation and amusement.'
"Again, 'a park is, in a strict sense, a piece of ground enclosed for the purposes of pleasure, exercise, amuse- ment or ornament.'
"'A park is an enclosed space in a city or village set apart for ornament.' 'The square was intended for beauty and adornment, and for the health and recrea- tion of the public.'
"'The word 'square' as a term of dedication indi- cated a public use, either for purposes of free passage or to be ornamented for grounds of pleasure, amuse- ment or recreation.'
"I ask the Court, then, is the use of this Square for the Monument inconsistent with its use under the defi- nitions here given ?
"And as to the intention of the Municipal authorities in this matter way back in the sixties, it may be remarked in passing, that by an ordinance they gave the name of Monumental Square to this ten acres of ground situated in the heart of the city.
"The Supreme Court in the case of Baker vs. John- son, Twenty-first Michigan, 342, says: 'Where land has simply been designated as a public square, it did not necessarily mean more than that it was for public uses, without showing what uses were intended. The space may have been destined for commons, or schools, or county buildings, or burial places, or any other use which could be legitimately regarded as public, and nothing but extrinsic evidence or subsequent agreement could remove the ambiguity.'
"Further along in the same case the Court says: · The plat shows that it was to be kept as a block, sep- arate from the adjacent streets and bounded by their exterior lines. It was meant for some other passage than a passageway.
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"In the case at bar, here was a block or square with lots laid out abutting upon it, separated from the adja- cent streets, and hence it is, under the last decision re- ferred to, that these sections were meant for some other purpose than a mere use for cross-walks.
"And no one will dispute the authority of the City to close all of these cross-walks, and to devote the space occupied by them for any other legitimate purpose for which a square or park is intended.
"However, the walks in that section will not be de- stroyed, nor will it practically destroy that section of the Square for any other use, as is alleged in the petition of the City, for it is the design, and so the plans show, and so we affirin the fact to be, that there are still to be diagonal walks, and only a few more steps will be nec- essary for one who desires to cross the Square diagonally in that direction.
" On account of the fountain in the northwest section of the Square, a few more steps are required of the pe- destrian, but no one has ever wished to displace the fountain on that account.
"Is there any great irreparable injury inflicted upon the public by such a trifling matter? Certainly not.
" Now the City claims in its petition that these cross- walks in the southeast section, by reason of the erection of the Monument there, will be destroyed, and that the view from Euclid Avenue will be obstructed, and that great and irreparable injury is occasioned thereby, and this, as I will show you from their petition, is substan- tially the only grounds upon which they base their claims for an injunction. Obstruct the view of the Park ? A single glance, your Honor, at the style of the Monu- ment as it appears on the plans before you sufficiently refutes such an allegation. Vet, the Corporation Coun- sel says in argument, that the City has full authority to
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place upon that or either section of the Square-public buildings.
"So we find, therefore, that this Soldiers' Commission have no right to occupy this section of the Square with a beautiful public Monument, a public recognition of the 'boys in blue,' because, forsooth, it interferes with a cross-walk and obstructs the view from Euclid Avenue ; yet the City can place an immense building there, which would certainly destroy all the cross-walks and materially obstruct the view of the Park, with irreparable injury to no one. Such, you know, is the position of the City.
" There is some, but very little opposition to the mov- ing of the statue of Commodore Perry, which now stands in the southeast section of the Square, but this opposi- tion arises from the simple fact of its having been already once moved. My idea is that one more removal would be about the correct thing, and that removal should be to Lake View Park, say at the foot of Ontario Street. Then, instead of pointing back to a fish market as he now is, he would stand on the bank of the lake facing toward the city, and would be pointing to the beautiful lake where he won his great victory.
" However, the removal of the statue has very little to do with this case, and I only mention it for the rea- son that the City says in its petition 'that there has been placed upon said section of said Square, near the center thereof, a large stone statuary monument known as the statue of Commodore O. H. Perry, and that such monument is of great use and value to said City, its citizens and the public.'
"And yet the City says in its petition that if this magnificent Monument, costing over $200,000, is erected in that section, that 'it will result in irreparable injury to the citizens and the people.'
"Consistency, thou art a jewel.
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BRONZE PANEL IN FACE OF PEDESTAL-ARTILLERY GROUP.
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