ered. He was giving the orders, and, knowing the above facts, and also claiming to know that the cranks to the derrick were not properly fitted, he deliberately directs that one of the cranks be removed.

The occurrence is a very regrettable one, but, unless we are to establish a new rule of law, we must affirm the judgment. See Coleman v. Cartage Co., 174 Mich. 231 (140 N. W. 539), and the cases cited therein. The judgment is affirmed.

BROOKE, C. J., and PERSON, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

DODGE v. NORTH END IMPROVEMENT ASSOCIATION.

1. INJUNCTION EQUITY - PARKS

USE-DEDICATION-REMEDIES.

CONVEYANCES-INAPPROPRIATE

Equity will interfere, at the instance of an adjacent proprietor, to restrain a city from making unlawful use of property dedicated by the original owner as a park, with the express limitation that no other use should be made of it, provided that the municipality makes use thereof in any manner not intended, and inappropriate for a public park.

2. MUNICIPAL CORPORATIONS-PARK-PAVILION.

A pavilion erected in a park to serve the purpose of a waiting room for cars and of shelter for those who made use of the park, and as a refreshment stand, and properly situated therefor, did not invade the limitations of the dedication whereby it was expressly stipulated that the

property should be used for a public park and for no other purpose.1

A public park may be defined as an open or inclosed tract of ground adapted to and set apart for pleasure, recreation, ornament, light and air of the inhabitants of the town in or near which it is located.

Appeal from St. Clair; Law, J. Submitted October 7, 1915. (Docket No. 20.) Decided December 21, 1915.

Bill by Charles K. Dodge against the North End Improvement Association and others for an injunction. From a decree for defendants, complainant appeals. Affirmed.

Stevens, Graham & Stevens, for complainant.

Carl A. Wagner and Burt D. Cady, for defendants.

MOORE, J. In April, 1912, the late Senator Thomas W. Palmer and his wife deeded to the city of Port Huron about 10 acres of land. The deed contained the following language:

"It is provided that the intent and purpose of this indenture is to convey to the city of Port Huron the above-described land and premises to be used only as a public park and for such use only the land abovedescribed is conveyed in perpetuity; which said land is to be improved and properly cared for by the grantee herein, and is hereby dedicated to the use of the public forever. And provided further that nothing in this conveyance contained shall be so construed as to defeat reversion to the grantor or his heirs in case said property should ever be used for any other purpose than that above designated."

The testimony is that the defendant, the North End Improvement Association, is incorporated.

'As to what use of parks amounts to diversion from the use for which they were dedicated, see notes in 25 L. R. A. (N. S.) 980, 50 L. R. A. (N. S.) 465.

189 Mich.-2.

"It was organized for the purpose of improving the north end of the city in any way they could. to put it in a more sanitary condition, and trying to induce the people to keep their premises in a sanitary condition, and to beautify the same."

On July 23, 1912, a communication in writing from the North End Improvement Association to the city commission requested permission to build a pavilion on Palmer Park close to the corner of Garfield street and Gratiot avenue. On August 14, 1912, permission in writing was issued by the city commission to the North End Improvement Association to erect this building on the northeast corner of Gratiot avenue and Garfield street, the building to be 16 feet wide, 30 feet long, and 8 feet in height, and was to conform in construction to a type open-pavilion-class building. The building was started in August, 1912, and was completed in October, 1912.

The complainant owns a house and grounds valued at $5,000 across the street from Palmer Park. He claimed his premises were decreased in value by the erection of the pavilion, that it shut off his view of the river, that it and its surroundings constituted a nuisance, and that it was used simply as a railroad waiting station and was not an adjunct of the park, and filed this bill praying, among other things:

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"That the building erected on said park property may be required to be removed. That said premises may be decreed to be used for park purposes only. That your orator may be awarded such damages as it may be shown he has wrongfully sustained. That your orator may have such other and further relief in the premises as equity may require and to your honor may seem meet."

The city filed an answer in which appears the following:

"Says, however, that it understands that the inhabitants of the city located in the vicinity of the said park are greatly interested therein, and proposed to this defendant that for the purpose of promoting the public convenience, safety, and pleasure, and to facilitate the use by the public of the said park, that they would construct thereon with the permission of the city a public waiting room wherein persons resorting to the park might find shelter in the event of rain, inclement weather, or excessive sunshine. That for this purpose this defendant permitted the erection on the southeast corner of said park, adjoining the street railway, of a small structure designed as a waiting room and public shelter. And submits that under the terms of the gift the officials of the city are made the sole judges as to the character and extent of the changes to be made in the said park and as to what modification thereof is best needed to secure the comfort, convenience, and public enjoyment of the aforesaid park.

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"This defendant avers that the building so erected is suitable and sufficient for the purposes for which it is constructed; that its location will best serve the convenience of the public."

The improvement association also filed an answer. After a full hearing before a circuit judge who lives at Port Huron, he dismissed the bill of complaint. The case is brought here by appeal.

The trial judge filed an elaborate written opinion, from which we quote:

"During the summer of 1912, the North End Improvement Association promoted a scheme to place a building on the southeast corner of said out-lot 16 for reasons which will presently appear. Gratiot avenue is a part of the main thoroughfare through the city of Port Huron in a northerly and southerly direction. In this street and its extensions is a street railway track upon which are operated electric cars. Garfield street is about two miles north of the center of the business part of the city of Port Huron and about two miles south of the northerly city limits. In the northerly part of the city are located two cemeteries, a large

public park, a private park and resort, and several beaches which are used by many people, both by inhabitants of the city and by strangers, as summer resorts. During some portions of the year only part of the cars of the street railway are operated north of Garfield street; hence, people going from the city to points north of Garfield street frequently have occasion to wait at this street for cars which will carry them to the cemeteries, parks, or resorts in the northerly part of the city. The main object which the North End Improvement Association had in placing the building heretofore mentioned on the southwest corner of lot 16 was to provide a shelter for people who had occasion to wait for cars at Garfield street.

"In the summer of 1912 this association, by voluntary labor and contributions, cleared the ground of shrubs and rubbish, took down an old unsightly post and wire fence, and constructed a one-story building in its dimensions 10 feet north and south and 30 feet east and west, on the southwest corner of lot 16 directly across Gratiot avenue from complainant's residence. A partition was run through this building so that the west end of the building nearest Gratiot avenue is an open pavilion 12 feet by 16 feet in size and in the east end an inclosed room about 18 feet by 16 feet in size. This building was constructed of good materials and neatly painted. It was completed as it now stands when this suit was commenced on June 25, 1913. It was lighted by electric lights. This building was planned and constructed with the full knowledge and approval of the city commission of the defendant city, without cost to the city. The object which inspired the North End Improvement Association to construct this building was to furnish a shelter for people who had occasion to wait at Garfield street for the north-bound street cars to the cemeteries, parks, and resorts located in the northerly part of the city. In order that the building might be looked after properly, the North End Improvement Association placed the defendant Mary I. Thayer in charge of the building and gave her permission to sell light refreshments therein such as are usually sold in public parks, as compensation to her for looking after the building. At the time this bill of complaint was filed. Mrs.