Page:North Dakota Reports (vol. 1).pdf/357

 and will maintain the same exempt from taxation in as good repair as when accepted, and will thereafter put upon such park such improvements only as by them deemed suitable and necessary for the purpose of a public park, and will maintain it free from any nuisance whatsoever.” This resolution was not presented to or signed by the mayor.

In pursuance of the foregoing agreement, the trustees proceeded to improve the land for park purposes, the appellant furnishing $3,580 of the money so used, and prior to January 1, 1885; the improvements were completed as contemplated, and the deeds from appellant and respondent for the lands agreed to be dedicated were placed in the hands of the trustees, to be delivered to the city. The court found that these deeds were tendered to the city by the trustees on January 5, 1885. The correctness of this finding is challenged, appellant claiming that the tender was prior to January 1, 1885. In our view the point is immaterial. The deeds were not accepted when tendered, and respondent’s deed remained in the trustees’ hands ready for delivery until after January 1, 1886. The city took no further action in the matter until December 17, 1885, when the council passed a resolution refusing to accept said lands, or having anything further to do with the matter. It also appears from the pleadings that about January 21, 1886, respondent withdrew his deed from the trustees without the consent of appellant, and deeded the land to the Jamestown College. Appellant’s theory of this action seems to be that, by such conveyance of the land to a third party, respondent rendered it impossible to carry out the park project, and impossible for appellant to insist upon specific performance upon the part of the city; that after the parties had incurred large expense in improving the land for park purposes, respondent had no legal right to abandon the project, and devote the lands to other purposes, without the consent of appellant; that the establishment of said park would greatly enhance the value of appellant’s adjacent land, and that by the failure to establish the park appellant has been damaged to the extent of his money invested in the improvements, as well as by the loss of such increased value