Boise City v. Wilkinson

• Decision Date: 27 March 1909
• Citation: 16 Idaho 150,102 P. 148
• Parties: BOISE CITY et al., Appellants, v. WILLIAM WILKINSON et al., Respondents
• Court: Idaho Supreme Court

102 P. 148

16 Idaho 150

BOISE CITY et al., Appellants, v. WILLIAM WILKINSON et al., Respondents

Supreme Court of Idaho

March 27, 1909

PUBLIC LANDS-TOWNSITE ENTRIES-BY MAYOR-TRUSTEE-POWERS OF LEGISLATURE OVER-RIGHTS OF OCCUPANTS-DEDICATION OF STREETS AND ALLEYS.

1. Under the provisions of sec. 2387, U.S. Rev. Stat., certain portions of the public land which have been settled upon and occupied as a townsite, may be entered by the probate judge or mayor in trust for the several use and benefit of the occupants thereof, according to their respective interests.

2. The execution of such trust, as to the disposal of the town lots and the proceeds of the sale thereof, is authorized to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same is situated.

3. Under the provisions of an act of the legislature for the disposal of lands in the Boise City townsite, the mayor was prohibited from conveying to any person any portion of any street or alley that had been declared public highways.

4. The legislature of the territory had no authority whatever to vacate any streets or alleys in said city that had been dedicated to the public by the city council.

5. On November 23, 1867, the mayor of said city made his application to enter the townsite of Boise City as per official plat filed with said application, and thereafter, on May 2, 1870, a patent to said townsite was duly issued by the United States to the mayor, conveying to him in trust the lands included within the plat, which plat showed the lots blocks, streets and alleys of said city and included no land but what was platted, and said entry included lands in five different sections as per government survey. The patent so issued to the mayor related back to the date of the entry.

6. The mayor of Boise City on July 8, 1871, executed a deed to one Cyrus Jacobs, purporting to convey to him a portion of Idaho street. Held, that the mayor had no authority whatever to execute said deed.

7. The case of Scully v. Squier, 13 Idaho 417, 90 P. 573, cited and distinguished.

8. While the doctrine of equitable estoppel does not as a general rule apply to a municipal corporation where it represents public rights and interests, still there are special and peculiar cases in which the municipality will be estopped to assert a stale legal and inequitable claim. Such an equitable estoppel in pais will be invoked against the city where its mayor, as trustee, acting under an act of the legislature (although such act was void) deeded a portion of a street to an occupant, and the city has recognized the private ownership therein for a period of thirty-eight years, and the occupant has placed valuable and permanent improvements on such portion of the street, and to allow him to be ejected would work an effectual fraud upon the claimant and occupant.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action in ejectment to recover for the city a portion of Idaho street. Judgment for the defendants. Affirmed.

Judgment sustained, with costs in favor of respondents.

Cavanah & Blake, Chas. M. Kahn, and Morrison & Pence, for Appellants.

"The dedication of said streets was complete and under such dedication the city, the representative of the public, had the right to take possession of and use them whenever the progress and development of the city should make it necessary to do so." (Boise City v. Hon, 14 Idaho 272 94 P. 167.) In the Hon case it was something over thirty years after the dedication when an attempt was made by the city to open the street. In the case at bar there can be no question but what the filing of the plat and the issuing of the patent was a valid dedication. This matter was settled in the case of Boise City v. Flanagan, 6 Idaho 149, 53 P. 453.

After such dedication has taken place it is absolute and irrevocable, and no territorial legislature, city council or municipal officer can do anything to destroy the right of the public in said property for street purposes, and the territorial act entitled, "An act of the legislature to vacate Idaho street" was entirely void as an unauthorized act of the legislature contravening an act of Congress, and the deed from Himrod to Jacobs of the property in controversy is void and of no effect. (Town of Aspen v. Rucker, 10 Colo. 184, 15 P. 791; Newhouse v Simino, 3 Wash. 648, 29 P. 263; Clark v. Titus, 2 Ariz. 147, 11 P. 312; Ashby v. Hall, 119 U.S. 526, 7 S.Ct. 308, 30 L.Ed. 469; Story v. New York Elevated R. R. Co., 90 N.Y. 122, 43 Am. Rep. 146; People v. Kerr, 27 N.Y. 188.)

To permit an equitable estoppel to defeat the right of the city to that portion of Idaho street would be to say that Jacobs and his successors obtained possession to the property through void acts which gave them no rights at all, but by reason of subsequent actions of the city and its officials, under these void acts, Jacobs and his successors who never had any title to the property in question became vested with a title. An estoppel cannot be raised under a void act. ( Oregon R. & Nav. Co. v. Oregonian Ry. Co., 130 U.S. 1, 9 S.Ct. 409, 32 L.Ed. 837; Central Trans. Co. v. Pullman Palace Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55; St. Louis Vandalia & Terre Haute R. Co. v. Terre Haute & Ind. R. Co., 145 U.S. 393, 12 S.Ct. 953, 36 L.Ed. 748; Thomas v. West R. Co., 101 U.S. 71, 25 L.Ed. 950; Penn. R. Co. v. St. Louis, A. & T. R. Co., 118 U.S. 290, 6 S.Ct. 1094, 30 L.Ed. 83-284.)

"A contract made by a corporation beyond the scope of its power, express or implied, on a proper construction of its charter cannot be enforced or rendered enforceable by the application of the doctrine of estoppel." (Union P. A. Co. v. Chicago R. I. & P. Ry. Co., 163 U.S. 564, 10 S.Ct. 1173, 41 L.Ed. 265; Kennedy v. California Bank, 167 U.S. 362, 17 S.Ct. 831, 42 L.Ed. 198; McCormick v. Market Nat. Bank, 165 U.S. 537, 17 S.Ct. 433, 41 L.Ed. 817; Merchants Bank of Valdosta v. Baird, 160 F. 642.)

The parties relying upon estoppel must allege it with particularity and show that they were ignorant of the true condition, and acted upon misrepresentation of the other party to their prejudice. (Ashley v. Pick (Or.), 100 P. 1103.)

K. I. Perky, John F. MacLane, and J. F. Colvin, for Respondents.

The construction of sec. 2387, U. S. Rev. Stat., is now well settled and free from doubt. The entry is made in trust for the occupants of the townsite, and their rights to the parcels of land occupied by them become vested when the entry is made. Neither the trustee nor the surveyor can defeat or abridge the rights of the occupants to their lots, nor the rights of the people collectively to the streets and alleys, by preparing and filing a plat which interferes with outstanding rights of possession or travel. The surveyor and trustee must, in making and filing the plat, conform the lines of the streets to existing lot lines, and cannot run the street over land in the occupancy of an individual, nor on the other hand in such a manner as to deprive any other lot occupant of the right of ingress or egress afforded him by a recognized street or alley. (Hall v. Ashby, 2 Mont. 489; Parchen v. Ashby, 5 Mont. 68, 1 P. 204; Ashby v. Hall, 119 U.S. 526, 7 S.Ct. 308, 30 L.Ed. 469; City of Pueblo v. Budd, 19 Colo. 579, 36 P. 599; Bingham v. Walla Walla, 3 Wash. 68, 13 P. 408; McCloskey v. Pacific Coast Co., 160 F. 794, 87 C. C. A. 568; Scully v. Squier, 13 Idaho 417, 90 P. 573.)

Jacobs was one of the beneficiaries of the trust created by the act of Congress and the entry made thereunder. He was entitled to receive the deed as evidence of his rights, and the trustee could not have refused to give it to him. But the deed has a further and greater effect. It may have been that prior to the execution of the deed there was a doubt as to Jacobs' rights. But the trustee was authorized to pass upon those questions in the first instance, and opportunity was given to adverse claimants to contest any application by suit in the district court, and if no such contest should be filed the applicant became entitled to his deed, and such deed became conclusive as to all matters prior to the issuance of the deed affecting the claimant's right thereto. It has the same effect in determining matters of fact as a patent from the government. (Twine v. Carey, 2 Okl. 249, 37 P. 1096; Myers v. Berry, 3 Okl. 612, 41 P. 580; Anderson v. Bartels, 7 Colo. 256, 3 P. 225; Taylor v. Winona & St. R. R. Co., 45 Minn. 66, 47 N.W. 453.) Such deed cannot be questioned in an action of ejectment, but only by a direct attack for fraud or the like. (Larned v. Jenkins, 113 F. 634, 51 C. C. A. 344, and cases last above cited; Green v. Barker, 47 Neb. 934, 66 N.W. 1032.)

The legislature, no more than the trustee, could defeat Jacobs' rights to the premises in his occupancy. (Ashby v. Hall, supra; City of Helena v. Albertose, 8 Mont 499, 20 P. 817; City of Pueblo v. Budd, 19 Colo. 579, 36 P. 599.) The surveyor in platting Idaho street, and the legislature in adopting his plat by the act referred to, committed an error in so far as they attempted to destroy the rights of Jacobs. It was evidently in recognition of this error, and in an endeavor to correct the same, that the act in question was passed. Can there be any question but that the legislature had the power to pass this act? Could not that body, for the purpose of clearing a title which it had unauthorizedly clouded, undo their own wrongdoing? This act recites that these premises had never been used as a street. Now, whether this statute be private or public, its recitals are, if the act be private, conclusive evidence as between the parties, or, if...