City of Butte v. Mikosowitz

• Decision Date: 28 June 1909
• Citation: 102 P. 593,39 Mont. 350
• Parties: CITY OF BUTTE v. MIKOSOWITZ.
• Court: Montana Supreme Court

102 P. 593

39 Mont. 350

CITY OF BUTTE v. MIKOSOWITZ.

Supreme Court of Montana

June 28, 1909

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Action by the City of Butte against Joseph Mikosowitz. Judgment for plaintiff, and defendant appeals. Affirmed.

John J McHatton, for appellant.

E. M Lamb, E. S. Booth, and W. E. Carroll, for respondent.

HOLLOWAY J.

This is an action in the nature of ejectment, by the city of Butte against Joseph Mikosowitz, to regain possession of a strip of ground alleged to be a public street. The defendant, in effect, denies that the ground is, or ever was, a public street or highway, or that the city owns an easement over the land for street purposes. By way of an affirmative defense the defendant alleges that he is the owner in possession, and entitled to the possession, of the Lucky Boy quartz lode mining claim, a portion of which is claimed by the city for street purposes; that the plaintiff has heretofore at all times admitted and acknowledged defendant's ownership and right of possession; that in order to erect buildings within the city limits, it is necessary to secure from the city authorities building permits; that the city has granted to the defendant building permits under which he has erected four dwelling houses upon the premises in dispute; that such buildings were erected with the full knowledge and consent of the city and its officers; that such buildings are of a permanent character, and are occupied by the defendant and his tenants; and by reason of these facts the city is, and of right ought to be, estopped from asserting any claim whatever to the disputed ground. These affirmative allegations were put in issue by reply. The jury returned a special finding and a general verdict in favor of the city, and judgment was entered thereon, from which judgment and an order denying him a new trial, the defendant appeals.

Appellant's brief contains 67 specifications of error, but to consider each separately would extend this opinion beyond any reasonable bounds. Many of the specifications relate to the reception and rejection of evidence; and, with the exceptions hereafter noted, these may be disposed of by saying that, after a careful consideration, we have reached the conclusion that the court did not err in any of its rulings with relation thereto.

The complaint alleges that the city is the owner of an easement for street and highway purposes; describes it; asserts that the city is entitled to the immediate possession of the ground; and that the defendant has taken possession of and wrongfully withholds the same. These allegations are sufficient. Billings v. Sanderson, 8 Mont. 201, 19 P. 307; Payne v. Treadwell, 16 Cal. 221; 7 Ency. Pl. & Pr. 336. The ground in controversy is claimed by the city as a part of Jackson street. Prior to 1888 this strip of ground was parallel with, and immediately adjoining, the western limits of the original town site of Butte, and was a part of a considerable area of open public land of the United States. The city relies upon the congressional grant or dedication contained in section 2477, U.S. Rev. St. (Act July 26, 1866, c. 262, § 8, 14 Stat. 253 [U. S. Comp. St. 1901, p. 1567]), which provides: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." This act was approved July 26, 1866. It is contended by the city that the public accepted this grant or dedication, so far as the same is applicable to the strip of ground in dispute, by using the ground as a public roadway from 1883 or 1884 continuously, until 1895 or 1896, when such use was interrupted by the acts of the defendant and his predecessors in interest. We think the evidence offered on behalf of the city, touching the character and extent of the use made of the disputed ground, was ample to go to the jury. In answer to a special interrogatory the jury found that the strip had been used by the public generally as a roadway for 5 years or more, prior to July 1, 1895. The evidence was sufficient to establish a road by prescription, if the land over which it passed had been the subject of private ownership. The purpose of the congressional grant or dedication is to enable the public to acquire a roadway over public lands. The method by which the roadway is to be established is not specified; and it must be held, therefore, that the Congress intended that any acts by which the public might acquire a public roadway over private property, other than by purchase, would be sufficient to constitute an acceptance of this grant or dedication. It is then a rule, recognized by the Land Department and by the Supreme Court of the United States, that whenever a grant or dedication is accepted, such acceptance relates back to the date of the grant or dedication, and any one who takes the land after the acceptance of the donation does so subject to the right which the public has acquired. These principles are well established. A few of the leading authorities only need be cited: Wallowa County v. Wade, 43 Or. 253, 72 P. 793; Smith v. Mitchell, 21 Wash. 536, 58 P. 667, 75 Am. St. Rep. 858; Wells v. Pennington County, 2 S.D. 1, 48 N.W. 305, 39 Am. St. Rep. 758; McRose v. Bottyer, 81 Cal. 122, 22 P. 393; Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47.

The court first admitted, and then withdrew from the consideration of the jury, certain building permits issued by the building inspector of Butte to the defendant and his agents, by virtue of which, it is contended by defendant, he made valuable improvements on the disputed strip of ground. We think the ruling of the court correct. If the city had acquired an easement for public street purposes prior to 1895, its right could not thereafter be prejudiced by the act of a subordinate city officer, even if he had attempted to do so. But in these several instances we...