City of Helena v. Albertose

• Decision Date: 12 February 1889
• Parties: CITY OF HELENA v. ALBERTOSE et al.
• Court: Montana Supreme Court

8 Mont. 499

CITY OF HELENA

v.ALBERTOSE et al.

Supreme Court of the Territory of Montana.

February 12, 1889.

Appeal from district court, Lewis and Clarke county.

The record shows the following facts: In March, 1869, prior to the incorporation of the city of Helena, the probate judge of Lewis and Clarke county made entry in the land-office for a town-site patent to the land which is now included within the limits of the city of Helena. In June, 1872, a patent including said lands was granted to the then probate judge of said county, in trust, under the provisions of the act of congress of March 2, 1867, for the benefit of the occupants of said town-site. A map of said town-site was filed in the office of the recorder of said county. The date of the filing does not appear. We presume that, before such filing, the map had been approved and accepted by the county commissioners, and that the preparation, filing, and approval of the said map were in compliance with the laws of this territory cited below, enacted for the purpose of establishing rules and regulations for the execution of such a trust by the trustee. As required by that law, the plat or map shows the blocks, lots, streets, and alleys. The premises which are the subject of this action are included in Lawrence street, as shown by said map. The record further shows that the defendants or their predecessors and grantors were at and before the entry for patent, and ever since have been, in actual possession and occupancy of the lands mentioned in the complaint; and that said lands were not used as a street at the date of the entry for patent, and that they never have been so used. The record further shows that neither the defendants nor their predecessors in interest ever applied to the probate judge for a deed of the premises, as required by section 1207, Rev. St. Mont. Since 1872, defendants have paid taxes on said premises for one or two years. The plaintiff brings this action of ejectment to recover the possession of said property. The complaint alleges title in the plaintiff, and the unlawful withholding by the defendants. The answer denies the plaintiff's title; asserts the occupancy of the premises by the defendants, and their predecessors and their grantors, during all the time as stated before; and further sets up the statute of limitations. These latter two defenses were put in issue by the replication. The trial was had before the judge without a jury. The decision and judgment were for the defendants. Plaintiff appeals from an order denying a motion for a new trial.

A. C. Botkin, for appellant.

Wade, Toole & Wallace, for respondents.

BACH, J., (after stating the facts as above.)

The errors of law claimed to have been made by the trial judge in admitting certain testimony against the objection of appellant must be disallowed.

There are two such errors. The first is as follows: The defendants offered in evidence a certain deed. To this counsel for plaintiff objected, as follows: “I object to its introduction.” The second error is based upon an objection which was as follows: “I object to the testimony as incompetent.” In order that objections to testimony may avail a party on appeal, they must state specifically the grounds of objection; and to say that “testimony is incompetent” is not a good objection. The reasons which make such testimony incompetent must be given. See Sneed v. Osborn, 25 Cal. 619, and cases cited. There are exceptions to this general rule, but they do not apply to this case, and therefore need not be mentioned. The plaintiff, however, loses nothing by this summary disposition of his objections; for, if our view of the case is correct, plaintiff was not prejudiced by the ruling of the court already referred to.

This is an action of ejectment. The plaintiff bases its right to recover upon title to the premises. It must therefore show title, or it must fail in this action. Talbert v. Hopper, 42 Cal. 398-402;Treadway v. Wilder, 8 Nev. 91-99. Plaintiff has been so earnest to demonstrate that the defendants have no title upon which to defend that it has entirely forgotten its own title, except in so far as its title is based upon dedication.

The laws governing the case are sections 2387 and 2391 of the United States Revised Statutes, (Act Cong. March 2, 1867,) and sections 1207-1211 of the Revised Statutes of Montana, pp. 665, 666; which laws are as follows:

Section 2387, Rev. St. U. S.: “Whenever any portion of the public lands have been or may be settled upon and occupied as a town-site, not subject to entry under the agricultural pre-emption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge of the county court for the county in which such town is situated, to enter at the proper land-office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust as to the disposal of the lots in such town, and the proceeds of the sale thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated.” Sec. 2391. “Any act of the trustees not made in conformity to the regulations alluded to in section twenty-three hundred and eighty-seven shall be void.”

Statutes of Montana (Rev. St.) as follows: Sec. 1207. “And the said incorporate authorities, or judge of the probate court, as the case may be, shall within three months from and after the entry of such town-site, unless a survey and accurate plat thereof has previously been made, cause the same to be surveyed, and a plat thereof made; which said survey and plat thereof shall conform as near as may be to the existing rights, interest, and claims of the occupants thereof. Said plat and survey shall be submitted...