MILBURN
J.
In
1891, plaintiff and appellant, being then the owner of the
Columbia lode claim, in Silver Bow county, outside of the
boundaries of the city of Butte,-that is, entirely without
the limits and beyond the dominion of the city,-caused to be
surveyedand platted a certain part of the said lode claim, as
appears from the agreed statement of facts, the part of which
material to this opinion being as follows: "It is
stipulated by and between the parties to the above-entitled
action that the same may besubmitted to the court upon the
following agreed statement of facts, which embraces all the
evidence to be used on the trial thereof, in granting or
refusing to grant an injunction: First. That the plaintiff
herein, William L. Farlin, in the year 1891, caused to be
surveyed and platted a part of the Columbia lode claim
patented, and by suitable proceedings for that purpose the
same was annexed to the city of Butte as an addition to said
city known as and called the ' Columbia Addition,'
which saidaddition was duly accepted by the city council of
the said city as the same had been platted and presented by
said Farlin. That the exhibit hereto attached, marked
'Exhibit A,' contains a true and correct plat and
survey of said addition as the same was annexed to said city
and said exhibit is hereby made a part of this statement of
facts. Second. That the tract of land described in
plaintiff's complaint lies within the exterior boundaries
of said addition, but was at all times mentioned in
plaintiff's complaint reserved by said Farlin for mining
purposes. Third. That after the platting and acceptance by
the city of Butte of said addition, an ordinance was passed
by thecity council of the city of Butte for the construction
of a sewer along and under West Park street, in the said
city, and immediately opposite the tract of land so reserved
lying directly west of block No. 1 of said addition; said
tract being 179 feetfrom east to west and 103 feet in depth
from north to south. That afterwards the city council of the
city of Butte by a resolution ordered the last above
mentioned tract to pay a part of the expense of constructing
said sewer, proportioned to its area; the amount of the said
assessment, tax and interest, penalties and charges, claimed
thereon by said city, being the sum of $762.25. That at the
time said assessment was made the said tract of ground
remained unimproved, not divided into lots, and not used or
occupied by any person whomsoever for any other or different
purpose, if at all, than for mining purposes; the said tract
being a portion of the surface ground of the said Columbia
lode claim, patented, as set out in the plat hereto
annexed."
The
said Exhibit A, mentioned in the foregoing statement of
facts, is as follows:
(Image Omitted)
"I,
William L. Farlin, an unmarried man, of Butte, Silver Bow
county, Montana, do hereby certify that I have caused to be
surveyed, subdivided, and platted into lots, blocks, streets,
and alleys, as shown by the plat and certificate of survey
hereto attached, the following described tract of land, to
wit: All of such portions of the Columbia lode mining claim,
lot No. 541, T. 3 N., R. 8 W., and the Saturn lode mining
claim, lot No. 367, T. 3 N., R. 8 W., shown in colors upon
said plat; said tractof land taken together to be known as
the ' Columbia Addition to Butte City, Montana,' and
the streets and alleys thereof as shown on the said plat are
hereby granted and donated to the use of the public forever.
Wm. L. Farlin.
"Acknowledged
January 8, 1891, before Wm. B. Scott, Notary Public Silver
Bow County, Montana. [Notarial Seal.] Regular.
"Malcolm
McDonald, being first day duly sworn according to law,
deposes and says: That he is a surveyor, and that as such
surveyor he executed the survey of the Columbia addition to
Butte city, Montana, as shown by the accompanying plat,
between the1st and 15th days of November. A. D. 1890, in
accordance with an act of the legislative assembly of Montana
approved March 14, 1889; that the blue shading represents the
lots and blocks, the yellow shading the streets and alleys;
and that the dimensionsof all lots and blocks and the width
of all streets and alleys are correctly shown on said plat.
Malcolm McDonald.
"Subscribed
and sworn to before me this 8th day of January, A. D. 1891.
Wm. B. Scott, Notary Public. [Notarial Seal.]
"Office
of the City Clerk of the City of Butte. County of Silver Bow,
State of Montana-ss.: I hereby certify that the plat of the
Columbia addition to Butte city, Montana, was duly and
regularly approved by the city council of said city on the
4thday of February, A. D. 1891. In witness whereof I have
hereunto set my hand and affixed the corporate seal of said
city this 4th day of February, A. D. 1891. P.J. Gilligan,
City Clerk.
"I,
Joseph Harper, city engineer of the city of Butte, county of
Silver Bow, state of Montana, do hereby certify that the
Columbia addition to Butte City, Montana, conforms with
adjoining additions and parts of said city as already platted
as near asthe configuration of the ground will admit. Jos. H.
Harper, City Engineer. Butte, Montana, February 4th, 1891.
"This
plat is approved hereby this 4th day of February, 1891. John
H. McQueeney, Chairman, B. C. C. John Caplice, County
Commissioner.
"Attest:
C. F. Booth, County Clerk."
The district court, having granted a restraining order, upon
a hearing dissolved it, and refused an injunction, prayed
for, to prevent the treasurer from selling the property in
dispute to recover the amount of the assessment for special
cityimprovements. Upon appeal the plaintiff and appellant
raises three questions, to wit: "(1) That the city of
Butte, under an ordinance providing for the making of
improvements within a so-called improvement district, and
assessing the cost of such improvements upon the land within
said district, cannot properly include within such district a
mining claim, or ground not used or occupied for lot
purposes, and which is not a part of the city, or of any
addition to the city; and, further, (2) that thecity of Butte
cannot properly levy an assessment upon, or sell for such
assessment, land used and occupied solely for mining
purposes, and which is not a part of the city, or of any
addition to the city; that, before ground can be taxed or
assessed forcity purposes, it must be by some proper
proceeding brought within the city limits, and made a part of
the city; and (3) that, even when ground is properly a part
ofthe city, and subject to assessment, it can only be
assessed upon the basis of bennefits received."
The
only question necessary to be considered is, as raised in
points 1 and 2, supra, to wit, is the land in dispute in the
city of Butte, and under its dominion and control? That is
did the...
