Foot v. Town of Watonga

• Decision Date: 18 February 1913
• Docket Number: Case Number: 2325
• Citation: 1913 OK 139,37 Okla. 43,130 P. 597
• Parties: FOOT et al. v. TOWN OF WATONGA.
• Court: Oklahoma Supreme Court

1913 OK 139

130 P. 597

37 Okla. 43

FOOT et al. v. TOWN OF WATONGA.

Case Number: 2325

Supreme Court of Oklahoma

Decided: February 18, 1913

Syllabus

¶0 1. PUBLIC LANDS--Town Sites--Statutory Provisions. The devolution of title to lots on town sites in the Cheyenne and Arapaho country reserved for county seat purposes by the Secretary of the Interior is governed by sections 2387 and 2388, Revised Statutes of the United States (U. S. Comp. St. 1901, pp. 1457, 1458), and the town site laws of the state of Kansas as modified by Act Cong. March 3, 1891, c. 543, 26 St. at L. 1026.

2. CONSTITUTIONAL LAW--Statutes--Construction--Practical Construction by Officers. The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been long acquiesced in, is a just medium for its judicial interpretation.

3. PUBLIC LANDS--Reservation for County Seat. The authority to reserve not to exceed one-half section of land in each county in the Cheyenne and Arapaho country for county seat purposes conferred upon the Secretary of the Interior by section 17 of the Act of March 3, 1891 (chapter 543, 26 St. at L. 1026), supra, embraced the power to set aside for public purposes such lots or parcels of ground situated upon such townsite as, in the judgment of the Secretary, would be necessary for the municipal needs and conveniences of a county seat town.

4. LIMITATION OF ACTIONS--Against Whom Available--Municipal Corporations. The generally accepted doctrine is that the maxim, "Nullum tempus occurrit regi," is not restricted in its application to sovereign states or governments, but that its application extends to and includes public rights of all kinds, and that it applies to municipal corporations as trustees of the rights of the public, and protects from invasion and encroachment the property of the municipality which is held for and devoted to public use, no matter how lax the municipal authorities may have been in asserting the rights of the public.

5. ESTOPPEL--Equitable Estoppel--Persons Estopped--Municipality. Where a municipality holds title to a town lot for the use of the general public, an estoppel in pais, based on a failure of its officers to do their duty, cannot ordinarily be asserted against it to defeat the rights of the public in the property.

Error from District Court, Blaine County; James R. Tolbert, Judge.

Suit by H. A. Foote against W. B. Piper, and the town of Watonga, Blaine County, was made a party defendant, and filed an answer and cross-petition. From a judgment in favor of the town, the plaintiff and original defendant bring error. Affirmed.

BREWER, C.

¶1 This suit involves the title to lot 1, block 48, in the town of Watonga, Blaine County, Okla.

¶2 On March 1, 1906, H. A. Foote filed his petition against W. B. Piper in the district court of Blaine county, asserting ownership to the lot in question, and asking that a quitclaim deed to the property be declared a mortgage, tendering payment, and for cancellation. Later the town of Watonga came into the case with leave of court as a party defendant, and filed an answer and cross-petition asserting title, both legal and equitable, to the lot in question as against both Foote and Piper, each of whom filed answer to the cross-petition, and the case was tried on the issues raised thereon; the controversy between Foote and Piper not being developed. Each of these original parties appear to have made common their cause against the town of Watonga. A jury was waived, and the case was submitted to the court upon the evidence, and a finding made and judgment entered in favor of the town, from which both Foote and Piper join in an appeal as plaintiffs in error. The lot in controversy is a part of the government town site of Watonga, which town site was reserved for county seat purposes by the Secretary of the Interior, in pursuance of the Act of Congress of March 3, 1891, which, among other things, provided for the opening to settlement of the Cheyenne and Arapaho country. It seems that the Secretary of the Interior, in carrying out the duty cast upon him by the foregoing act of Congress, caused the land set apart for county seat purposes to be surveyed and platted into streets, alleys, and lots; that on this plat various lots or parcels of ground were shown to be reserved for public uses by marking upon such lots as they appeared upon the plat the purpose for which the reservations were intended; thus the reservation for high school building was marked on the plat "H. S. B." The lot intended for a post office was marked, "U. S. P." Other tracts, "For Parks, " etc. The lot in controversy was marked "Town Bldg." This plat, after being approved by the Governor of the territory, was attached to the townsite application for entry, and filed with the Register of the General Land Office, who caused a copy thereof to be filed in the office of the register of deeds of the county of which the town site became the county seat.

¶3 The contention of plaintiff in error is (1) that the attempted reservation is absolutely void and of no force and effect, for the reason that the patent issued by the United States conveyed title to the entire town site to the probate judge, "in trust for the several use and benefit of the occupants" thereof, and that neither the Secretary of the Interior nor the townsite commissioners had any authority to set aside any part thereof for the...