Murray v. City of Butte

• Decision Date: 21 July 1887
• Citation: 7 Mont. 61
• Parties: MURRAY v. CITY OF BUTTE.
• Court: Montana Supreme Court

7 Mont. 61

MURRAY

v.CITY OF BUTTE.

Supreme Court of the Territory of Montana.

July 21, 1887.

Appeal from district court, Silver Bow county.

Ejectment. The opinion states the case.

L. J. Hamilton and Thomas L. Napton, for appellant.

W. W. Dixon, for respondent.

BACH, J.

This is an action of ejectment, brought by the plaintiff to recover the possession of certain real estate situated in Silver Bow county. The property sought to be recovered is comprised in the streets of the city of Butte. The defense interposed was that the defendant claimed, and claimed only, an easement,-a right of way over the property described in the complaint. Judgment was granted in favor of plaintiff. Upon the trial the plaintiff introduced in evidence a United States patent for mineral land, which includes the premises in question; also the application for patent, including the notice of location, dated April 16, 1875, and recorded April 22, 1875, and certain conveyances from the patentees to the plaintiff. Plaintiff then rested; thereupon the defendant disclaimed any title whatever to the fee-simple estate in the ground in controversy. One of the original locators of the mining claim was then called as a witness for the defendant; and counsel offered to prove by this witness that, “when the witness located this ground, there were public streets and highways.” It appears from the questions that these streets and highways were those the right to the possession of which is the subject of this controversy. Upon objection the offer was refused, and exception was taken to the ruling of the court. Upon the examination of this witness, and prior to this offer, the witness was asked if Broadway, Park, and Granite streets did not exist at the time of location of the mining claim. Upon objection, the question was disallowed, and exception was taken to the ruling of the court.

Were these rulings of the court erroneous? We think that they were. Section 2477, Rev. St. U. S., reads as follows: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” This law is a grant to the public of an easement for the purpose therein mentioned; and it has been decided by this court that such a law is “the highest evidence of title.” See Northern Pac. R. Co. v. Majors, 5 Mont. 111, 2 Pac. Rep. 322.

The law, then, was a grant of an easement for a public use.

In the case of City of Cincinnati v. White's Lessees, 6 Pet. 431, and 10 Curt. Dec. 179, is a leading case upon the question of dedication of land for public use. It is there held: “There is no particular form of ceremony necessary in the dedication of land to public use. All that is required is the assentof the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.” See, also, Smith v. Town of Flora, 64 III. 93.

The offer to prove, and the question asked by defendant's counsel, above referred to, were an attempt to prove the actual acceptance by the public of the easement granted, by proving actual user and occupation, prior to the location of the mining claim, and for the purposes intended within the grant. But it is claimed by counsel for respondent that the evidence sought to be introduced was immaterial, because the appellant waived its right by failing to adverse the application of respondent for a United States patent; and respondent relies upon the cases heretofore...