Scully v. Squier

• Decision Date: 18 May 1907
• Citation: 90 P. 573,13 Idaho 417
• Parties: MATTHEW SCULLY, Appellant, v. LOUISE SQUIER et al., Respondents
• Court: Idaho Supreme Court

90 P. 573

13 Idaho 417

MATTHEW SCULLY, Appellant, v. LOUISE SQUIER et al., Respondents

Supreme Court of Idaho

May 18, 1907

ENCROACHMENTS ON STREET-INJUNCTION-PUBLIC NUISANCE-DAMAGES TO PUBLIC AND PRIVATE RIGHTS-ABATEMENT OF NUISANCE-TOWNSITE ON PUBLIC DOMAIN-ENTRY OF-DUTY OF MAYOR-PLATTING TOWNSITE-RIGHTS OF OCCUPANTS-RIGHTS OF GENERAL PUBLIC IN UNOCCUPIED LOTS AND STREETS-DUTIES AND POWERS OF MAYOR AND SURVEYOR-TRUST IMPOSED.

1. The city of Lewiston was located on the public domain of the United States, and under the provisions of section 2387 of the Revised Statutes of the United States was entered by the mayor in trust for the several use and benefit of the occupants thereof according to their respective interests. Said section of the statute provides that the execution of such trust as to the disposal of the lots in such town and the proceeds of the sale thereof must be conducted under such regulations as may be prescribed by the legislative authority of the territory.

2. In compliance with the provisions of said section, the territorial legislature passed an act entitled, "An act to provide for the survey, platting and disposal of the land in the city of Lewiston, Nez Perce county, Idaho, pursuant to the United States Statutes made and provided," which act was approved January 8, 1873 (Sess. Laws 1872-73, p. 16).

3. Under the provisions of said act, a surveyor was employed to survey and plat the lands in said town, and was directed by said act to so arrange and adjust the plat as to conform to the conditions of the improvements and occupation of the lots, and the mayor was thereafter directed to make and deliver to the bona fide occupants of said lands good and sufficient deeds of conveyance in fee simple and the title to the lots claimed by them according to their respective interests under the provisions of said law.

4. The said plat cut off from the northerly ends of the lots in block 24 about four feet and included the part cut off in D street. At the time said plat was made said lots, for their entire length, were covered by improvements and possessed and occupied.

5. Said surveyor had no authority or right to cut off a portion of said lots and include it in a street.

6. The rules and regulations made by the legislature did not enlarge or diminish the rights of the occupants of the lots, as the rights of the occupants accrued at the time of the entry of the townsite and could not be defeated by the surveyor.

7. The interests which the occupants possessed previous to the entry, either in the land occupied by them or in the rights of way over adjoining streets and alleys, were secured by such entry.

8. Under the provisions of said section 2387, Revised Statutes the execution of the trust imposed on the mayor as to the disposal of the lots was conducted under the regulations established by the legislature. The word "disposal" as used in that section must be construed to mean "distribution" when applied to the lots that were actually occupied and possessed, for under said section such lots were already disposed of; that is, they became the property of the occupants, and the occupant of a town lot at the time of the entry of a townsite is its real owner.

9. The trust imposed on the mayor of an incorporated town is for the benefit of the inhabitants, first as individuals, and after that, collectively, as a community, and the title to the occupied lots becomes vested in the trustee for the benefit of the occupants severally at the time such entry is made and neither the surveyor nor the mayor can deprive them of that title.

10. The surveyor cannot make a paper street in such town and deprive the actual occupants of vested rights, as the only authority the surveyor had was to plat the town in conformity to the use and occupancy of the lots and blocks.

11. The surveyor had no authority to establish streets through and over buildings, nor to cut off any portion or parts of buildings for street purposes.

12. The mayor or surveyor had no authority to change the beneficiaries under such trust.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action for mandatory injunction and abatement of a public nuisance alleged to damage the public as well as private rights. Judgment for defendants. Affirmed.

Judgment affirmed, with costs in favor of the respondents.

Ben. F Tweedy, for Appellant.

None of the respondents can question the boundaries of the paper street without establishing a legal or equitable title, owned by him or her at the time of the encroachment of the buildings upon the boundaries of such a street, because such street as to him or her in the absence of such proof becomes the actual street to the full extent of its boundaries. (Laughlin v. City of Denver, 24 Colo. 255, 50 P. 917; Boise City v. Flanagan, 6 Idaho 149, 53 P. 453.)

No equitable title vests in an occupant at any other time than on the day of filing the application in the land office of the United States. (Lockwitz v. Larson, 16 Utah 275, 52 P. 279; Hussey v. Smith, 99 U.S. 20, 25 L.Ed. 314; Sturr v. Beck, 133 U.S. 541, 33 L.Ed. 761, 10 S.Ct. 350; Custner v. Gunther, 6 Minn. 119 (Gil. 63); Leech v. Rauch, 3 Minn. 448 (Gil. 332); Cook v. Rice, 2 Colo. 131; Cofield v. McClelland, 16 Wall. 331, 21 L.Ed. 339.)

The official survey and platting of an existing street whereby the lines dividing the existing street and the property of occupants is ascertained is not the taking of private property within the meaning of the constitution. (Watkins v. Havighorst, 13 Okla. 128, 74 P. 318.)

The legislature can enact a law for the ascertainment of the boundaries of existing streets and for the establishment of their extent and the space occupied by them, and such law is valid, and there is also vested private rights in the streets. (Ashby v. Hall, 119 U.S. 526, 30 L.Ed. 469, 7 S.Ct. 308; Thompson v. Holbrook, 1 Idaho 609; Territory v. Nowland, 3 Dak. 349, 20 N.W. 430; 26 Am. & Eng. Ency. of Law, 2d ed., 310.)

The ascertainment of the boundaries and the extent of occupancies of portions of the public domain where there are streets includes the ascertainment of the boundaries of existing streets, because an existing street cannot be closed by an official survey and plat. (Parcher v. Ashby, 5 Mont. 68, 1 P. 204.)

The appellant has the vested right to have the street kept open to the extent of its lines, especially at the time of filing the application to enter the said townsite. (Parcher v. Ashby, 5 Mont. 68, 1 P. 204; McLean v. Llewellyn, 2 Cal.App. 346, 83 P. 1083; Dooly Blk. v. Rapid Transit Co., 9 Utah 31, 24 L. R. A. 610, 33 P. 229.)

A lapse of twenty to fifty years before the challenging of the correctness of an official act makes the presumption of the correctness of the official act very strong. (Belcher v. Belcher, 21 Ky. Law Rep. 1460, 55 S.W. 693; Brosnaham v. Turner, 16 La. Ann. 433; Austin v. Austin, 50 Me. 74, 79 Am. Dec. 597; McFate's Appeal, 105 Pa. 323; Delk v. Punchard, 64 Tex. 360; Holmes v. Cleveland etc. Co., 93 F. 100.)

In not challenging the correctness of the official survey and platting promptly before private rights vested in the D street according to the official survey and permitting the loss of evidence, the respondents are guilty of laches, and, therefore, cannot now be heard to say that the official platting and survey conflict with their boundaries. (Abraham v. Ordway, 158 U.S. 416, 39 L.Ed. 1036, 15 S.Ct. 894; Willard v. Wood, 164 U.S. 502, 41 L.Ed. 531, 17 S.Ct. 176; Penn Mut. L. Ins. Co. v. Austin, 168 U.S. 685, 42 L.Ed. 626, 18 S.Ct. 223; Gilliher v. Cadwell, 145 U.S. 368, 371, 36 L.Ed. 738, 12 S.Ct. 873; Cook v. Barret, 155 Mass. 413, 29 N.E. 625; Lutgen v. Lutgen, 64 N.J. Eq. 781, 53 A. 625.)

The only power vested in the mayor-trustee was to execute and deliver deeds according to the survey and platting; he could not convey any of the surveyed streets which had been existing, and the only remedy which an occupant had against an incorrect survey and platting of a street was an action in court, joining all parties in interest to compel a correction of the survey and platting. Taylor v. Brown, 5 Dak. 335, 40 N.W. 525, establishes that deeds executed in violation of a positive prohibition of law are void.

Occupancy and possession of streets on a government townsite, which streets have been surveyed and platted, and which occupancy is not coupled with the legal or equitable title to the portion of the street occupied, gives such occupant no right to the portion of the street occupied, however long such occupancy and possession may continue. It is a public nuisance, and can never bar the action of a private individual or of the city to abate it, but is always unlawful. (McLean v. Llewellyn Iron Works, 2 Cal.App. 346, 83 P. 1083; Laughlin v. City of Denver, 24 Colo. 255, 50 P. 917; Hall v. Breyfogle, 162 Ind. 494, 70 N.E. 883; 1 Am. & Eng. Ency. of Law, 2d ed., 880-882, and notes; Bohne v. Blankenship, 25 Ky. Law Rep. 1645, 77 S.W. 919; Village of Lee v. Harris, 206 Ill. 428, 99 Am. St. Rep. 176, 69 N.E. 230; Atlantic City v. Snee, 68 N.J.L. 39, 52 A. 372; City of Lewiston v. Booth, 3 Idaho 692, 34 P. 809; Oakland v. Oakland etc. Co., 118 Cal. 160, 50 P. 277; Sheen v. Stothart, 29 La. Ann. 630; Hoboken Land etc. Co. v. Hoboken, 36 N.J.L. 540; St. Vincent Asylum v. Troy, 76 N.Y. 108, 32 Am. Rep. 286; Kopf v. Utter, 101 Pa. 27; Yates v. Warrenton, 84 Va. 337, 10 Am. St. Rep. 860, 4 S.E. 18; Indianapolis v. Kingsbury, 101 Ind. 200, 51 Am. Rep. 749.)

I. N. Smith, for Respondents.

Lewiston existed prior to the True survey. The settlers did not acquire their right under the plat, nor in virtue thereof the survey and...