Young v. Tiner

• Decision Date: 17 December 1894
• Citation: 4 Idaho 269,38 P. 697
• Parties: YOUNG v. TINER
• Court: Idaho Supreme Court

38 P. 697

4 Idaho 269

YOUNG v. TINER

Supreme Court of Idaho

December 17, 1894

APPEAL-UNDERTAKING ON APPEAL.-An undertaking on appeal under section 4809 of the Revised Statutes of 1887, intended to apply to more than one appeal, must designate or specify each appeal and will not be construed to apply to appeals not specified therein.

STATEMENT ON MOTION FOR NEW TRIAL-FOR WHAT PURPOSE MAY BE USED.-A statement used on motion for a new trial and made part of the judgment-roll may be used on appeal from the judgment if not taken within sixty days after the rendition thereof for the purpose of determining whether the trial court made any errors in law during the progress of the trial.

EXCEPTION TO VERDICT-APPEAL FROM JUDGMENT.-An exception to the verdict on the ground of the insufficiency of the evidence to justify it cannot be reviewed on an appeal from the judgment unless the appeal is taken within sixty days after the rendition of the judgment.

SAME.-An exception that the "verdict is against law as applied to the facts proven in the case" cannot be reviewed on an appeal from the judgment taken more than sixty days after the rendition of the judgment.

NEW TRIAL-VERDICT AGAINST LAW-WHAT THE STATUTE INTENDS.-The statute, in authorizing a new trial on the ground that the "verdict is against law," does not intend to include in that ground all or any of the other separate grounds enumerated in section 4439 of the Revised Statutes of 1887.

TOWNSITE OCCUPANT-ABANDONMENT-TITLE.-From the facts shown in the record, held, that if appellant ever had any right to the land in dispute, as a townsite occupant, he abandoned it long before bringing this action, and at the time of bringing it had no title to enable him to maintain the action.

SAME.-A townsite occupant must comply with the law in regard to improvements, occupancy, etc., and make application for deed in accordance with the law, and pay the price for such land before he is entitled to a deed, and until he performs those acts and pays such price he may lose the land claimed by abandonment.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Judgment affirmed, with costs in favor of respondent.

L Vineyard, D. D. Williams, and W. E. Borah, for Appellant.

The testimony for both plaintiff and defendant shows that plaintiff was a townsite occupant at the time the land was entered as a townsite in the United States land office, by Mayor Prickett on January 13, 1868. If plaintiff, at the time of the entry, was a townsite occupant, then he had perfect title to the land, not only as a townsite proprietor, but also by virtue of his prior possession. The first question in the case is, Did the court err in submitting to the jury the question, was the land in dispute outside of the patented limits of Boise City? After the defendant introduced in evidence, as one of his muniments of title, the deed from the mayor, he was estopped from denying the recitals therein said deed containing among other things, the following "All the following described lot, piece or parcel of land, situate within and upon, and being a portion of the townsite of said Boise City, in the county of Ada, and State of Idaho." Particular and definite recitals in deed are conclusive evidence of the material facts stated. (7 Am. & Eng. Ency. of Law, 7, and cases cited in note.) The most important question in the case is, Has the plaintiff such title to the land in question as would be sufficient for him to maintain ejectment, or, an action to recover the possession? The plaintiff had title, either legal or equitable, coupled with a right to possession thereunder. (Lechler v. Chapin, 12 Nev. 65.) A townsite occupant upon the public unsurveyed lands has a possessory title which is sufficient to maintain ejectment whenever his possession is interfered with by a stranger showing no better title. The court held and instructed the jury that while he could maintain this action if he had nothing but a bare possessory title, that after this title had ripened into an absolute one he could not. The title of a townsite occupant was not weakened by the entry of the townsite for patent, for this act withdraws the land from the public domain and converts the holding and possession thereof into one of private ownership under a survey approved by the government, and the authorities all hold that, under such entry, the occupant has a fixed, vested, and absolute right to the ground he occupies at the date of such entry, and that it is absolute title under the act of Congress. (Newhouse v. Simoni, 3 Wash. 648, 29 P. 263; Rathbone v. Sterling, 25 Kan. 444; Winfield Town Co. v. Maris, 11 Kan. 121; Cerf v. Pfleging, 94 Cal. 131, 29 P. 417; Stringfellow v. Cain, 99 U.S. 617; Ashby v. Hall, 119 U.S. 526, 7 S.Ct. 308; Bingham v. Walla Walla, 3 Wash. Ter. 68, 13 P. 411; Pueblo v. Budd, 19 Colo. 579, 36 P. 599; Brooke v. Jordan, 14 Mont. 375, 36 P. 450; Gitard v. Brown, 16 How. 495; Glasgow v. Horitz, 1 Black, 600; Mallard v. Anderson, 36 La. Ann. 834; Burbank v. Ellis, 7 Neb. 156.) The right to a patent once vested is treated by the government, when dealing with the public land, as equivalent to a patent. (Stark v. Star, 6 Wall. 402.) The execution and delivery of the patent, after the right to it is complete, are the mere ministerial acts of the officer charged with that duty. (Barney v. Dolph, 97 U.S. 652; Morrow v. Whitney, 95 U.S. 554.) It is plain that the government having parted with the title to the land by the creation of the trust in the mayor for the several use and benefit of the occupants of the townsites, without any limitations or duties fastened upon the trustee with reference to the land so held, is only a passive trust; where the trustee simply holds the naked legal title in trust for the benefit of the cestui que trust, then he cannot dispossess the latter. The law executes the trust. (Ingham v. Burnell, 31 Kan. 333, 2 P. 801; 2 Washburn on Real Property, 405, et seq., 487; Saunders v. Edwards, 2 Jones Eq. (N. C.) 134; Sherman v. Dodge, 28 Vt. 26; Martindale on Conveyances, 109, 110; Richardson v. Stodder, 100 Mass. 529; Upham v. Varney, 15 N.H. 465; Witham v. Boomer, 63 Ill. 344.) "The doctrine of abandonment only applies where there has been a mere naked possession without title. The right of the occupant originating in mere possession may, as a matter of course, be lost by abandonment. Where there is title to preserve it, there need be no continuance of possession and the abandonment of the latter cannot affect the rights held by virtue of the former." (Ferris v. Coover, 10 Cal. 589 (631); Webber v. Petty, 2 Colo. App. 63, 29 P. 1016; Leonard v. Flynn, 89 Cal. 543, 26 P. 1099.)

J. Brumback, S. H. Hays, and H. Z. Johnson, for Respondent.

Plaintiff was not a townsite occupant under the townsite act at the time of the entry of the townsite, to wit, November 23, 1867: 1. Because he did not have the premises inclosed at that time; 2. Because the occupancy was not of the kind required by the townsite act, being for a racetrack only; 3. Because whatever occupancy Young had was under the license and permission of O'Farrell and Arnold. Hence, under no circumstances whatever could he recover. (Singer Mfg. Co. v. Tillman (Ariz.), 21 P. 818; Greiner v. Fulton, 46 Kan. 405, 26 P. 705; Pascoe v. Green, 18 Colo. 326, 32 P. 824.) It conclusively appears that plaintiff abandoned the premises. Under the act of January 6, 1871 (Local Laws, p. 30), occupants were given sixty days in which to make proof of occupancy before the mayor. Plaintiff testified that he made an application for a deed to the premises in controversy. The application shows on its face that it does not include the premises in dispute. It was introduced in evidence by plaintiff himself and cannot be impeached by him. (Wilson v. Cleaveland, 30 Cal. 192; Thompson v. Holbrook, 1 Idaho 609.) The racetrack covered only a portion of the premises claimed by plaintiff. The deed from Huston, mayor, to Tiner, conveyed the title to all the premises in dispute admitting that the premises are within the patent limits. (Cofield v. McClellan, 16 Wall. 331; Chever v. Horner, 11 Colo. 68, 7 Am. St. Rep. 217, 17 P. 495; Ming v. Foote, 9 Mont. 201, 23 P. 515.) If Young had any title it was an equitable title and not a legal title. (Jones v. Eureka Imp. Co., 53 Ark. 191, 13 S.W. 1094; City of Helena v. Albertose, 8 Mont. 499, 20 P. 817; Hussey v. Smith, 99 U.S. 20; Eversdon v. Mayhew, 65 Cal. 163, 3 P. 641; Greathouse v. Heed, 1 Idaho 482.) Young had therefore no title on which he could recover in this suit. (Emeric v. Penniman, 26 Cal. 120; O'Connell v. Dougherty, 32 Cal. 458; Lawrence v. Webster, 44 Cal. 385; Buhne v. Chism, 48 Cal. 467; Lynch v. Brigham, 49 Cal. 137; Ming v. Foote, 9 Mont. 201, 23 P. 515; Clark v. Lockwood, 21 Cal. 220; Estrade v. Murphy, 19 Cal. 248.) "The trustee having the legal interest is the only proper person to bring actions at law and to do other things which can be done only by one having the legal estate." (Pomeroy's Equity Jurisprudence, sec. 989.)

SULLIVAN, J. Huston, C. J., took no part in the hearing or decision of this case. Morgan, J., concurs.

OPINION

SULLIVAN, J.

The appellant (who was the plaintiff in the court below) brought this suit to recover possession of a certain tract of land containing two and forty one-hundredths acres, situated within the patented townsite of Boise City, claiming to be the owner in fee of said land, and entitled to the possession thereof. The complaint contains the usual allegation required in an action in ejectment. The defendant answered, denying specifically each allegation of the complaint, and avers that he himself is the owner in fee of said premises in the possession, and entitled to the...