I dissent. Material facts which are the basis of my opinion were not disclosed in the prevailing opinion, and so a statement of facts is necessary: On October 16, 1869, the predecessors in interest of plaintiffs' lands filed their claims thereto with the County judge under the Townsite Laws, and later made proof thereof and were adjudicated to be the owners and possessors of such lands, and received deeds through which plaintiffs derived their respective interests in such lands. The North Ogden Townsite had been previously entered in the Land Office by the County Judge of Weber County, it being an unincorporated town, under the Federal Townsite Act of 1867, and patent was issued to such judge on August 2, 1872, for the several use and benefit of the occupants thereof. A plat and survey of the North Ogden Townsite was made and filed in the Weber County Recorder's Office on April 27, 1870, in which the lands involved in this action were platted into square blocks, which were divided into lots. Between the blocks and on all sides of each of them was platted a street four rods in width. In all of the claims, adjudications, deeds and transfers in plaintiffs' chains of title the lands therein are described either as a stated lot or block, or a number of stated lots or blocks, or a described portion of a stated lot or block, in Plat "A", North Ogden Survey. Thus, none of the plaintiffs have ever received any deed or conveyance which expressly conveys any part of the lands which were platted as streets. Some of the streets as shown in the plat were opened and being used as such by the public at the time the Townsite was entered by the County Judge, but many of them were not.
Plaintiffs contend that at the time the County Judge entered this townsite their predecessors in interest not only occupied the lands which were platted as lots and blocks and which they claimed and were adjudicated to be the rightful owners and possessors of at that time, but that they also occupied the lands which were adjacent thereto which were platted as streets, which the city now proposes *Page 319 to open as such and which plaintiffs now occupy. At the trial it was stipulated that, except as to a portion of one street, none of the lands platted as streets, which the city now proposes to open as such, and which is now in the possesion of the plaintiffs, has ever been used by the public as a roadway or for traveling purposes, and no evidence was introduced which showed that the portion of the street excepted from the stipulation was ever so used. Plaintiffs produced witnesses, among whom were some of the oldest residents of North Ogden who are still living, one of whom was eighty years old, who testified that they had been born, raised and lived in that neighborhood all of their lives; had known this property since they were old enough to know any property; that none of the lands which the city now proposes to open for use as streets had ever been used by the public as such but that the lands which plaintiffs now occupy had been fenced in, used and occupied by plaintiffs and their predecessors during all of the time they have known the property.
Thus, at the time of the entry of this townsite none of the lands now occupied by the plaintiffs was being used by the public for roadways or traveling purposes. Plaintiffs' predecessors occupied the lands adjacent to the lands now occupied by plaintiffs and which were platted as streets, and plaintiffs and their predecessors in interest have occupied such lands to the extent that plaintiffs now occupy them as long as a man eighty years old can remember. The foregoing facts require the conclusion that plaintiffs' predecessors in interest were occupying the portions of the lands which were platted as streets and which they now occupy, at the time the Townsite was entered by the County Judge for the benefit of the occupants thereof. Any opposing conclusion would be unreasonable.
The defendant, North Ogden City, now proposed to open up for public use as streets all of the lands which were originally platted as such, and to take from plaintiffs such lands which they have occupied for more than seventy-five years, without condemning the same and without compensation. *Page 320 Plaintiffs bring this action to enjoin the city from interfering with their use of such lands. The city, to succeed, must establish its right to so take such lands under the Federal Townsite Act of 1867, or show that plaintiffs or the predecessors have dedicated such lands for that purpose to the public.
The Townsite Act approved March, 1867, 14 Stat. 541, known as section 2387, Rev. St., 43 U.S.C.A. § 718, as it applies to this case, provides as follows:
"Whenever any portion of the public lands of the United States have been or shall be settled upon and occupied as a town site, * * * it shall be lawful, * * * for the judge of the county court for the county in which such town [is] situated, to enter at the proper land office, * * * the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests; the execution of which trust * * * to be conducted under such rules and regulations as may be prescribed by the legislative authority of the State or Territory in which the same may be situated: * * *"
The territorial legislature in 1869 adopted the Territorial Townsite Act, C.L. Utah 1876, § 1166 et seq., which provided for the publication of notice and the filing of a statement of claim within six months thereafter and provided further that:
"All persons failing to make and deliver such statement within the time limited in this section shall be forever barred the right of claiming or recovering such land, or any interest or estate therein, or in any part, parcel or share thereof, in any court of law or equity."
Section 1175, C.L.U. 1876, provides that if there is unclaimed lands after the expiration of the time for filing claims, the probate judge (in case of an unincorporated town)
"shall cause the same to be surveyed and laid out into suitable blocks and lots, * * * and shall cause all necessary streets, roads, lanes and alleys to be laid out through the same, * * *."
There are many cases which have interpretated this Federal statute, including some from the Supreme Court of *Page 321 the United States, in cases very similar to this one, and they have held without exception that at the time of the entry of the land of the townsite the occupants thereof have a vested right to the use of the streets and alleys then existing and being used, and that each of such occupants at that time becomes to the extent of the lands which he then occupied the beneficiary of the trust created by the act and was then vested with the equitable ownership of the land which he then occupied, and that while the execution of the trust was subject to the rules and regulations of the territorial Legislature, neither by such rules nor by any act of the trustee could the beneficiary be divested of his rights which accrued to him under the act of Congress at the time the entry of the townsite was made. Such cases further hold that the filing and recording of a map or plat of the townsite either in accordance with the territorial regulations or otherwise, which showed no street to exist where one existed and was then being used by the occupants at the time of the entry, or which showed a street or alley to exist over lands or a part thereof which was then occupied by a settler, could not divest the settlers of the right to use the street or alley which existed and were being used at the time of the entry, nor divest the occupant of his vested equitable ownership of all of the lands then occupied by him, and any attempt to do so would be null and void. Bingham v. Walla Walla, 3 Wn. T. 68, 13 P. 408;Parchen v. Ashby, 5 Mont. 68, 1 P. 204; same case Ashby v.Hall, 119 U.S. 526, 7 S.Ct. 308, 30 L.Ed. 469; City of Helena v. Albertose, 8 Mont. 499, 20 P. 817; Scully v. Squier,13 Idaho 417, 90 P. 573, 30 L.R.A., N.S., 183; Id., 215 U.S. 144,30 S.Ct. 51, 54 L.Ed. 131; City of Globe v. Slack, 11 Ariz. 408,95 P. 126; City of Pueblo v. Budd, 19 Colo. 579, 36 P. 599.
In the cases of City of Helena v. Albertose, supra; Cityof Globe v. Slack, supra; City of Pueblo v. Budd, supra; and Treadway v. Wilder, 8 Nev. 91, the local statutes required the occupants to file their claims to such lots within a specified time and provided that a failure to do so would forever bar such claims, and also provided the manner of *Page 322 disposal of lands not claimed. The statutes in Colorado and Nevada are exactly the same in meaning as our statute above quoted, but the courts held that neither the filing of the plat nor, in the Nevada case, the giving of a deed to a person not occupying the same, could deprive the occupant of his right of possession in the property and that such right could be shown to defeat the claim of another or the public, although the court could not quiet title to the property in the occupant or his successors. In the case of City of Globe v. Slack, supra, the occupant at the time of the entry filed claim to only the part platted as a lot, but did not make any claim to the adjacent land which he occupied which was platted as a street. Later the original occupant sold his land to the defendant but by his deed only conveyed the lot and not the part platted as a street; however, his successor occupied the part platted as a street the same as the original occupant. The court held that the defendant had sufficient title to defeat the claim of the city.
Nor did the city or town of North Ogden obtain the right to take for public streets the land in question without compensation under the provisions of section 1175, C.L.U. 1876. This section provides in substance that the probate judge shall cause the unclaimed lands to be surveyed and laid out into suitable lots and blocks and shall cause all necessary streets to be laid out. Obviously the intent of that statute was only to authorize the laying out of streets adjacent to the unclaimed lots and blocks which were necessary for the use thereof, and not to authorize the laying out of streets necessary for the use of the lots and blocks which had already been claimed. In any event, if the intent of that section was to take from an occupant land which he occupied at the time the townsite was entered in the land office, and which was still occupied by him or his successors in interest, it would be null and void as an attempt to deprive him of his vested interests under the act of Congress of the equitable title to the lands which he occupied at the *Page 323 time of the entry. See cases above cited and especially City ofPueblo v. Budd, supra.
I therefore conclude that the plaintiffs in this action obtained the equitable ownership of all the land which they occupied at the time of the entry in the Land Office of the townsite of North Ogden by the County Judge, and that under the act of Congress neither the City of North Ogden nor the public ever obtained any right, title or interest therein through the plat or survey which was filed, and therefore unless the plaintiffs have dedicated that land to the public the plaintiffs must succeed in this action.
Neither the plaintiffs nor their predecessors in interest have dedicated these lands which are platted as streets to the public as such. Such a dedication can only be done by some act of the owner with the intention that it will have that effect or by estoppel. The filing of this plat in the recorder's office by the public officials, not being an act of the owner, does not have that efect. If it were otherwise, then the public officials could take anyone's property merely by filing a plat showing such property to be platted as property for a public use. All of the cases above cited hold that such a plat does not constitute a dedication of the property by the owner to a public use. The fact that the predecessors of plaintiffs merely made claim to the lands which were shown on the plat as lots and blocks does not constitute such a dedication of the lands platted as streets,City of Globe v. Slack, supra; nor does the acceptance of a deed from the County Judge of only the lands so platted have that effect, Bingham v. Walla Walla, supra; nor does the conveyance of the land to his successor without describing the land covered by the street as platted constitute a dedication,City of Globe v. Slack, supra. The failure of the occupant to file any claim to the land covered by the street as platted does not constitute a dedication thereof to that use. City of Helena v. Albertose, supra, and City of Pueblo v. Budd, supra. This, I think, is the proper rule. All of these cases hold that the occupant asserts ownership in the land platted as streets by occupying such lands at the time *Page 324 of the entry in the land office, and the continuance of such occupancy by him and his successors in interest show that there is no dedication to a public use.
The defendants and interveners rely on the case of TooeleCity v. Elkington, 100 Utah 485, 116 P.2d 406. In that case no mention is made of who was in possession of the lands in question at the time of the entry in the land office of the townsite, and no discussion of who was entitled to the land at that time is made. But it is assumed that the fact that the predecessors in interest of the defendants conveyed only with reference to the lots and blocks as platted and did not expressly convey the parts in question which was platted as an alley; that such conveyance constituted a dedication of the alley as platted to the public. No discussion of what is necessary to constitute a dedication is made except that the case of Wallace v. Cable, 87 Kan. 835,127 P. 5, 6, 42 L.R.A., N.S., 578, is referred to. But that case is certainly no authority for the assumed proposition, as the dedication therein relied upon was a part of the deed which expressly provided:
"* * * meaning hereby to convey to the party of the second part block 73 in the city of Wyandotte, according to the plan of said city published by John H. Miller, made March 18, 1857, with half of the adjoining street, and it is hereby stipulated that these streets shall not be closed up except by mutual consent."
The great weight of authority is contrary to the rule assumed in the Tooele case. See note to Wallace v. Cable, supra,87 Kan. 835, 127 P. 5, 42 L.R.A., N.S., 587.
There is no contention that there was any dedication by estoppel and no facts on which such estoppel could be based. I therefore think the decision of the trial court should be reversed. *Page 325