ON PETITION POE REHEARING.
PER CURIAM.A petition for rehearing has been filed in this ease. We will say at the outset that no discourtesy to counsel for appellant was intended in any of the statements contained in the opinion in this case. We have the utmost confidence in counsel’s honor and ability.
Counsel states that in the commencement of this action and in its prosecution he largely relied on the ease of Boise City v. Flanagan, 6 Idaho, 149, 53 Pac. 453. The facts of that case and the case at bar are not similar or parallel. In that ease one James Stout claimed the tract in controversy. A part of it he had inclosed and improved and the remaining part was not inclosed. Both the inclosed and the uninclosed lots he claimed as one tract. On the second day of May, 1870, the United States conveyed by patent the land included in said Boise City townsite to Henry Elliot Prick*435ett, then mayor of said city, in trust for the several use and benefit of the occupants of said townsite. The mayor had the same platted into blocks, streets and alleys, and the part of the tract so claimed by Stout, which had not been inclosed by him or improved in any way or manner, lay in the street. Upon proper application by Stout to the mayor for a deed to the part so platted, a deed was issued to him by the mayor for said fractional block, as it was called. Stout thereafter, in May, 1871, sold and conveyed said fractional block to one James Dunn, in which conveyance he also described the land in controversy and platted as a street. The land so platted as a street had not been inclosed up to that date, May, 1871, and was not inclosed by said Dunn until June, 1878, and from the time that Dunn inclosed it on down to the commencement of the action the city repeatedly asserted its control and right to control over said tract as a part of the streets of said city, and repeatedly notified Dunn to remove all fences and improvements, which he promised to do.
In the ease at bar, the defendants and their grantors had been in the exclusive, actual possession of all of said lots, and had them covered with buildings and the parts not covered with buildings were inclosed by fences. They were in possessio pedis of every square foot of said lots. That being true, the city authorities, had notice of their claims, and the surveyor had notice that they were in actual occupation and possession of said lots fifty feet in length and had improvements thereon.
. In the Flanagan case, when the surveyor came to plat Boise City, he found no improvements whatever on the tract in controversy, and platted the portion claimed by Dunn as a part of the streets of said city. Said tract laid open as a part of said street until 1878 — for more than six years after Dunn had purchased the fractional block of Stout, before he fenced it, and when he was notified by the city authorities to remove his fence from said premises, he promised to remove it. That case is very different from the one at bar, for, regardless of the E. B. True survey, and regardless *436of the city authorities, which authorities never at any time claimed any portion of the lots of defendants in this case, nor notified them to remove their improvements from any part of the lots, the defendants and their grantors had steadfastly claimed the same, and the most of them had received deeds from the mayor.for said lots fifty feet in length. Their actions and conduct could not be taken as an estoppel against them; while the actions and conduct of Stout and Dunn in the Flanagan ease clearly show that if they had any rights to the land in controversy in that case, they were such as to estop them from claiming them against, the city.
In the case at bar we find no laches, waiver of rights or ratifications of survey such as would estop the defendants from claiming said lots fifty feet in length. So far as the record shows, the city never has questioned the right of the defendants, in this action, in and to said lots for their full length, fifty feet.
Counsel also cites City of Walla Walla v. Moore, 2 Pac. 187, as a case supporting his contention. The court held therein that a party may by his acts so recognize boundaries as marked out in a recorded plat of a city as to estop him from denying the correctness of such boundaries. The court in that opinion says: “The only title claimed by the defendants was derived from D. S. Baker, and if the said D. S. Baker was not in a situation to assert his title to the land as against the public at the time he conveyed the land, it will follow, under the circumstances of this ease, that defendants will occupy the same situation.”
It would seem from that statement in the opinion, that the grantor of the defendants in that case, at the time he sold said lots to them, was not in a position to assert Ms title to said land as against the city authorities. But not so in the case at bar. The grantors of the defendants in the case at bar were in a position or situation to assert their title to said lots as against the city of Lewiston, for the reason that they had buildings or inclosures covering said entire lots and were claiming them at the time the entry was made by the mayor. There are other facts stated in the opinion in that case which show that the defendants recognized the boundaries of said *437streets and lots, and the court held as follows: “These acts and some others of a similar nature appearing in the record, in our opinion estop him as above stated.” That is not a case in point.
Counsel also cites Laughlin v. City of Denver, 24 Colo. 255, 50 Pac. 917. In that case it appears from the averments of the complaint that Laughlin entered upon the land in dispute, July 13,1865, under a deed from Andrew and Elizabeth Sagendorf, and had held exclusive, continued and uninterrupted possession of said land until February, 1893, when the defendant city, without leave and over the protest of plaintiff, forcibly entered upon said land, and removed certain houses and fences and cut down and removed certain trees, ousted and ejected the plaintiff therefrom, and converted and used said land for a street. It appears that on May 29, 1865, the city surveyor filed with the clerk of said city of Denver a map of the then city of Denver, which was approved by the city council on June 22, 1865, and filed for record with the clerk and recorder of the county in which said city is located on June 29, 1865. There is shown on said map outlot or block No. 257 in what is known as the “Western Division” of the city of Denver and to the west of said outlot is marked “Jefferson Street.” The land in dispute in that case was a part of Jefferson street and so marked. On August 29, 1865, the probate judge in pursuance of the territorial statute, conveyed by deed to the defendant city the streets, lanes, avenues and alleys of the city of Denver lying within the tract of land included in said surveyor’s plat, including Jefferson street, which deed was recorded on June 8, 1867. On July 13, 1865, Laughlin bought from Sagendórf and wife, the occupants thereof, a tract of land inclosed by a certain fence, which included the land described in the complaint upon which there stood at the time a loghouse, and also the. land described in said surveyor’s map as outlot or block No. 257, and received from them a quitclaim deed, which Laughlin supposed described the whole tract, but which, in fact, conveyed only that portion designated as outlot No. 257. Laughlin entered into possession of the land so purchased and occupied and lived in the loghouse situated thereon, and in 1866 planted trees *438and built a stable, corral, barn and outhouses, and in 1871 built a frame house on the land in dispute, plowed and used the balance of the land for gardening and grazing purposes; occupied and used, cultivated and possessed said land uninterruptedly from July 13, 1865, to February 10, 1893, when the city, under claim of title as aforesaid, entered upon said land and cut down and removed the trees, houses and other improvements therefrom, and took possession of the land in controversy as a portion of Jefferson street, which, ut> to the latter date, had not been opened or used by the defendant.
At the outset the court says in that case that on the foregoing statement of facts the question determinative of the right of the parties is whether the execution of the deed of August 29, 1865, by the probate judge was a valid exercise of his authority as trustee, and vested in the city the legal title and the right to the possession of the land in controversy, and if so, whether such title and right has been lost by nonuser. In that case the plaintiff contended that the deed was unauthorized so far as the land in dispute was concerned, because no street was laid out over the same at the time of its execution, and the court says: “This objection would merit very serious consideration if the plaintiff was in a position to urge it, since the streets which the people or legal authorities have a right to have conveyed are such only as are actually used or laid out at the time of the entry of the townsite. ’ ’
And further says: “A trustee is not authorized to designate any of the site in the possession of an actual occupant as a part of a street.”
This last statement is what we hold in' this case; that the trustee-mayor had no authority to designate any part of the townsite that was in the possession of an actual occupant as a part of a street. The court then proceeds and says: “But in view of the relation that the plaintiff holds to the property, in our opinion he is precluded from assailing the validity of this deed upon this ground. He was not an occupant of the land at the time the townsite was entered and the title thereto vested in the trustee, nor has he ever succeeded to the right of the then occupants.”
While, in the case at bar, we hold from the evidence that the *439respondents did derive their rights from the fact' of being on the land at the time it was entered by the mayor, or derived their rights from their predecessors who were on the lots at the time. However, if in fact the rule laid down in that ease is contrary to the rule that we have laid down in this case, we are not inclined to follow it. In that case the court held that Laughlin had no right by adverse possession, as the deed under which he claimed did not purport to convey the land in controversy and therefore did not constitute color of title. In the case at bar, the respondents and their predecessors in interest have been in the actual physical possession of the said lots their entire length, fifty feet, for thirty-five or forty years, and the city has not at any time molested, interfered with or disputed their right and ownership therein.
Laches cannot be imputed to the respondents because they have not brought an action against the city to determine their rights, as they were in possession and in absolute control of said lots. The respondents and their predecessors in interest having been in possession of the lots involved in this ease, with improvements covering the entire lots, claiming them as their own and exercising acts of ownership over them, the principle of estoppel cannot be invoked against them because they have not been more aggressive and brought suits against the city for the purpose of establishing their rights thereto.
A rehearing is denied.