ON PETITION POR REHEARING.
RICE, C. J.A petition for rehearing has been filed in this case. The petitioner insists that the complaint in intervention contained no allegation that all the land in controversy was below the high-water mark, and therefore the pleadings do not support the findings, or the judgment.
“Since the fundamental question in an action of ejectment is the legal right of possession, and since plaintiff must rely upon the strength of his own title and not upon the weakness of his adversary’s, as a general rule defendant in ejectment may, so to speak, fold his arms and await the establishment of plaintiff’s title, since the burden of proof is on plaintiff.” (19 C. J. 1073.)
“In accordance with the general doctrine in actions of ejectment that the plaintiff must recover upon the strength of his own title and cannot rely upon the weakness of the defendant’s claim, it is well settled that if the case depends upon the legal title, the defendant may show an outstanding title in some third party, and need not show that he holds it himself or that his possession relates to it, unless both parties derive title from a common source, or he is estopped because of some act done by him, or because of some relation existing between him and the plaintiff, or be*676tween the plaintiff and those with whom he is privy in estate or in possession.” (9 R. C. L. 870.)
The evidence in this ease showed title to the land to be in the state of' Idaho. Appellants and the original defendants do not derive title from a common source-. Appellants attempted to derive title from the mayor-trustee of the city of Lewiston. The original defendants were in possession under a lease, but the lease was executed under the authority granted by the act of 1881. The leases, therefore, were granted by the state of Idaho through the agency of the mayor-trustee. The location of the ordinary high-water mark being an essential element in the proof of title in the state, it was in effect an issue in the case without a formal allegation in the pleadings.
The case was tried upon the theory that the ordinary high-water mark was an issue in the ease. This is shown by the fact that both appellants and the'plaintiff in intervention introduced evidence upon this point. It is further shown, beyond peradventure, that it was so understood by both sides, by the following excerpt from the record which is part of the examination of witness Thomas by the plaintiff in intervention:
“Q. Will you please turn to your records, if you have them with you, and state what the records show in regard to the high-water mark of the Snake River for the year 1909 i
“Mr. Tannahill (Attorney for Appellants): We object to that upon the ground that the extreme high-water mark is not the question in issue. It is the ordinary high-water mark. ’ ’
All parties to the controversy having tried the case upon the theory that the ordinary high-water mark of Snake River was an issue in the case, in this court they should not be permitted to abandon that theory. (Brown v. Hardin, 31 Ida. 112, 169 Pac. 293.)
Furthermore, appellants failed to show the validity of the deeds under which they claim title.
U. S. Rev. Stats., sec. 2387, reads in part as follows: “Whenever any portion of the public lands have been or *677may be settled upon and occupied as a town site, not subject to entry under the agricultural, pre-emption laws, it is lawful, in ease such town be incorporated, for the corporate authorities thereof, and if not incorporated, for the judge of the county court in which such town is situated, to enter at the proper land office, and at the minimum price, 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, as to the disposal of the lots in such town, and the proceeds thereof, to be conducted under such regulations as may be prescribed by the legislative authority of the State or Territory in which the same may he situated.”
Sec. 9 of the act of the territory of Idaho, approved Jan. 8, 1873 (Laws of 1873, p. 20; Local and Special Laws, p. 183), is as follows: “All blocks, lots, acres, or parts of the same, remaining unclaimed for a period of six months from the date of the first publication of the notice' hereinbefore provided for, shall be sold by the mayor-trustee at public auction, to the highest bidder, for legal money, after his giving notice publicly for three weeks, either in a newspaper published in said city, or by five written notices of such sale, to be posted at different and most public places in said city.....And that portion of the said tract of land included and described in the aforenamed patent, and not surveyed into blocks and lots, and claims, of acres and parts of acres, and of which the exterior lines are to be run and platted, shall be subject to the control and disposal of the said mayor-trustee, under and by virtue of duly enacted ordinance or ordinances of the said common council of said city.”
The land in controversy was not surveyed into blocks and lots, or claims, and therefore was subject to disposal by the mayor-trustee only under and by virtue of duly enacted ordinance or ordinances of the common council of said city. Appellants did not show the existence of such duly enacted ordinance or ordinances. Sections 75 and 76 of the charter of the city of Lewiston (Special and Local Laws, p. 159) *678prescribed the method of enacting an ordinance. In this instance, the law was not observed in any particular.
Appellants contended that “The lands described in the complaint were properly subject to the action of the mayor-trustee, and as he acts for the general land department in the disposal of the town site, and, as he has acted in regard to it, it will be conclusively presumed that all the preliminary requirements have been properly complied with, and the records of the council are not admissible to show that such requirements have not been complied with.” There is no such conclusive presumption. The presumption is indulged that public officers have duly and regularly performed the duties reposed in them by law; but there is no presumption that power is vested in a public officer to do a particular thing. Power must be shown to exist either by the statute or constitution, or by virtue of the common law, of which the courts take judicial notice, or by proof. Of course, there are implied powers which are essential to the execution of power expressly granted. The burden of showing , authority in the mayor-trustee to execute the deeds „to appellants’ predecessor rested upon them. The passage of an ordinance or ordinances, authorizing the deeds in question, was a necessary condition precedent to the existence of power in the mayor-trustee to execute the deeds and make the conveyance.
The case was fully presented, both in the briefs and upon oral argument, and no good purpose could be served by granting a rehearing. Appellants suggest that if called upon to meet the issue, they are prepared to introduce additional evidence as to the ordinary high-water mark of Snake River. Manifestly, this is not sufficient reason for reversing the judgment.
The petition is denied.
McCarthy and Dunn, JJ., concur.