— In 1899, and for a long time prior thereto, the Boise Central Bailway Company was the owner of a strip of land, now known as the “citizens’ right of way,” extending easterly and westerly through Boise City. In May, 1900, one John Broadbent obtained a sheriff’s deed to this right of way, and shortly thereafter a large number of citizens of Boise raised by popular subscription about $18,000 for the purchase thereof, and on receipt of this money Broadbent, the holder of the legal title, and other parties, claiming an equitable interest therein, conveyed this right of way to “Nathan Falk, William H. Bidenbaugh and A. J. Glorieux, Trustees.” Nathan Falk died in July, 1903, and. from that time to January, 1912, Bidenbaugh and Glorieux continued to act i.n the capacity of trustees of said right of way. On January 10, 1912, Bichard H. Johnson was appointed by Bidenbaugh and Glorieux to be a trustee in the place , of Nathan Falk, deceased, and on January 17, 1912, a deed was executed by the heirs of Nathan Falk, deceased, purporting to convey to Johnson all of their title to said right of way as successors in interest of Nathan Falk, trustee.
On January 15, 1912, A. J. Glorieux, W. H. Bidenbaugh and B. H. Johnson caused to be filed with the proper officers articles of incorporation of the Citizens’ Bight of Way Company, Ltd., the purpose of such incorporation being to make said corporation the successor of the incorporators as trustees of said right of way; and on January 26, 1912, said parties describing themselves as trustees, executed a deed conveying to the conporation “all of the right, title and interest of the said parties of the first part which they and each of them have, as the successors in trust of the said original trustees, in and to the said premises.”
In August, 1922, a contract was entered into between the Oregon Short Line Bailway Company and the Boise Chamber of Commerce, by which it was sought to secure the- construction of the main line of said railroad to the city of Boise. Among the obligations assumed by the Chamber of Commerce in said contract was one providing that it should *531secure for said railroad company that portion of the citizens’ light of way within the limits of the said city. After considerable controversy and delay, during which an election was held to obtain an expression of the citizens of Boise as to whether such deed should be executed by the Citizens’ Right of Way Company, Ltd., a deed to the right of way by the Citizens’ Right of Way Company, Ltd., was executed and placed in escrow. The railroad company denied the sufficiency of this deed, and refused to accept it, claiming that the Citizens’ Right of Way Company, Ltd., was not legally authorized to act as trustee for said citizens’ right of way, and thereupon the petitioners brought this action praying that the district court of Ada county fix' a day and require the Citizens’ Right of Way Company, Ltd., to appear and show cause, if any, why that court should not grant the prayer of petitioners and appoint trustees for said right of way, all the original trustees having died. A citation was issued and served upon said corporation, and upon its answer to the petition the court tried the issues and made findings of fact and conclusions of law, holding that the Citizens’ Right of Way Company, Ltd., was without authority to act as trustee, and entered judgment appointing Richard H. Johnson, Sumner W. Dee and W. M. Wood, as trustees of the citizens’ right of way. From this judgment the Citizens’ Right of Way Company, Ltd., appealed.
Appellant specifies nine errors, but the consideration of only one is required to determine the case before this court, and that is that the court erred in holding that a vacancy existed in the trusteeship of said citizens’ right of way requiring the appointment by the court of trustees to carry out the terms and conditions of the trust.
Appellant contends that no trust concerning the right of way was established by the deed from Broadbent and others to the grantees named therein. We think this position of appellant is untenable under the pleadings in this ease. The petition sets up that after the sheriff’s deed had been delivered to Broadbent “arrangements were made with said Broadbent and others claiming interest in said right of way *532to purchase the same, and sundry citizens of that city, 241 or thereabouts in number, subscribed and paid over to a committee appointed for that purpose a large sum of money, to wit, more than $17,911.37, for the aforesaid purposes and named and appointed Nathan Falk, William Ii. Ridenbaugh and A. J. Glorieux as trustee for themselves and other inhabitants of Boise City to receive the deed to said property when it was purchased from the owners thereof and hold the same in trust for railway purposes and to the end that the same might be used for railway purposes, and to aid and encourage the building of a railroad or railroads thereon, and to -be by said trustees or their successors in interest thereafter conveyed to aid in the construction of or in procuring of additional railroad facilities into or through said city of Boise, under such terms and conditions as to said trustees, or their successors in trust, would result in sufficient benefit to the citizens of Boise City, as to justify them in the conveyance of said trust property. That said persons and each and every of them promised and agreed to act as such trustees under said terms and conditions, and accepted said trust and thereupon proceeded to carry out the terms thereof.”
This allegation of the petition is expressly admitted by the answer. This admission, it seems to us, completely refutes the claim of appellant that no trust was established by the deed. If, however, this were not admitted the record shows without dispute that the right of way was purchased with funds contributed 'by more than 200 citizens of Boise, and that the deed was taken in the name of A. J. Glorieux, William H. Ridenbaugh and Nathan Falk, trustees. Under a well settled equitable principle, affirmed by the decisions of this court, a trust resulted from this situation. (3 Pomeroy’s Equity Jurisprudence, sec. 1037; Branstetter v. Mann, 6 Ida. 580, 57 Pac. 433; Pittock v. Pittock, 15 Ida. 426, 98 Pac. 719.)
In addition the record shows that the three persons named accepted the trust and proceeded to carry out its terms as outlined in the petition and admitted by the answer, and *533after the death of Nathan Falk in 1903, "William H. Ridenbaugh and A. J. Glorieux continued to act as such trustees and executed several deeds and contracts in such capacity. Without the admission mentioned, it is perfectly clear that it was the intention of the grantor and grantees in the Broadbent deed to establish a trust. The Compiled Statutes of Idaho contain the following provisions with regard to trusts:
“When a trust exists without any appointed trustees or where any or all of the trustees renounce, die, or are discharged, the district court of the county where the trust property or some portion thereof is situated, must appoint another trustee to direct the execution of the trust. The court may, in its discretion, appoint the original number or any less number of trustees.” (C. S., see. 6417.)
The deed from Broadbent to Glorieux, Ridenbaugh and Falk made no provision for the appointment of successors to the original trustees. We know of no authority empowering the trustees to fill a vacancy or to incorporate and transfer their trust to the corporation, and none has been called to our attention. The situation is one provided for by section 6417, supra, and the district court was authorized to appoint trustees to fill the vacancies shown to exist.
The judgment appointing Richard H. Johnson, Sumner W. Dee and M. W. Wood as trustees of said citizens’ right of way is therefore affirmed.
McCarthy, William A. Lee and Wm. E. Lee, JJ., concur.(August 24, 1923.)