ON PETITION FOR REHEARING.
MCCARTHY, J.— In their petition for rehearing, respondents request the court to pass upon the question whether, under the terms of the trust, the trustees appointed by the court have the power to convey the trust property to the Oregon Short Line Railroad Company in fulfillment of *534the contract between, it and the Boise Chamber of Commerce. In its answer, appellant asked the trial court to determine whether the deed from it to the railway company was within the terms and conditions of the trust. On the former hearing, I was of the opinion that the latter question was not necessarily involved in the case. Both appellant and respondent represent to us that it was submitted to the lower court, and it is touched upon in one of the conclusions of law, though not expressly in the judgment.
In order to cover all matters attempted to be submitted to the trial court and avoid multiplicity of actions, I conclude that it is properly within our power to pass upon this question.
The terms and conditions of the trust as found by the trial court and supported by the evidence are as follows:
“To grant, bargain, sell, assign, transfer, convey, remise,, release or quitclaim, mortgage, hypothecate or encumber the¡ said right of way, or any part or estate or interest therein1 upon such terms and conditions as may be deemed advisable,! for railroad purposes, when in the judgment of the trustees such action will result in sufficient 'benefit to the city of Boise to justify the same; to permit, under such regulations and conditions as may be deemed proper, the laying 'of railroad tracks or extending the roads, streets, highways or sidewalks, curbing or pavement over, along and across such right of way, and the laying of gas, water, sewer or other mains, pipes or conduits or the building of roads, passages, subways, or other works, under the surface thereof, or the construction of viaducts or elevated roadways over the same, or the building of stations, depots, freight houses, or elevators thereon, and in general to permit or cause the construction or erection of- any other structure thereon or any other use to be made thereof, which may 'be deemed advantageous. ’ ’
I conclude that, under these terms and conditions, and on all the facts of the case, the trustees appointed by the court have power and authority to, and should, make a conveyance of the trust property to the Oregon Short Line Bail-*535road Company for railroad purposes, to take effect upon the fulfillment of the contract for the construction of the main line. The original opinion should he extended accordingly and the petition for rehearing he denied.
I am authorized to state that Mr. Justice "William A. Lee concurs in this opinion.
BUDGE, C. J.— A petition for rehearing has been filed in this case. In my opinion, there is no necessity for a reargument of the ease. All parties to the record are interested in a speedy determination of the questions involved. In my opinion, the pleadings should he liberally construed to the end that a final conclusion be reached and the "litigation ended.
¡ In the majority opinion, the only question finally deter, pined was whether the court erred in the matter of the appointment of Richard H. Johnson, Sumner W. Dee and W. M. Wood as trustees of the property known as the Citizens’ Right of Way. This court reached the conclusion, and I think correctly, that the lower court did not err in this respect, but, in my opinion, the determination of this sole question fails to accomplish the result sought to be reached, and we should go further in order that substantial results follow the judgment of this court.
As will be noted from the statement of facts in the main opinion,- the present trustees who acted under the erroneous belief that they were authorized so to act, made and delivered to the Oregon Short Line Railroad Company a deed conveying a certain portion of the property known as the Citizens’ Right of Way. This deed was deposited in escrow. To the sufficiency of the deed, therefore, no serious question was raised, the question being whether the trustees were authorized to make the conveyance. It was held that they were not so authorized at the time the deed was executed, but that they are now fully authorized. It was the further purpose of this litigation to determine not only the question of the authority of the trustees to execute the deed, *536but whether it is their duty to execute such a deed to the end that the purposes of the trust be accomplished.
I am unable to understand what valid objections can now be urged by the trustees for their refusal to execute a deed, since the only serious objection made by them involved the question of their authority to execute a deed in the first instance. It may not be out of place at this time to observe that, in my opinion, upon the death of Nathan Falk, no right, title or interest in and to the Citizens’ Right of Way vested in his heirs, but that upon his death all right, title and interest in and to the Citizens’ Right of Way vested in the two surviving trustees, viz., Ridenbaugh and Glorieux. Neither, in my opinion, under the facts of this case, did the formation of the corporation and the deeding to it by Mr. Johnson, by Mr. Ridenbaugh and Mr. Glorieux, then trustees, convey to the corporation organized by them any right, title or interest in and to the Citizens’ Right of Way. Upon the death of Ridenbaugh and Glorieux, the title was in abeyance until the appointment by the court, under the recent proceedings had, of the three trustees, whose appointment with power to act is no longer an open question.
From the record in this case, the purpose of the trust is not open to serious controversy. It is clear that it was the intention of the numerous citizens of Boise, when they purchased the right of way from John Broadbent in May, 1900, that this property should be used for the purpose of bringing about the construction of a railroad or railroads into Boise City, and to this end,' the trustees were appointed. The trustees themselves have no further interest in the property other than to carry out the intention of the body of citizens represented by them; and when that intention is made clear, it is not only within their power to convey the property in order that it might be devoted to the use intended, but it is their duty so to do. Neither would they be justified in refusing to execute the deed for the reason that the Oregon Short Line Railroad Company does not intend to construct its line over or upon the land described in the conveyance heretofore made and deposited in escrow. *537It is clearly within the power of the trustees to convey, by good and sufficient deed, to the Oregon Short Line Railroad Company, any portion of the Citizens’ Right of Way within the corporate limits of Boise City necessary to insure the construction of the railroad into Boise City, thereby complying with the intention of the original purchasers. It requires no stretch of the imagination to reach the conclusion that this property was purchased originally by the citizens of Boise to be conveyed as a bonus, by the trustees, to any individual or corporation that would build a railroad or railroads into Boise City. This was clearly the intention of the original purchasers. It is also patent that this property was to be used as an inducement to bring a railroad into Boise City.
In my opinion, the foregoing statement is amply sustained in the trial court’s findings and conclusions, the former reciting in detail the terms and conditions of the trust. It is not necessary to repeat them here.
While it may be contended that the trustees are vested with broad discretionary power, still such discretion should not be abused, thereby defeating the clear intention of the original purchasers and the purposes of the trust; but rather, it should be the purpose of the trustees to carry out the intention of the original purchasers as shown by the record in this case. To my mind, there is no question of either the power or the duty of the trustees to act, and it is clearly within their power, being now clothed with authority, to execute a deed in proper form and deliver the same to the Oregon Short Line Company, thereby carrying out the clear intention of the real owners as made to appear by the record.
I think we might well waive the technical objection that the only question before this court was the power of the trustees to execute the deed, and go further and hold that, under the terms of the trust, the trustees are not only authorized, but it is their duty, without unnecessary delay, to make a proper conveyance, and upon their refusal so to do, a trustee should be duly appointed for that purpose. *538The Oregon Short Line Railroad Company now stands ready and willing, under its contract, to construct a railroad into the city of Boise, conditional upon execution and delivery of a good and sufficient deed, to be deposited in escrow, conveying to it that portion of the estate of the Citizens’ Right of Way described in the deed heretofore deposited in escrow.
The questions here disposed of were fairly submitted to, and determined :by, the trial court, and acquiesced in by all the parties to this litigation. In fact, the trustees, by stipulation, solemnly agreed that if it was found by the trial court and this court that they acted without authority in executing the first deed, that if appointed .as trustees, thereby becoming clothed with the power to act, they would execute the necessary deed.
It would seem to me that the only conclusion which could be logically reached in the face of the record is that it is not only within the power of the present trustees, but it is their legal duty, to execute and deliver, as herein stated, a deed, in proper form, conveying to the Oregon Short Line Railroad Company, for railroad purposes, the land heretofore referred to.
The original opinion should be conformed to the views herein expressed.