This is an action to prevent alleged encroachments on D street in the city of Lewiston. The appellant as plaintiff brought this action against the respondents, alleging that they were encroaching upon said D street, and charging them with having taken for their private use approximately four feet off the south side of said street and of extending their buildings over and upon said four feet of land wrongfully.
The nature of this action is a suit in equity to abate a nuisance alleged to be a public nuisance, damaging to the public as well as to the plaintiff’s private rights, and praying that the same be abated and removed, and that an injunction be issued restraining and prohibiting defendants and each of them from encroaching upon said street and for a mandatory injunction against the defendants, and to restore said street to its width as claimed to have been established by the official survey of E. B. True, to wit, eighty feet.
. The defendants deny any encroachment upon said street, and allege affirmatively the incorporation of the city of Lewiston, surveying and platting of the city long prior to the said True survey; that according to said original plat and survey, the lots in question were fifty feet in length north and south, except where they widened at the bend in E street (said E street is also called Main street and Montgomery street); that about the year 1874, and long after the
The answer then alleges the .rights of respondent Fix, and avers that his right through predecessors antedates said True survey, and that the land claimed by him in addition to that specified in True’s survey never was a street or highway, but that said strip was long prior to said survey in the actual, visible, exclusive and notorious possession of said defendant and his predecessors in interest and never constituted a part of D street; that that state of facts existed at the time said True made his survey, and that the appellant when erecting his building did not cover the ground theretofore occupied by his old building, nor by the predecessors in interest of said Scully; that the Grostein building situated on the lot immediately west of the Scully lot was erected seventeen years ago, and that said building extends far out beyond Scully’s building and was built bordering on the south line of D street then given to said Grostein by city officers; that said Scully placed his building entirely off of and away from the south line of said D street as it then existed; that the field-notes and • plat of block 24 as made by said True did not correspond, and that the same are incorrect, which errors interfered with vested property rights.
The answer then alleges that said respondents are attempting to use only the same ground that they and their predecessors have always used; that the premises of each of the respondents extends to the south line of D street as actually used.
After the trial of the case, the court made quite elaborate findings of fact, and deduced therefrom conclusions of law to the effect that the ease made on behalf of the appellant was devoid of equity and that he was without any standing in a court of equity; that he has no such interest as would permit him to maintain this action, and that the defendants were entitled to judgment and decree in their favor, and judgment was entered accordingly, dismissing the action. This appeal is from the judgment and the order denying a new trial.
In deciding this ease, it becomes necessary to recur to a few of the historical facts connected with the location and settlement of the city of Lewiston. It was first settled in the year 1861, upon what was then a part of the Nez Perce Eeservation. At that time the territory now included in the state of Idaho was a part of the territories of Washington, Nebraska, Dakota and Utah. (See People v. Williams, 1 Idaho, 85.) Nez Perce county, in which the city of Lewis-ton is located, was organized under an act of the legislature of Washington territory on December 20, 1861. The territory of Idaho was organized under an act of Congress approved March 3, 1863, and its first territorial legislature convened on the 7th of December, 1863, and adjourned on the fourth day of February, 1864, which session was held at the city of Lewiston. At that session of the legislature, by an act approved February 4, 1864, the boundaries of Nez Perce county were changed and that county reorganized. (1 Sess. Laws, p. 628). Lewiston at that time was a
The first section of that act defines the boundaries of said city, and recites that the territory incorporated “constitute in square form, as near as practicable, according to government survey, one square mile, intended to include the square mile of land stipulated for in favor of said town in the treaty between the United States and the Nez Perce tribe of Indians now pending, is hereby organized into a municipal corporation under the name of ‘The City of Lewiston.’ ” It would appear from this that a treaty was then pending between the United States and the Nez Perce tribe of Indians for the tract of land on which the city of Lewiston stood, to the extent of one square mile.
Levi Ankeny was mayor of the city of Lewiston in 1871, and on November 21st of that year filed his declaratory statement No. 39 in the United States Land Office at Lewiston, proposing to enter the lands included within the borders of said incorporation, in trust for the inhabitants of the city of' Lewiston, claiming settlement, in 1861. Cash entry was made for said lands on June 6,1874, by Henry W. Stainton, Mayor, in trust for the inhabitants of said city.
This entry was made under the provisions of section 2387 of the Revised Statutes of the United States, which section is as follows:
“(Entry of town authorities in. trust for occupants.) Whenever any portion of the public lands have been or may be settled upon and occupied as a townsite, not subject to entry under the agricultural pre-emption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge of the county court for the county 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 usePage 428and 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 of the sales 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 be situated. ’ ’
The trust provided for by this section is dual in its nature. It exists for the benefit of the occupants as individuals, and also collectively as a community. The title to occupants of lots vested in the mayor-trustee for their benefit severally when the entry was made. The title to lots to which no valid claims are held by individuals is taken in trust by the trustee for the occupants of the townsite collectively. (See notes to said section 2387, 6 Fed. Stat. Ann., p. 343.) Under the provisions of said section, the execution of the trust created, as to the disposal of the lots in such town, must be conducted under such regulations as may be prescribed by the legislature of the state wherein such town is located.
The legislature of the territory by an act approved January 8, 1873 (7 Sess. Laws, p. 16), provided for the survey, platting and disposal of the land in the city of Lewiston pursuant to the United States statutes in regard to such matters. Said act provides that the mayor-trustee shall cause to be made and filed in his office by a competent person a plat of the land within said city, divided into blocks and lots, and “to make and deliver to the bona fide occupants of such portions of said land described in said patent from the government of the United States who may be entitled thereto, good and sufficient deeds of conveyance in fee simple according to their respective rights.”
Under the provisions of said laws, one E. B. True was employed to survey and plat the lands in said town, and was commanded to adjust said plat so as to conform to the conditions of the improvements and the use and occupation of such lands by the settler, and the mayor was required to make and deliver to the bona fide occupants of such lands good and sufficient deeds of conveyance in fee simple according to their respective interests, under the provisions of said law.
It must be kept in mind that Lewiston existed prior to the True survey. The settlers did not acquire their right under the plat nor by virtue of it. The survey and plat was made for them; they were not made for the survey and plat.
In Parcher v. Ashby, 5 Mont. 68, 1 Pac. 204, a Montana case, the court had under consideration a controversy over a strip of land sixteen feet wide on Rodney street in the town of Helena. That townsite was entered by the probate judge, and the court there held that the survey must conform as near as may be to the existing rights and interests of the occupants, and that no valid and subsisting easements could be destroyed by the survey and the acceptance of the plat by the county commissioners. The court in referring to the requirements prescribed by the legislature of Montana, said:
“These regulations could not enlarge or diminish the rights or interests of occupants of the lots. And so our legislature provided that the survey and plat of the townsite should conform, as near as might be, to the existing rights, interests, and claims of the occupants thereof. The lots were to be surveyed and the streets and alleys as they existed prior to entry were to be respected and recognized. For in no other manner could the occupants obtain title to their lotsPage 430according to their several rights and interests. The plat and survey of the probate judge must conform to the old survey by which the occupants had held and occupied their lots prior to the entry of the townsite; otherwise his plat and survey is so far void.....The rights of occupants accrued before the entry of the townsite by the probate judge, and the mere fact that his plat and survey failed to designate a street or alley as it existed before his entry and survey does not thereby destroy such street or alley and change the ground occupied by the same into a lot that can be sold. And so, for the same reason, if this plat and survey had designated ground theretofore occupied as a lot, as an alley or street, said designation would not in any manner affect the right of the occupant to his lot.”
It is there held that the plat and survey could not in any manner affect the right of the occupant to his lot. The rights of the occupant had attached prior to True’s survey, and the entry of the townsite was made in trust for the occupants who were in possession of particular tracts of land as well as for the community in general. The surveyor could not devest them of their rights. The survey was for their benefit and should have confirmed those rights.
In Ashby v. Hall, 119 17. S. 526, 30 L. ed. 469, 7 Sup. Ct. Rep. 308, the supreme court of the United States held that the interests which the occupants possessed previous to the entry, either in the land occupied by them or in rights of way over adjoining streets and alleys, were secured by it. The court said: “The power vested in the legislature of the territory .... was confined to regulations for the disposal of the lots and proceeds of the sales. These regulations might extend to provisions for the ascertainment of the nature and extent of the occupancy of different claimants of lots, and the execution and delivery to those found to be occupants in good faith of some official recognition of title in the nature of a conveyance. But they could not authorize any diminution of the rights of the occupants when the extent of their occupancy was established.” Upon this point, see, also, Bingham v. Walla Walla, 3 Wash. Ter. 68, 13 Pac. 408.
In Stringfellow v. Cain, 99 U. S. 610, 25 L. ed. 421, the court said: “The occupant of a lot at the time the entry of a townsite is made is its real owner.”
In the case of City of Pueblo v. Budd, 19 Colo. 579, 36 Pac. 599, it is said: “The entry of the townsite, therefore, being ‘in trust for the several use and benefit of the occupants thereof, according to their respective interests,’ each of such occupants at the time of the entry became, to the extent of their respective holdings, beneficiaries of the trust, and were vested with equitable ownership of the lot or parcel of land to the extent of their occupancy.”
E. B. True had no authority to attempt to take private property for street purposes, nor did the fact that he ran his survey where he did deprive any of the owners of their property rights which were then vested. (City of Helena v. Albertose, 8 Mont. 499, 20 Pac. 817; Tredway v. Wilder, 8 Neb. 91; Bingham, v. Walla Walla, 3 Wash. Ter. 68, 13 Pac. 408; Parcher v. Ashby, 5 Mont. 68, 1 Pac. 204; Hall v. Ashby, 2 Mont. 489; Alemany v. City of Petaluma, 38 Cal. 553; Town of Aspen v. Rucker, 10 Colo. 184, 15 Pac. 791; Denver v. Kent, 1 Colo. 336.)
It would appear from the provisions of said section 2387 of the Revised Statutes of the United States, that such land is permitted to be entered by the proper authority for the use and benefit of the occupants thereof according to their respective interests. As above stated, such trusts exist for the benefit of the inhabitants, first as individuals, and after that, collectively as a community. And the title to occupied lots becomes vested in the trustee for the benefit of the occupants severally at the time such entry is made. If the
As before stated, the trust of the mayor was dual in its nature. The occupants of the lots, each as individuals, were entitled to deeds to their lots as occupied by them. The community of the city as a whole was entitled to the unoccupied lots and the public in general were entitled to the streets. The individual had no right' under the law to encroach upon the streets, and the city had no right to appropriate a portion of the lots of the occupants for a street. The mayor and the surveyor had no authority to change the beneficiaries under this trust.
There is no dispute in the evidence but that the defendants
The appellant rests his case here on the making and approval of said plat. If private rights can be taken in that way, it is a novel proceeding and a proposition unknown to our law. The record clearly shows that the mayor recognized the incorrectness of the plat, as he executed deeds showing that fact long prior to the time that said plat was filed. 'While the plat was made and approved in 1875, it was not recorded until 1879. The city of Lewiston is not here complaining of the 'erection of buildings on the lots referred to in her streets. The record clearly shows that the city has for forty-five years known that the occupants of the lots on said block 24 were claiming that such lots were fifty feet in length, and that they had buildings and other improvements covering said lots.
It is contended by counsel for appellant that none of the respondents can question the boundaries of D street without establishing a legal or equitable title owned by him at the time of the encroachment with the buildings upon the boundaries of such street, and that no equitable title vests in an occupant, other than at the time of the day of filing the application in the land office of the United States.
We think it sufficiently appears from the evidence that the lots in question were occupied, claimed and possessed ever since long before the application was made to enter said
Taking the whole record, it sufficiently appears that that portion of D street in controversy has never been possessed and occupied and used as a street, although the other parts of the street have been used since 1861, about forty-six years. We have no doubt but what appellant, regardless of the suggestions of the city engineer, has the right to extend his building out even with the other buildings placed along said street, and that the city has no right to the use of said four feet, or thereabouts, for a part of D street.
The judgment of the court below must be affirmed, with costs in favor of the respondents.