Boise City v. Flanagan

SULLIVAN, C. J. — This is an action in ejectment brought iby the city of Boise, a municipal corporation, against James Flanagan, as administrator of the estate of James Dunn, deceased, to recover possession of what is claimed to be a part of what is known as “Fort street,” and connecting First and Second streets, in said city. The cause was tried upon an agreed stipulation of facts, and judgment went in favor of the city. This appeal is from the judgment. [151] The errors assigned go to the sufficiency of the evidence to justify the decision and that the decision is against law. The following appears from the agreed stipulation of facts: Boise City, in Ada county, was founded and established upon unsur-veyed public land of the United States; and a map or plat of said eiay, exhibiting the streets, blocks, lots, and alleys, and size of same, was filed by Henry E. Prickett, then mayor of said city, in the county recorder’s office, of Ada county, on the twenty-fifth day of November, 1867, under an act of Congress entitled “An act for the relief of the inhabitants of cities and towns upon the public domain, approved March 2, 1867.” A patent was issued to the said mayor for the land included in and covered by said plat in trust for the several use and benefit of the occupants of said townsite according to their respective interests. The following facts appear from the record: That one James Stout, the predecessor and grantor of said James Dunn, deceased, settled upon and was an actual occupant of the premises in dispute, in connection with what is termed and designated on said plat as a “fractional block,” prior to the passage of said act of Congress; and that on the tenth -day of January, 1871, said Stout made application to the mayor of said city for a deed to said fractional block, in compliance with an act of the territorial legislature providing regulations for the execution of the trust created by said act of Congress. Said application did not include the premises in dispute, although it was a part of the tract claimed by said Stout, and contiguous to said fractional block. A deed was executed to said Stout for said fractional block, and he thereafter conveyed the same to James Dunn, and by which deed he undertook to convey the premises in dispute to said Dunn. It is admitted that the premises in dispute were first inclosed in 1878, and that the city since that date had repeatedly asserted its right to the possession and control of said premises, and had repeatedly notified said Dunn to remove the fences and improvements therefrom, and that he had promised to do so, and that said Dunn has not applied for a deed to said premises, and has never paid any taxes thereon. It will be observed, from the foregoing facts, that at the date of filing the town plat of Boise City the land conveyed by, [152] and included in, said plat was a part of the public domain of the United States, and the title thereto in the United States, and that one James Stout was in the occupation and possession of the tract in controversy, in connection with a small tract, adjoining the same, both of which he held as one tract; that,, after platting or dividing said townsite into blocks, streets and alleys, a part of the tract so claimed by Stout lay in the street, and a part was platted as a fractional block; that thereafter,, to wit, on the second day of May, 1870, the United States conveyed, by patent, the land included in said Boise City townsite' as platted as aforesaid to Henry E. Prickett, then mayor of said city, in trust for the several use and benefit of the occupants of said townsite; and thereafter the legislature of the territory of Idaho passed an act which provided for the disposal of said lands as authorized by said act of Congress. Shortly after the passage of said act by the legislature of the territory of Idaho, said Stout, made application thereunder to the mayor of said city for a deed to said fractional block, in which application he did not include the premises in controversy, which had at that time been platted as a street A deed was issued to-him by the mayor for said fractional block. He thereafter, in May, 1871, sold and conveyed said fractional block to the said James Dunn, in which conveyance is also described the land' in controversy. Said land in controversy had not been inclosed up to that date, and was not inclosed by said Dunn until in June, 1878; from which time, down to the commencement of this suit, the city repeatedly asserted its control, and right to control, over said tract as a part of one of the streets of said city, and repeatedly notified said Dunn to remove all fences, and improvements from said premises, which said Dunn promised to do. It is contended by counsel for appellant that, at the time, said plat was filed, the title to said land was in the United States, and for that reason no dedication of said street was made, as a dedication, to be valid, must be made by the holder of the legal title. Said act of Congress, under which said city was acting, authorized the platting of said land into blocks, streets and alleys, and the dedication of such streets. [153] to the use of the public. That contention is without any force, as the owner of the fee authorized the dedication, as set forth in said act of Congress. Stout, by his acts, to wit, after the premises claimed by him had been platted, a part of it into a fractional block, and the remainder into a street, showed his intention to conform his claim to said plat by making application for a deed to said fractional block, and making no application whatever for that part included in the street. A deed was executed to him for the land included in his said application, and no application has been made by him or his grantee for a deed to the land in controversy. It remained open, without improvements, until June, 1878, when the said James Dunn placed a fence around it, and made other improvements thereon. Thus, for about eleven years the land lay without any improvements; and said decedent or his grantor never listed said land for assessment and taxation, and no taxes have been levied against it; and said Dunn was notified at divers times- to remove said improvements from said premises by the city authorities, and he promised to do so. Thus, by the acts of said James Stout, grantor of James Dunn, now deceased, and by the acts and declarations of said James Dunn, they admitted title and right of'possession of said premises- in the respondent city. The conclusion is irresistible that, if said Stout ever had a right to said premises as a townsite occupant, he abandoned it. (See Young v. Tiner, 4 Idaho, 269, 38 Pac. 697; Thompson v. Holbrook, 1 Idaho, 610.) And said Dunn recognized the authority of the city.over said premises by promising to remove therefrom certain fences and other improvements that he had placed thereon. The judgment of the court below is affirmed. Costs awarded to the respondent. Huston and Quarles, JJ., concur.