Hodges v. Lemp

AILSHIE, C. J. This action was instituted by the mayor of Boise City for the purpose of securing a decree canceling — 405 — and setting' aside two deeds issued by his predecessor in office to John Lemp, now deceased, conveying to Lemp certain portions and parcels of the townsite of Boise City. The complaint alleges that the appellant is the duly elected, qualified and acting mayor of Boise City, and as such is the successor in interest as trustee to all the rights conferred under and by virtue of the laws of the United States and the territory and state of Idaho relative to the entry and disposition of government townsites for the use and benefit of the several occupants and inhabitants thereof. The following is the substance of the material allegations of the complaint: That John Lemp departed this life on the 18th of July, 1912, and that Herbert Lemp is the executor of his estate; that Edward Lemp, one of the devisees under the will of John Lemp, deceased, departed this life on the 15th of September, 1912, and that Herbert Lemp is the executor of his estate; that Henry E. Prickett, as mayor of Boise City, on November 23, 1867, filed a plat of Boise City in the office of the recorder of Ada county, Idaho, and which plat ever since has been and now is of record in the office of the county recorder of Ada county; that Henry E. Prickett, as mayor of Boise City, filed upon the townsite of Boise City on the 13th day of January, 1868, in accordance with the statutes of the United States and the rules and regulations of the Interior Department; that thereafter and on the 2d day of May, 1870, a patent issued from the United States to Henry E. Prickett, as mayor, in trust for the benefit of the occupants and inhabitants of Boise City, which patent is of record in the office of the county recorder of Ada county; that the patent as issued to Prickett, mayor, granted and conveyed 442 acres, whereas the plat of the original town-site of Boise City, as filed and recorded by Prickett, covered an area of only 410 acres, and that there was granted by said patent the sum of 32 acres in excess of the amount covered by the recorded plat of the townsite of Boise City and that the excess area of 32 acres was not platted; that James A. Pinney, as mayor and trustee and as the successor in office of' Henry E. Prickett, did on the 5th day of June, 1891, in — 406 — consideration of the sum of one dollar, make, execute and deliver to John Lemp his deed for a tract and portion of the lands covered by the patent from the government to Prickett, as trustee, and by which deed it was attempted to convey by Pinney as mayor to Lemp an area of 4.55 acres, and that this tract and parcel of land was a portion of the 32 acres excess and immediately adjoined the townsite of Boise City as shown by the recorded plat filed by Henry E. Prickett, and that this deed was duly and regularly recorded in the office of the recorder of Ada county; that this 4.55 acre tract so granted by Pinney to Lemp had never at any time prior thereto been platted into lots .or blocks as required by law; that the land so conveyed' was vacant, unoccupied and unclaimed land at the time of the entry thereof by Prickett as mayor and at the time of the issuance of patent from the United States therefor; that in January and February, 1871, Prickett caused notice to be published • as required by law, requiring all claimants and occupants of land to make application therefor, and that Lemp did not make any application therefor or receive deed under such notice or any deed from Prickett at all; that in the year 1910, Lemp platted this tract of 4.55 acres and placed the same upon the market. It is then alleged that Pinney held the title to this land in trust for the use and benefit of the citizens collectively of Boise City, and that Lemp “squatted” upon this tract of land, knowing that he had no right thereon and knowing that the same was the property of the inhabitants of Boise City. That the plaintiff qualified as mayor of Boise City on the 25th day of May, 1912, and that he did not discover the facts upon which this action is predicated until about the 15th day of September, 1912. Plaintiff alleges a second cause of action in which he sets out the same facts as heretofore recited with reference to the entry of Boise City and acquiring title thereto, and then alleges that on the 25th of June, 1897, Walter E. Pierce, as mayor of Boise City, made application to the United States land office for an additional townsite entry under the laws of the United States, which application was duly allowed, and thereafter and on the 23d day of May, 1898, a patent issued — 407 — to Walter E. Pierce, as mayor, in trust, as provided by the laws of the United States, for lot 10, sec. 3, township 3 north, range 2 east, Boise meridian, containing 1.13 acres adjoining the townsite of Boise City; that thereafter and on February 26, 1908, John M. Haines, as mayor and trustee and as successor in office to Walter E. Pierce, in consideration of the sum of five dollars, made, executed, and delivered to John Lemp, his deed for this tract of land, being 1.13 acres; that on the 26th day of June, 1897, W. E. Pierce, as mayor and trustee, caused public notice to be given, as required by law, of his entry of this tract of land as an additional townsite entry, and that Lemp did not, within sixty days after the first publication and posting of this notice, make his application for a deed as required by law, and that this tract of land was never prior to conveyance thereof from the government to Pierce, as mayor, surveyed and platted into lots and blocks, as contemplated and required by the statutes of the state of Idaho; that Lemp did not pay all or any of the expenses of making this additional townsite entry or publication and posting of notices, as required by law; that this tract of land was thereafter and in the year 1910 by Lemp platted and placed upon the market for sale and speculation; that at the time of the issuance of deed by Haines, as mayor, to Lemp, the title thereto was vested in Haines, as mayor, and in trust for the benefit of the people of Boise City in their collective capacity. To this complaint the defendant demurred on various grounds, among which is that the complaint does not state facts sufficient to constitute a cause of action and that plaintiff has no legal capacity to sue, and that the complaint shows upon its face that the cause of action attempted to be stated was barred by the provisions of secs. 4036, 4037, 4039 and 4040, Rev. Codes. It is first contended that the mayor cannot maintain this action. We do not think this contention is well taken. The townsite of Boise City was entered under the provisions of sec. 2387 of the Rev. Statutes of the United States (U. S. Comp. Stats. 1901, p. 1457, 6 Fed. Stats. Ann. 344), which section is as follows: — 408 — “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 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 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.” Sec. 2391 of the Rev. Statutes of the United States (U. S. Comp. Stats. 1901, p. 459, 6 Fed. Stats. Ann. 351), provides that “Any act of the trustees not made in conformity to the regulations alluded to in sec. 2387, shall be void.” On January 6, 1871, the territorial legislature passed an act providing for the disposition of the townsite of Boise City pursuant to the provisions of sec. 2387, U. S. Rev. Statutes (U. S. Comp. Stats. 1901, p. 1457, 7 Fed. Stats. Ann. 344), and the several acts of Congress (Special and Local Laws of Idaho, p. 30). Sec. 1 of this act provided that the mayor should act as trustee and make deeds of conveyance to all parties entitled thereto according to their respective interests, and that within ten days after the passage of the act he should publish a notice in some newspaper published in Boise City, requiring all persons claiming lands- therein- to make their respective claims therefor to him at his office, and that at the same time he should make or cause to be made and filed in his office a plat of the townsite of Boise City, which plat should in all respects be a true and correct copy of the one on file in the office of the county recorder of Ada county, and which plat had been filed by Henry E. Prickett, mayor, who entered the townsite in the United States land office. Sec. 2 of the act of January 6,1871, provides as follows: — 409 — “The occupants of said townsite may at any time within sixty days after the filing of such plat and the publication of the notice aforesaid, make their respective applications for title to such portion of said townsite as is claimed by them, which application shall be in writing, and shall set forth that such claimant is an occupant of said townsite, and of the lot or lots, block or portion claimed by him or her, and shall specify in what such occupancy consists, which shall be either actual residence thereon, in closure, or some permanent improvement on some portion of the lot or block claimed, and shall particularly designate and describe such lots, blocks and improvements, and said applications shall in all cases be verified by the oath of the applicant, or by some person on his or her behalf, in the manner prescribed for the verification of pleadings in civil actions in courts of justice in this territory; provided, that no claim shall be received which shall not conform to the requirements of this act.....” Section 3 of that act provides that at the expiration of sixty days from the giving of such notice, the mayor should, upon the payment of the price provided in section 5, where no adverse claims had been filed, execute deeds to all parties, making and filing their applications within the sixty-day period, and section 8 provided that all lots remaining unclaimed for a period of three months after the first publication of the notice, as required by section 1, should be sold at public auction to the highest bidder for cash, after giving at least three weeks’ notice in the manner prescribed for the notice of sale of real estate by the sheriff on execution, the proceeds of such sale to be paid into the treasury of Boise City. Lemp did not avail himself of any of the provisions of this statute, and made no claim thereunder for any of the land here in controversy. Thereafter, the territorial legislature of 1875 passed an act supplemental to the act of 1871, whereby the mayor was authorized to cause published notice to be given to all parties who had made applications for deeds and who had failed to make payment therefor, to make their payment, together with ten per cent penalty, and receive their deeds. This act provided that upon failure to do so, the mayor should — 410 — sell all such property to the highest bidder for cash and turn the proceeds into the city treasury. (Special and Local Laws of Idaho, p. 33.) Lemp again failed to avail himself of the provisions of this statute, and to claim a deed to the property here in question. This property was not then deeded to anyone. Neither was it sold at public auction. The mayor was by law made the trustee for the city and its inhabitants, and we are satisfied that if any action can be maintained, it must be maintained by the mayor as trustee for the community in its collective capacity; or, in other words, for Boise City. This court, in considering a like trust in Scully v. Squier, 13 Ida. 417, 90 Pac. 573, and in discussing the duty of the mayor as trustee under the government townsite law (sec. 2387, U. S. Rev. Stats.; U. S. Comp. Stats., p. 1457, 6 Fed. Stats. Ann. 343), and the statute of this, state as applied to the townsite of the city of Lewiston, said: ‘ ‘ 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.” (To the same effect, see Newhouse v. Simino, 3 Wash. 648, 29 Pac. 263.) Applying this rule to the case at bar, the mayor of Boise City took title in trust for all the individual occupants of the townsite who made claims to the respective lots or tracts occupied by them,.and it became his duty under the statutes of the United States and the statutes of this state (then territory) to convey the title held by him to the respective occupants and claimants who, in compliance with the statute, showed themselves entitled thereto. On the other hand, he held such tracts or parcels of this townsite as were not claimed by individual occupants in trust for the community in its collective capacity. The fact that no one made claim to any given tract of ground in accordance with the provisions and requirements of the statute did not authorize or license any — 411 — person to summarily take the property, nor would a claim asserted in any other manner than that provided by law entitle such claimant to the property or confer title on him, nor would it authorize the mayor-trustee to convey the property to such person. It was the purpose of the townsite law to pass title to bona fide occupants and claimants of lots for use and occupancy and not for speculative purposes. (Martin v. Hoff, 7 Ariz. 247, 64 Pac. 445; Pascoe v. Green, 18 Colo. 326, 32 Pac. 824; Clark v. Titus, 2 Ariz. 147, 11 Pac. 312; Denver v. Kent, 1 Colo. 336; Marysville Inv. Co. v. Holle, 58 Kan. 773, 51 Pac. 281.) On the other hand, it was intended that if any surplus land should be left or if any speculation might be had, it should inure to the benefit of the city. It has been suggested that the city could not hold the title to the property and that the mayor as trustee could not convey the property to the city. "We are not directly confronted with that question in the present case, but, in passing, we may observe that the statute directs that the proceeds realized from the sale of any unclaimed or unoccupied tracts of this town-site should be turned in to the treasury of Boise City. If, then, the proceeds realized from the sale of any unoccupied or unclaimed tract would go into the general treasury of the city and become the property of the city, we can see no reason why the tracts or parcels of land for which such sale might be made might not likewise belong to the city and become the property of the city. There can be no special virtue in a sale that will convert the title of the proceeds to the city if the property sold was in fact not the property of the city. This would bring us back to the original proposition that any unsold or unclaimed lots or parcels of land in this town-site belong to the city, — to the inhabitants of the city in their collective capacity, — and so would the proceeds realized from the sale of any of this property become the property of the city, and, in conformity with the statute, must be turned into the city treasury. The demurrer should not have been sustained. The complaint on its face does not show that the cause of action is barred, nor does it show such facts as in equity would invoke — 412 — the doctrine of estoppel. The complaint states a cause of action. The demurrer should have been overruled and the defendant should have been required to answer. The judgment will be reversed and the cause is hereby remanded, with direction to overrule the demurrer and permit the defendant to answer. Costs awarded in favor of appellant. Stewart, J., concurs.