Parchen v. Ashby

Wade, 0. J. This controversy arose over a strip of land sixteen feet wide on Eodney street, in the town of Helena, and extending westerly ninety feet in the rear of lots owned by plaintiffs, which they claim is an alley, and prosecute this action to have the same so declared, and to perpetually enjoin the defendant from obstructing the same. The defendant denies that the ground is, or that it ought to be, declared an alley, and claims to own the Same by virtue of a deed from the probate judge. On the trial 'the court found the following facts and conclusions of law: First. That Scott’s addition to the town of Helena was laid out, surveyed and platted in the spring of the year 1866, with sixteen-feet alleys through the center of the blocks thereof, in an easterly and westerly direction, in which was comprised the ninety-feet alley in controversy, the title to the ground of which, and as to all the ground occupied by the town, and the streets and alleys thereof, being at the time, and until the entry of the town site in 1869, in the government of the United States. Second. That the original occupants of the lots adjoining that portion of the alley involved in this action respected and recognized said alley, as did their grantees and successors in interest, up to and at the date of the entry of said town site by the probate judge of said ■county, and that the respective parties hereto accepted and received deeds to their lots adjacent thereto, bounded by said alley, and in locating, fencing and occupying their lots, respected, marked and bounded said alley. At the western boundary of the ground in controversy, and at the eastern boundary of the Watson lot, said alley, as surveyed and platted in 1866, was obstructed by a fence shortly after the alley was laid out and surveyed, and thereafter was not opened or used as au alley west — 83 — ward from said ninety feet. There is no proof that this ninety feet was laid out as a cul-de-sac. Third. That the ninety feet of said alley was used as an alley during the years 1866, 1867, 1868, 1869, 1870 and 1871, up to the date of the obstruction thereof by defendant. The principal use to which the alley was-put was for taking in wood and hay, and for ingress and egress of the cows of the adjacent occupants. But the alley ever was a thoroughfare, so far as a street with an outlet at one end, and closed at the other, can become such. o Fourth. That said plaintiffs and their predecessors in interest have erected valuable improvements upon their lots adjacent to said ninety feet of alley, and had and held a right of property therein at . the time of the entry of said town site by said probate judge, and the same was used as an alley by all the inhabitants of said town residing in the vicinity thereof. Fifth. That the same was an alley at the time of the acquisition of the title of the defendant and his predecessors in interest, to the lots owned by him adjacent thereto, and was so designated in his deed to said property, and was acquiesced in and recognized as such by himself and grantors up to the time of his obstruction of the same. Sixth. That the map of the town,made by the direction of the probate judge as trustee, and presented to the county commissioners, and approved by them under the town site act, did not show that the locus in quo was an alley. No action of the county commissioners has been taken to lay out this ground as an alley, highway or cul-de-sac. No appeal or proceedings were ever taken from the survey or map made by direction of the probate judge and filed with the county clerk and recorder, and approved by the board of county commissioners. No appeal was ever taken from the decision and action of the probate judge conveying that property to defendant, — 84 — or from the survey and map, whereby the alley was ignored and the same put down as a lot for sale. Seventh. That notice to occupants by said probate judge to prove up and enter their lots was duly given. Eighth. That said defendant, on the 6th day of December, A. D. 1871, made application to enter the property designated in his answer, and on the-day of-, 1872, received a deed therefor from the probate judge. And as conclusions of law the court found: First. That at the time of the entry of said town site by the probate judge, the said plaintiffs and other adjacent lot-owners on said alley had a subsisting and valid right therein, and to the use thereof as such alley, and the probate judge entered the same in connection with said town site in trust, with the usual rights and interests in and to such alley. Second. That being an alley at the time of such entry, and used as such, his conveyance thereof to defendant is void and inoperative. Third. That not being authorized to convey the same, the failure to interpose an adverse claim against defendant’s application to enter was and is of no consequence. The act of congress concerning the reservation and sale of town sites on the public lands (U.. S. E. S. sec. 2387) in substance provides that whenever any portion of the public lands have been or may be settled upon and occupied as a town site, it shall be 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 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, to be conducted under such regulations as may be prescribed by the legislature of the state or territory in which the same may be situated. — 85 — Section 2391 (U. S. E. S.) provides that any act of the trustees, not made in conformity to the regulations alluded to in section 2387, shall be void. The statute of the territory in aid of this trust, and to carry the same into effect, in substance pi-ovides that the judge of the probate court shall, within three months from and after the entry of the town site, unless a survey and accurate plat thereof has been previously made, cause the same to be surveyed, and a plat thereof made, which survey and plat shall conform as near as may be to the existing rights, interests and claims of the occupants thereof, which survey and plat shall be submitted to and accepted by the board of county commissioners in the county where the town is situated; that the town site shall be surveyed into blocks, lots, streets and alleys; that the plat of such town shall be filed in the office of the county recorder, and thereafter the streets and alleys designated in such plat shall remain dedicated to the public use forever. E. S. Mont. 5th div. secs. 1207-8. 1. It appears from the findings of the court that in the spring of 1866 the town of Helena was surveyed and platted, and that the ground in question was by the survey and plat designated as an alley, and was so used by the public for and during the years 1866, 1867, 1868, 1869, 1870 and 1871, up to the date of the obstruction of the same by the defendant; that the original occupants of the lots adjacent to said alley respected and recognized the same as an alley, as did their grantees and successors in interest, up to the date of the entry of the town site by the probate judge; that both the plaintiffs and the defendant accepted and received deeds to their lots adjacent thereto and bounded by said alley; and that in locating, fencing and occupying their lots, they respected, marked and bounded said alley. Not only the parties hereto and their predecessors in interest, but the general public, recognized, used, accepted and respected said ground as an alley, and had for all the three years next — 86 — prior to, and did at the time of the entry of the town site by the probate judge. These findings were authorized by the allegation of the complaint which avers that the plaintiffs had been in the peaceable and quiet possession, use and enjoyment of the ground in controversy as an alley, easement and right of way, and that the same was so used, set apart and enjoyed by the common consent of adjoining claimants and by general usage prior to the survey and entry of what is known as the Helena town site. Prior to that time all the streets and alleys of the town could only have been used as such by common consent and general usage. Prior to that time the title to all the land covered by or included within the town, as well the streets and alleys as the lots, was in the government, and the survey and plat of 1866, as to streets and alleys, derived all its vitality from general usage and common consent. Technically the occupation of the lots and the use of the streets and alleys was a trespass, and the purpose of the act of congress, providing for the reservation and sale of town sites on the public domain, was enacted to enable the occupants of lots so situated to become the owners of the land they so occupied. And so the act provided for the entry at the proper land office of the land so occupied, in trust for the several use and benefit of the occupants thereof according to their respective interests. Disposing of the lands covered by a town, to the occupants, according to their several rights and interests, could not be done except that the streets and alleys then in public use were reserved to the public. The trustee was to dispose of the lots under such regulations as the local legislature might prescribe, and any departure from such regulations rendered his acts void. These regulations could not enlarge or diminish the rights or interests of the occupants of the lots. And so our legislature provided that the survey and plat of the town site should conform as- near as might be to the — 87 — 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 the entry, were to be respected and recognized. For in no other manuer could the occupants obtain title to their lots according 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 town site; otherwise his plat and survey are so far void. The provision of the territorial statute, dedicating the streets and alleys as designated on the plat and survey of the probate judge to the public use forever, is of no consequence unless such’ survey and plat conform to the rights of the occupants prior to such survey. If, prior to the survey of the probate judge, there had been an earlier survey and plat designating lots, streets and alleys, and the occupants had, by general usage and common consent, accepted such survey and plat, and had bought and sold their lots accordingly, and the streets and alleys thereof had been used as such by the public with common consent, then such streets and alleys remained streets and alleys after the survey and entry of the probate judge, though not so designated on his plat and survey. The streets and alleys did not so belong to the territory that its legislature could dedicate them to the public use forever. Such dedication can only be made by the owner of the property dedicated. The legislature was only authorized to regulate the sale of the lots. The act of congress providing the means whereby the lots might be conveyed to the occupants according to their several rights and interests, in a town situate on the public domain, which before such enactment had been platted and surveyed into blocks, lots, streets and alleys, which were recognized and used as such by the public, and by which the occupants, in the conveyance of their possessory interests or titles, bounded and described their lots, was a dedication of the streets and alleys, as — 88 — they then existed, to the public use, and the act of the legislature, either enlarging or diminishing such dedication, thereby enlarging or diminishing the rights and interests of the-occupants to their lots, was not authorized, and did not confer any rights. If it did, then private property might be taken for public use by a mere survey and plat of a probate judge. The occupants of lots under the old survey acquired certain easements,' rights and interests in and to the streets and alleys which had been opened and used as such, adjacent to the lots so occupied. The trust in the probate judge attached to these rights and easements the same as it did to the lots themselves. He became the trustee of the occupants for all their interests or rights in or pertaining to the lots. If, before the survey and entry by the probate judge, an occupant had acquired a right-or interest in a public street or alley, it became as much the duty of the probate judge, in the execution of his trust, to protect such right or interest as to protect the occupant’s interest in the lot itself. The act of congress authorizing a conveyance to the probate judge in trust for the use and benefit of the occupants of the lots, according to their respective rights and interests, is a grant, and carries with it everything necessary and requisite to make it operative. In order thus to convey to the occupants, their rights and easements in the streets and alleys must be protected. Therefore the grant of the lots by congress to the occupants, according to their respective interests, necessarily recognized the existence of the streets and alleys as then laid out and used, and such grant was a dedication of the same to the public use. The rights of occupants accrued before the entry of the town site 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. — 89 — And so, for the same reason, if, his plat and survey had designated ground theretofore occupied as a lot as an alley or a street, such designation would not in any manner affect the right of the occupant to his lot. All the powers of the probate judge as trustee are exhausted when he has conveyed to the occupants their lots according to their several rights and interests. This case was once before this court on different pleadings and issues, and with no finding of facts, and it was then decided that an alley could not be formed or declared by a mere description in a deed from the trustee, and this for the reason that the trustee had no authority to alter or change the streets or alleys as they existed before the entry of the town site, and that, if he did, his act was void. 2 Mont. 489. But that decision does not affect this case or the rights of the parties, wherein the issue was as to the existence of an alley before the entry of the town site, and where there are findings of fact that such an alley did exist and was used as such by the public prior to that time. The judgment is affirmed, with costs. Judgment affirmed.