City of Helena v. Albertose , 8 Mont. 499 ( 1889 )

Bach, J.

—The errors of law claimed to have been made by the trial judge in admitting certain testimony against the objection of appellant must be disallowed.

There are two such errors. The first is as follows: The defendant offered in evidence a certain deed, to which counsel for plaintiff objected as follows: “I object to its introduction.” The second error is based upon an objection which was as follows : “ I object to the testimony as incompetent.” In order that objections to testimony may avail a party on appeal they must state specifically the grounds of objection, and to say that “testimony is incompetent,” is not a good objection. The reasons which make such testimony incompetent must be given. (See Sneed v. Osborn, 25 Cal. 63 9, and cases cited.) There are exceptions to this general rule, but they do not apply to this case, and therefore need not be mentioned. The plaintiff, however, loses nothing by this summary disposition of his objections, for if our view of the case is correct, plaintiff was not prejudiced by the ruling of the court already referred to.

This is an action of ejectment. The plaintiff bases its right to recover upon title to the premises; it must therefore show title, or it must fail in this action. (Talbert v. Hopper, 42 Cal. 398-402; Treadway v. Wilder, 8 Nev. 91—99.)

Plaintiff has been so earnest in its attempt to demonstrate that the defendants have no title upon which to defend, that it has entirely forgotten its own title, except in so far as its title is based upon dedication.

The laws governing the case are sections 2387 and 2391 of the United States Revised Statutes (Act of Congress, March 2, 1867), and sections 1207, 1208, 1209, 1210, and 1211 of the Revised Statutes of Montana, pages 665 and 666, which laws are as follows:—

Sec. 2387. (U. S. Laws.) “ Whenever any portion of the public lands has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the agricultural pre-emption laws, it shall be lawful, in case such town shall 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 may be situated, to enter at the proper laud 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 sale thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the State or Territory in which the same may be situated.”

Sec. 2391. “ Any act of the trustees not made in eomformity with the regulations alluded to in section 2387 shall be void.”

Statutes of Montana (Rev. Stats.) as follows: —

Sec. 1207. “ And the said incorporate authorities or the judge of the Probate Court, as the case may be, shall within three months from and after the entry of such town site, unless a survey and accurate plat thereof has previously been made, cause the same to be surveyed and a plat thereof made, which said survey and plat thereof shall conform as near as may be to the existing rights, interests, and claims of the occupants thereof. Said plat and survey shall be submitted to and accepted by the board of county commissioners in the county where the said town is situated.”

Sec. 1208. “ Such town site shall be surveyed into blocks, lots, streets, and alleys, but no lot shall exceed in area four thousand two hundred square feet; and the plat of such town site shall be filed in the office of the county recorder for the county in which such town is situated, and thereafter the streets and alleys designated in such plat shall remain dedicated to public use forever.”

Section 1209 provides the manner of giving notice to occupants to file a statement of their claims within two months from the first publication of such notice. Section 1210 provides what shall be contained in such statement. And section 1211 provides as follows: “ All claimants of any lot or lots in any town site pre-empted under the provisions of this chapter, shall, within six months from and after the expiration of the notice mentioned and provided for in section 1209 of this chapter, make proof of such claim and of the facts contained in such statement before the corporate authorities aforesaid or the probate judge, as the case may be, and pay the price hereinafter fixed upon such lot or lots; and .no proof shall be permitted to be made after the expiration of the time prescribed in this section.”

These laws properly applied to the facts in this case give the following result: When the patent was issued to the probate judge he became a trustee of the lands included in said patent, holding the same in trust for the use and benefit of the occupants thereof; which trust must be executed by him in accordance with the laws of the United States creating such trusts, and with the rules and regulations provided by the territorial laws not in conflict with the laws of the United States; which rules or regulations might guide the mode or manner of executing the trust, but could not substitute one cestui que trust for another. In other words, neither the laws of this Territory nor the act of the probate judge could deprive any person of the land occupied by him at the time when the probate judge made entry for the town site, and give such land to one who was not an occupant thereof. And any attempt so to do would be null and void. Undoubtedly the laws of this Territory providing for a map, and the act of the probate judge in accordance therewith, were valid and not in conflict with the laws of the United States, when such map designated and established as streets those portions of the town site which had theretofore been used by the public as streets; but when the probate judge undertook to establish by that map a street over lands actually occupied by individuals as a residence when "the .entry was made by the probate judge, his act was in conflict with the proper execution of his trust, which was. to convey the lands to occupants when there were occupants, and'not to others; and the public had no right as against such an occupant. The act of the probate judge, therefore, was void, at least so far as it attempted to deprive occupants of their interests in lands occupied by them, and such act could give to the public no title to the premises against the will of the true occupants. The record does not show at what time the map was filed, or whether or not it was approved by the proper authorities; but this would make little difference as to the result. Upon the foregoing propositions, see Ashby v. Hall, 119 U. S. 526, and 2 Mont. 489; Bingham v. City of Walla Walla, 3 Wash. 68; Winfield Town Co. v. Maris, 11 Kan. 128; Edwards v. Tracy, 2 Mont. 49.

In Rathbone v. Sterling, 25 Kan. 444, the commissioners had awarded to the plaintiff the right to procure, a deed from the probate judge, which deed had been accordingly delivered to him. The defendant, however, insisted that such deed was null and void, because plaintiff was not an occupant of the premises at the time the entry was made for patent, while on the other hand he, the defendant, was such an occupant.

The court held that the deed was void, and affirmed the judgment of the court below in favor of the defendant.

In Nevada a statute provided that if the occupant did not apply for a deed within the time fixed by law, he should be forever barred the right of claiming such lands, or any part thereof, in any court or law or equity.

In Treadwell v. Wilder, 8 Nev. 92, the trustee of the town site gave to plaintiff a deed of the premises which were the subject of the action; plaintiff was not an occupant at the time of the entry of the town site; defendant was an occupant, but failed to file his claim within the time allowed by law. It was held that the act of the trustee was void, and that such a deed would not sustain an action of ejectment against the defendant.

The court say: “ If, then, respondent was neither an occupant nor had the right of occupancy, he was not entitled to receive a deed from the trustee, and the same was void and of no effect. .... This the appellant would have the right to prove, though not to put title in himself as the real occupant entitled to the deed of the trustee, for he is barred by, etc.....But although so barred, the proof would be competent to show that respondent has no title, in which case he must fail of recovery for the land described in the trustee’s deed, as that must be had, not upon the weakness of appellant’s, but on the strength of his own title.”

The only question remaining is, “ has there been a dedication t.o the public use?” We think not. There must be some act of the owner, either direct or by implication, to create a dedication of property to the use of the public.

The public cannot make the dedication complete by the mere filing of-a map. The record shows a continued occupancy by the defendants of these premises in opposition to the claim of the public; there has been no user by the public from which the assent of the owners could be implied; no deed of the premises has ever been made by the owners, in which deed the street has been recognized as a boundary line, nor has any such deed ever been accepted by them.

The order appealed from is affirmed with costs.

Judgment affirmed.

De Wolfe, J., and Liddell, J., concur.