113 P. 286 | Mont. | 1910
delivered the opinion of the court.
Appeals from a decree in favor of defendant and from an order denying plaintiff’s motion for a new trial.
This cause was submitted to the court without pleadings under an agreed statement of facts, in pursuance of the provisions of sections 7254^7256, Revised Codes, the purpose of the parties being to obtain a decree quieting the title to lots 1 and 26 in block A in Tracy’s addition to the city of Bozeman, Gallatin county, in plaintiff, or adjudging that the public has acquired a prescriptive right to the use of them as a portion of a public highway, according to the court’s view of the law or principles of equity as applied to the admitted facts. It is expressly stipulated that each party claims, as against the other, the benefit of any rule of law applicable, including the statute of limitations, or- any matter of estoppel or former adjudication
United States to land, including that covered by the Tracy addition to the city of Bozeman, a portion of which is shown upon the plat, and adjoins the townsite of Bozeman on the west. Iiis settlement had been made thereon in 1864. The original plat of the townsite was put upon record on April 11,1870. The plat of the Tracy addition was recorded November 22, 1872. Some time in 1869 one Achilles Lamme, being in possession of the land now occupied by the building fronting south on Main street and designated as the National Bank of Gallatin Valley, inclosed it with a fence, the east line of which extended north from Main street near to and to the east of the line between what subsequently turned out to be lots 1 and 2 of block A in the Tracy addition. This remained there, leaving nearly the whole area of lot 1 in Tracy avenue, until 1895. The fence was then removed because of the erection of the building referred to. In 1875 Tracy sued Lamme in the district court of Gallatin county to settle the title to the portion of lot 1 inclosed by the latter. The action resulted in favor of the latter ip 1879,
It is expressly agreed that, during all the years since 1864 until the submission of this cause, all that portion of lot 1 to the east of the fence erected by Lamme had been used continuously, exclusively and uninterruptedly by the public as a highway, and that during all the years from 1870, all that portion of lot 26 east of the line of fence erected by Tracy had been used in like manner, with the exception of the interruptions above noted. In 1891 a four-inch water main was laid by the city on Tracy avenue, as indicated on the plat. In 1901 a six-inch sewer main was constructed on Main and Mendenhall streets
The parties have submitted the controversy upon the theory that title to the portions of the lots lying west of the line of the old fence must be determined upon the same facts as that of the portions lying east of this line, the plaintiff’s position being that if he cannot have title quieted in him as to the latter, neither can he as to the former. It is not important to inquire why he has assumed this position. It is doubtless due to the conviction that the portions west of the fence have been lost to
Under his deed from Tracy, in March, 1880, the plaintiff became vested with such title as Tracy had, and for present purposes it may be assumed that the judgment recovered by the plaintiff against the sheriff of Gallatin county, on May 2, 1881, definitely adjudicated the question of title in his favor. During the same month, however, we find the board of county commissioners asserting the right of control by causing the arrest of the plaintiff and his employees for obstructing the disputed area of lot 1; and in the following September we find it making the declaration that both of the areas had been used1 as a part of the highway ever since 1864. This was the last definite act of hostility between the parties, until 1902, when the plaintiff attempted to take possession by erecting an inclosure, and was summarily stopped by the authorities of the city, which, in 1883, had become the successor of the board of county commissioners in the control of the streets. During the years intervening, until the submission of this cause, this was the only positive assertion by plaintiff of his title. For twenty-seven years the property constituted a part of the street, and was continuously and uninterruptedly used as a public highway. It was also held adversely under claim of right, because, disregarding the attitude of the board of county commissioners toward it prior to September, 1881, it then asserted the right to its use as a highway, by refusing to pay the plaintiff for it, and by formal declaration that this right had been established by prescription. This amounted to a definite assertion by the public authorities of a right to the use. Therefore, if what had theretofore been done by the board of county commissioners be regarded as
The facts bring this case clearly within the rule recognized generally—that a public highway may be established by prescription, without color of title, by proof of travel over it by the public, as a public highway, for the statutory period. (State v. Auchard, 22 Mont. 14, 55 Pac. 361; Montana Ore Pur. Co. v. Butte & Boston C. & S. Co., 25 Mont. 427, 65 Pac. 420; Pope v. Alexander, 36 Mont. 82, 92 Pac. 203, 565; New Haven v. New York etc. R. Co., 72 Conn. 225, 44 Atl. 31; Campau v. City of Detroit, 104 Mich. 560, 62 N. W. 718; Elliott on Roads and Streets, sec. 174; 28 Cyc. 835.) The presumption which would otherwise prevail—that the use by the public has, during all the years since 1881, been in subordination to the legal title vested in plaintiff by his deed from Tracy (Rev. Codes, sec. 6435)—is entirely overcome.
The negotiations had with the'city from time to time were not effective to prevent the running of the statute, because the city
But the plaintiff contends that the receipt by defendant of taxes from year to year was an admission of his right which it is now estopped to deny, or, in any event, that this conduct on its part, together with the other facts admitted, demonstrate that no right to the use of his property has been acquired by prescription. Under the provisions of the statute applicable (Laws 12th Terr. Legislative Assembly, p. 13, secs. 58, 59; Comp. Stats. 1887, Div. 5, secs. 378, 379; Pol. Code 1895, secs. 4862, 4870), the basis of taxation for a city or town has been the valuation made by the county assessor for state and county purposes. The city or town council has had no authority to amend or change the items listed in the roll furnished by him, its office being merely to ascertain the rate of taxation necessary to produce the amount required to meet the expenses of the city or town government, and to certify it to the county treasurer. The duty of collection has thus always been imposed upon this officer for all cities except those of the first class. Under section 4870 of the Political Code of 1895, the city might by ordinance cast this duty upon its own treasurer, but this the defendant never did. Thus it
If the inquiry were whether the plaintiff had dedicated the lots to the use of the public, the payment of taxes by him from year to year would be potent to rebut the conclusion that he had; but the fact that they were paid by the county treasurer and accepted from him by the city treasurer, and expended to maintain the city government, cannot.be construed into such an admission of title in plaintiff as to preclude the defendant from asserting the rights of the public. These officers had no more power than the assessor to admit away these rights.
The decree and order are affirmed.
Affirmed.