64 P. 445 | Ariz. | 1901
George Martin filed his petition in the district court of Pima County asking for a writ of mandamus directed to Gust. A. Hoff, mayor of the city of Tucson, trustee. The petition, summarized, is as follows: That Martin is a citizen of the United States, and a resident of Tucson, Arizona, and has been for ten years last past; that Gust. A. Hoff resides in said city, and is mayor thereof; that on the 1st of July, 1874, sections 12 and 13, in township 14 south, range 13 east, Gila and Salt River meridian, were granted and conveyed by the United States of America to Sidney R. De Long, mayor of the then village, now city, of Tucson, to him and his successors, in trust for the several use and benefit of the occupants thereof according to their respective interests, the same, being in pursuance of the act of Congress (chap. 8, tit. 32, Rev. Stats. U. S.); that Hoff, as mayor, is successor in trusty and holder of the legal title to the undisposed-of lands contained in said conveyance; that the legislature of Arizona, on the 10th of March, 1887, passed an act in relation to town-sites, being title 9, chapter 2, Revised Statutes of Arizona; that it is made the duty of Hoff, as successor to De Long and trustee, to execute deeds of conveyance of lots in said town-site to the occupants who have complied with the provisions of the said statutes and who
The only error assigned relates to the order sustaining the demurrer and the judgment dismissing the petition. The petitioner seeks to obtain title to the lot in question by virtue of the acts of Congress and an act of the territorial legislature. Title 9, chapter 2, of the Revised Statutes of Arizona (par. 167) provides: “Whenever the citizens of any town located or that may be hereafter located upon the public lands of the United States, if the inhabitants of such town shall be incorporated, it shall be the duty of the corporate authorities thereof ... to enter so much of the land under the act of Congress entitled ‘An act for the relief of the inhabitants of cities and towns upon the public land,’ approved March 2, 1867, to which the town is entitled, as is necessary for its purposes. ’ ’ Paragraph 188 of said act provides: “The lots undisposed of as aforesaid, the title, to which remains in the trustee, shall be subject to entry and purchase from the trustee at the rate of ten dollars per lot.” Paragraph 191 of said act provides that, whenever the term of office of the officer making such entry of a town-site has expired, he shall turn over to his successor in office all books, papers, moneys, accounts, etc., and thereafter such trust shall be discharged in every particular by such successor in office. It is contended by respondent that said act has no application to entries made prior to 1887, and that, as it appears from the petition the entry of the Tucson town-site was made long before its passage, the petitioner cannot obtain title to his lot under such act. Some argument has surrounded the terms “located or that may be hereafter located,” in which the petitioner insists that the word “located” has reference to all town-sites established before the passage of the act. In our judgment, the word “located” is not the pivotal term, but. that the word “enter” is the term which must determine to what lands the provisions of the act are applicable. The plain reading of the act is that some officer must, after the passage of the act, enter in the land office a town-site, whether
The act of Congress of March 2, 1867, (sec. 2387, Rev. Stats. U. S.,) under which the town-site of Tucson was entered, provides that certain officers are permitted “to enter at the proper land office, 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 trusts, 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.” Section 3 of chapter 89 (Feb. 16, 1871) of the Compiled Laws of Arizona, in force at the time when said entry was made, or at least when said patent deed was executed, provides that it shall be the duty of the party entering such town-site “to convey the same to the occupants and inhabitants thereof, according to their respective interests, in the manner hereinafter prescribed.” We think it has been fully settled by the supreme court of the United States that, so far as the. act of Congress itself is concerned, the trustee had no powers except to execute deeds to the parties in occupancy and possession and entitled to possession at the time of the entry of the. land in the land office by the proper authorities. The case of Cofield v. McClelland, 16 Wall. 331, 21 L. Ed. 339, arose under the construction of the act of Congress passed May 23, 1844, in relation to town-sites, and the act of Congress passed May 28, 1864, for the. relief of the citizens of Denver. Each of those acts contained substantially the provisions of the act of March 2, 1867, providing that the entry by the proper officers shall be “in trust for the several use and benefit of the occupants thereof, according to their respective interests.” The territory of Colorado, March 11, 1864, provided for the conveyance of the lots to the person or persons who shall have possession or be entitled to possession or occupancy thereof, according to his, her, or their respective rights or interests in the same as they existed in law or equity at the time of the entry of such lands, or to his, her, or their heirs or assigns; and the supreme court
Sloan, J., and Doan, J., concur.