Murray v. City of Butte

7 Mont. 61 | Mont. | 1887

Bach, J.

This is an action of ejectment, brought by the plaintiff to recover the possession of certain real estate situated in Silver Bow County. The property sought to be recovered is comprised in the streets of the city of Butte. The defense interposed was that the defendant claimed, and claimed only, an easement,— a right of way over the property described in the complaint. Judgment was granted in favor of plaintiff. Upon the trial the plaintiff introduced in evidence a United States patent for mineral land, which includes the premises in question, also the application for patent, including the notice of location, dated April 16, 1875, and recorded April 22, 1875, and certain conveyances from the patentees to the plaintiff. Plaintiff then rested; thereupon the defendant disclaimed any title whatever to the fee-simple estate in the ground in controversy. One of the original locators of the mining claim was then called as a witness for the defendant; and counsel offered to prove by this witness that “.when the witness located this ground there were public streets and highways.” It appears from other questions that these streets and highways were those the right to the possession of which is the subject of this controversy. Upon objection the offer was refused, and exception was taken to the ruling of the court. Upon the examination of this witness,' and prior to this offer, the witness was asked if Broadway, Park, and Granite streets did not exist at the time of location of the mining claim. Upon objection, the question'was disallowed, and exception was taken to the ruling of the court.

Were these rulings of the court erroneous? We think that they were. Section 2477, Rev. Stats. U. S., reads as follows: “The right of way for the construction of highways over public lands not reserved for public uses is hereby granted.” This law is a grant to the public of an easement for the purpose therein mentioned; and it has been decided by this court that such a law is “ the highest evidence of title.” See Northern Pac. R. R. Co. v. Majors, 5 Mont. 111.

The law, then, was a grant of an easement for a public use.

The case of City of Cincinnati v. White’s Lessees, 6 Pet. 431, and 10 Curt. Dec. 179, is a leading case upon the question of dedication of land for public use. It is there held: “There is no particular form or ceremony necessary in the dedication of land to public use. All that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by the appropriation.” See also Smith v. Town of Flora, 64 Ill. 93.

The offer to prove and the question asked by defendant’s counsel, above referred to, were an attempt to prove the actual acceptance by the public of the easement granted, by proving actual user and occupation, prior to the location of the mining claim, and for the purposes included within the grant. But it is claimed by counsel for respondent that the evidence sought to be introduced was immaterial, because the appellant waived its right by failing to adverse the application of respondent for a United States patent; and respondent relies upon the cases heretofore decided by this court, known as the Smokehouse Cases, and reported in 6 Mont. 397. Those cases followed the rule announced by the Supreme Court of the United States in Deffeback v. Hawke, 115 U. S. 392, and they (as far as is herein concerned) decide that the location of a mine is the inception of a title, and that the patent, when issued, relates back to the location, and conveys to the patentee all the interest that the government had at the time of the location; and they further decide that any person seeking to derive title from the United States, the inception of whose title is subsequent to the filing of the location, must adverse the application for mineral patent. It is further decided by those cases that a grant by the United States conveys all the interest that the United States has at the time of the grant, and no greater interest. The rule in all cases is that a grantor cannot, as against his prior grantees, convey more than such grantor has at the time of the conveyance. In other words, where A grants certain property to B, B is not deprived of such property by reason of a subsequent grant from A to C. The United States in this respect differs from no other grantor; and the United States cannot, by patent, convey to any grantee a greater right than it has at the time of such grant. If the rule was otherwise, every patentee of a mining claim would have to adverse every subsequent application for a patent to the same claim, which would result in endless litigation. We think the true rule of law is, that where a person holds a valid grant from the government, he need not concern himself about any subsequent attempt by the government to convey the same property to another person; and the Smokehouse Cases, and the case of Deffeback v. Hawke, above cited, are authorities on this point. As the learned judge says in the case last cited: “ The land had then ceased to be the subject of sale by the government. It was no longer its property.” So in the case at bar. Section 2477 was a grant by the government of an easement, and defendant sought to prove an acceptance prior to the location upon which the patent was based. If such an acceptance o£ the grant of the easement could have been established, it would have been valid against the government, and therefore valid against the subsequent grantees of the government, who must take the land in question subject to any easement which was valid against the government at the time of the location.

It is further insisted upon by the respondent that the answer contains no allegation in support of which the offer and question which we have considered were competent. The grant of the easement sought to be established is a law of Congress, and need not be pleaded specially, as this court takes judicial notice thereof. As to the allegation of acceptance by the public as to Park and Main streets, the answer asserts that those streets “ have been public highways ever since the year 1866, and have ever since said date been duly and legally recognized as such, and have ever since been used by the public as such.” We think that this is a sufficient pleading of dedication, at least as to those streets.

The error is properly before this court for review. It was a material error; and the judgment, and the order denying a motion for a new trial, are reversed, and the case is remanded for new trial.

Judgment reversed.

McConnell, C. J., and McLeary, J., concur.