prepared tbe opinion for tbe court.
This is am application for a writ of mandate toi tbe judge of tbe Fourth judicial district of Montana, ex officio probate judge of Missoula county, and trustee of tbe townsite of Missoula, commanding him to execute and deliver to relator a deed to a certain piece of land, 50; by 105 feet in dimensions, situate within tbe limits of such toiwnsite as originally entered. An alternative writ was issued, and the respondent, the judge of said district court, has shown cause by answer. Tbe relator bad previously made application to respondent for a deed to said piece of land, which application bad been denied. At tbe bearing in the district court the First National Bant of Missoula filed a protest against tbe issuance of a deed to relator, controverting the material allegations of relator’s application, and claiming tbe land as its own, but made no demand for a deed. School District No. 1 of Missoula county also filed with respondent a petition requesting that tbe piece of land in question be surveyed, platted, and offered for sale at public auction for tbe benefit of such school district.
It appears from, tbe record that the townsite was entered under tbe Act of Congress approved March 2, 1861 (14 Stat. 541), as amended by Act approved July 1, 1810' (16 Stat. 183), providing, in substance, “that when., any portion of the public domain was .settled upon and occupied as a townsite it might be lawful * * * for tbe judge of tbe county couxfi for tbe county in which such townsite was situated, to enter tbe land * * * in trust for the several use and benefit of tbe occupants thereof * * ■ * the execution of which trust as to tbe disposal of the lots in such town, and tbe proceeds of tbe sale thereof to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the same might be situated.”
This townsite was surveyed and tbe official plat thereof was filed in tbe office of tbe county clerk of Missoula county on tbe
The Acts of Congress, leave it entirely to thei state and territorial legislatures where the land is, situate to prescribe the mode of procedure toi he observed in dealing with- land within townsite entries., and, if the laws, of thei state of Montana in force with respect thereto' at the time t-hei application was made for this deed required this land to he “surveyed into suitable blocks and lots,” the respondent, as such trustee, upon ascertaining that this had not been done, could goi no further. (Section 2391 Rev. St. U. S. (U. S. Comp. St. 1901, p. 1459) ; Edwards v. Tracy, 2 Mont. 49; Hershfield v. Rocky Mt. B. T. Co., 12 Mont. 102, 29 Pac. 883; Ming v. Foote, 9 Mont. 221, 23 Pac. 515; County of Amador v. Gilbert, 133 Cal. 53, 65 Pac. 130.)
The territorial law in force at the time this townsite was entered made specific provision that a survey and plat should he made, and that the townsite should he surveyed “into blocks, lots«, streets and alleys,” and that no. lot should exceed in area 4,200 square feet. Further specific provisions were made as to the manner of disposing of lots, both claimed and unclaimed;
In this connection we find an able opinion cited in respondent’s brief, written by Mr. Justice Belford, of the supreme court of Colorado, and cited in the case of Martin v. Hoff (Ariz.), 64 Pac. 448, where the court uses this language: “Some land would be found in each subdivision not actually built upon or otherwise occupied for town purposes. What, then, is to be done with this land not occupied or improved? To whom is it toi go ? Clearly, not to the general government, for its title has ceased by the issuing of the patent; not to the territory, for it never had any interest; not to; the trustee, for he is a mera conduit or channel through which, the title passed from the government to the cestui que. trust; not to the individual citizen, for the Act of Congress defines the extent of his individual interest. The trust is manifestly a double one— the first a trust for the occupants of the town as individuals; the other a trust for them collectively as a community * * * This whole matter is left to the local legislature. To it belongs the creation of the tribunal before whom individual rights shall be adjudicated. It prescribes the kind of evidence necessary to make good a claim of title. It prescribes what kind of disposition shall be made of the money arising from the sale of lots, and in fact has full and plenary power over the whole subject-matter of the trust. And to> strengthen this power conferred by congress, the law declares that any act done by the trustee, inconsistent with or in violation of the rules and regulations prescribed by the legisuature for the execution
In 1895 the legislature of the state of Montana enacted See
It is claimed by counsel for relator, in the very able brief filed, that there “is no provision of law anywhere, or in force at any time, authorizing a subsequent survey and plat to. be made.” Counsel, perhaps, have reference to the law. in force at the time this townsite was entered, for it cannot be contended that Section 5117 of the present Political Code does not give this authority; and whether the plat filed as a result of this subsequent survey is called a new plat, or the completion of the old one, is immaterial. It must be done before the trustee has jurisdiction to grant title to this land, or any part of it.
Counsel for relator further contend that “the law presumes that everything was done that was required should be done by the predecessors, of the respondent trustee with reference to the entry of the townsite of Missoula, and with reference to the
In tbe case of Ming v. Foote, supra, tbis court quotes with approved tbe following language from tbe opinion of Mr. Jusr tice Field in Smelting Company v. Kemp, 104 U. S. 640, 26 L. Ed. 815: “So, also, according to tbe doctrine in tbe cases cited, if tbe patent be issued without authority, it may be collaterally impeached' ini a court of law. This exception is subject to tbe qualification that when tbe authority depends upon the existence of particular facts, or upon, tbe performance of certain antecedent acts, and it is tbe duty of tbe land department to ascertain whether the facts exist and the acts1 have been performed, its determination is as conclusive of tbe existence of tbe authority against any collateral attack as is its determination upon any other matter properly submitted to its decision.” Tbe court then adds, as a part of the opinion in Ming v. Foote: “The authority of tbe probate judge did depend upon tbe existence of certain facts. It was bis duty to ascertain whether these facts existed1. His determination is evidenced by bis deed, and tbe same is conclusive against collateral attack.”
The respondent trustee made inquiry as to whether these antecedent acts bad been performed, and, finding no record or other evidence that tbe acts required by law bad been complied with, very properly decided that be bad no authority to issue a deed to relator.
Tbe view here taken renders it unnecessary to discuss tbe other questions raised by respondent in this case.
We are of the opinion that tbe application for a, peremptory writ of mandate should be denied.
Pee. Cueiam:. — For tbe reasons given in tbe foregoing opinion, tbe alternative writ of mandate heretofore issued in tbis cause is quashed, and tbe peremptory writ prayed for denied.