215 U. S.

Argument for Defendant in Error.

monwealth, 3 Penn. & W. 253; Commonwealth v. McDonald, 16 Serg. & R. (Pa.) 390; Philadelphia v. Crump, 1 Brewst. (Pa.) 320; Philadelphia v. Friday, 6 Philadelphia, 276; Chafe v. Aiken, 35 S. E. Rep. 800; Sims v. Chattanooga, 2 Lea (Tenn.), 694; Memphis v. Lenore R. Co., 6 Coldw. (Tenn.) 412; Raht v. Southern R. Co., 50 S. W. Rep. 72; Pates v. Warrenton, 84 Virginia, 337; Taylor v. Commonwealth, 29 Gratt. (Va.) 780; Ralston v. Weston, 33 S. E. Rep. 326; Teas v. St. Albans, 17 S. E. Rep. 400; Childs v. Nelson, 33 N. W. Rep. 587; Simplot v. Chicago R. Co., 5 McCreary, 158; Grogan v. Hayward, 6 Sawy. 498; Miller v. Indianapolis, 101 Indiana, 200.

The enclosure and possession of a platted street which has been dedicated are immaterial, however long continued. Cases supra; Hall v. Breyfogle, 70 N. E. Rep. 883; Wolfe v. Sullivan, 32 N. E. Rep. 1018; Village v. Harris, 69 N. E. Rep. 230.

The possession relied upon by the defendants in error has at all times been wrongful and unlawful and they encroach upon the legal and lawful street with an occupation which deprives the plaintiff in error of his rights under the laws of Congress and he should have a mandatory injunction against them; for the appurtenant rights of the plaintiff in error are not confined to the front of his lot, but extend to that part of the street in front of adjoining lots. Dooly Block v. Salt Lake Co., 33 Pac. Rep. 229; First National Bank v. Tyson, 32 So. Rep. 144; Lahr v. Metropolitan Co., 104 N. Y. 268; Beaver v. Baltimore &c. Co., 58 Atl. Rep. 21; Dill v. Board, 10 L. R. A. 281; Healy v. Kelly, 54 Atl. Rep. 588; McLean v. Llewellyn Iron Works, 83 Pac. Rep. 1083; Tilly v. Mitchell & Lewis Co., 98 N. W. Rep. 969; Hall v. Breyfogle, 70 N. E. Rep. 883; Wolfe v. Sullivan, 32 N. E. Rep. 1018; Atlantic City v. Snee, 52 Atl. Rep. 372; Bohne v. Blankenship, 77 S. W. Rep. 919.

Mr. James H. Forney and Mr. Isham H. Smith for defendant in error submitted:

The writ of error should be dismissed. There is no Federal

question. The only question is one of boundary. Telluride Co. v. Rio Grande Ry. Co., 175 U. S. 639; Moreland v. Page, 20 How. 523; Lanfear v. Hunley, 4 Wall. 204; McDonough v. Milandon, 3 How. 693; Almonester v. Kenton, 9 How. 1; Farmers' Heirs v. Eslava, 9 How. 420; Farmers' Heirs v. Mobile, 9 How. 451.

The judgment is sustained on grounds other than Federal. Chapman Land Co. v. Bigelow, 206 U. S. 41; Rutland R. R. Co. v. Central Vermont R. R. Co., 159 U. S. 630.

The nature of the grant under the Federal townsite laws, is that of confirmation of rights in existence. No new grant is made simply the ascertainment of rights already in existence, and their certification. This is analogous to the deed of confirmation described by Blackstone. Scully v. Fix, 13 Idaho, 471; Goldberg v. Kidd, 58 N. W. Rep. 574; Pueblo v. Budd, 36 Pac. Rep. 599; Cofield v. McClelland, 16 Wall. 334; Stringfellow v. Cain, 99 U. S. 610; Town Co. v. Maris, 11 Kansas, 128-151; Rathbone v. Sterling, 25 Kansas, 444; Helena v. Albertose, 20 Pac. Rep. 817; McCloskey v. Pac. Coast Co., 160 Fed. Rep. 194.

The mayor-trustee and the surveyor were not "granting" lands to these occupants. Their rights and duties were prescribed by the law itself, and neither could by exceeding the power given him, divest property rights nor defeat vested rights. United States v. Thurber, 28 Fed. Rep. 56; Parcher v. Ashby, 1 Pac. Rep. 204; Ashby v. Hall, 119 U. S. 526; Bingham v. Walla Walla, 13 Pac. Rep. 408; Goldberg v. Kidd, 48 N. W. Rep. 574; Cofield v. McClelland, 16 Wall. 334; Treadway v. Wilder, 8 Nevada, 91; Alimany v. Petaluma, 38 California, 553; Aspen v. Rucker, 10 Colorado, 184; Town Co. v. Maris, 11 Kansas, 128; Rathbone v. Sterling, 25 Kansas, 444.

MR. JUSTICE MCKENNA delivered the opinion of the court.

The relation of the parties to the cause of action is the same in this court as in the state courts, and we will refer to plaintiff

in error as plaintiff and to the defendants in error as defendants.

The pleadings in the case are exceedingly voluminous and equally so are the findings of fact. It is enough for our purpose to say that the city of Lewiston, State of Idaho, was entered as a townsite under $2387 of the Revised Statutes, hereinafter quoted, and a patent was issued by the United States to the mayor of the city in trust for the occupants of the lands conveyed. In pursuance of the trust the mayor executed conveyances to the predecessors in title of plaintiff and defendants. The rights derived through these deeds, and the occupation of the land preceding and subsequent to them, and the effect of a survey made by one E. P. True, hereinafter referred to, and the plat thereof filed by him, constitute the questions in the case. Plaintiff seeks by this suit to enjoin defendants from encroaching on D street, as laid down on said plat, by certain buildings which, it is alleged, they proposed to erect. It is prayed, besides, that the buildings, if erected before an injunction can be obtained, be declared a public nuisance, “damaging the public and this plaintiff's private rights," and be abated. The special damage alleged is that plaintiff, having erected a building, on what he alleges to be the true boundary line of D street, will be, as it was said in the argument, "put into a hole" by the buildings of defendant projecting beyond it, and that light and air thereto, through the doors and windows of plaintiff's building, will be prevented, and the view therefrom to all parts of D street obstructed, and that "the light and air and view from all parts of the said D street as the said building [plaintiff's building] is constructed, necessarily ensue and benefit the said property materially, and are of great value to the plaintiff, and as is also the right of egress and ingress."

It is further alleged that before erecting his building plaintiff applied to the city engineer to be shown the original south line of D street according to the original survey, and the engineer ran "the lines on the ground according to the said

original survey and plat," and that plaintiff erected his building in accordance therewith, "covering the entire lot."

It is also alleged that the lots owned by defendants were conveyed by the mayor to the original owners according to the original survey, and "deeds thereto accepted according to the said original survey and plat, and said lots have since been conveyed to the defendants and their grantors according to the said original survey and plat." A dedication of the street to the public is averred as hence resulting, and an estoppel against defendants to dispute the survey and plat. The answer of the defendants, in effect, denies the correctness of the survey and plat made by True, and avers that there was an amendment of the latter which exhibited the streets and alleys according to the occupation of the respective claimants of the. lots. It is admitted, however, that some of the deeds issued were in accordance with the plat, but it is denied that all the deeds were, and averred "that the same were in accordance with the use and occupation of the lands prior to the survey, and with the said survey and plat, as the same were and had been amended.”

The findings of the trial court sustained these averments, and found further that the True survey as originally made disregarded the lines of occupation of the lots, and "ran through buildings then in the actual use and occupancy of the claimants of land and cut off approximately four feet from the north end of buildings there standing and in actual use and occupation of bona fide claimants."

A decree was passed dismissing the suit, which was affirmed by the Supreme Court. 13 Idaho, 417.

All of the parties, as we have said, derived their rights and titles under § 2387 of the Revised Statutes, providing for the reservation and sale of townsites on the public lands. That section is as follows:

'(Entry of town authorities in trust for occupants.) Whenever any portion of the public lands have been or may be settled upon and occupied as a townsite, not subject to entry

under the agricultural preëmption laws, it is lawful, in case such town 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 is situated, to enter at the proper land 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 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."

We have not recited, nor do we think that it is necessary to recite, all of the facts found by the lower courts. We may add to those which we have stated that the city of Lewiston was incorporated under the laws of the Territory of Washington, it then being within that Territory, and was reincorporated by an act of the legislature of Idaho in 1866, it then being within Idaho. The act defined the boundaries of the city. Levi Ankeny was mayor of the city in 1871, and on November 21 of that year he filed his declaratory statement No. 39 in the United States land office at Lewiston, proposing to enter the lands included within the borders of the city as incorporated, in trust for its inhabitants, claiming settlement in 1861. Cash entry was made for the lands June 6, 1874, by Henry W. Stainton, mayor, in trust for the inhabitants. "The legislature of the Territory, [we quote from the opinion of the Supreme Court of the State, 13 Idaho, p. 428] by an act approved January 8, 1873 (7th Sess. Laws, p. 16), provided for the survey, platting and disposal of the land in the city of Lewiston pursuant to the United States statutes in regard to such matters. Said act provides that the mayor-trustee shall cause to be made and filed in his office by a competent person a plat of the land within said city, divided into blocks and lots, and 'to make and deliver to the bona fide occupants of such portions of said lands described in said patent from the Government of