Show SUPREME COURT DECISION bain OAIN VS W YOUNG youna AND OTHERS in the supreme court ot of utah territory june juno term 1870 1873 in the matter of the tho several applications of joseph M cain catus brigham brie ham young wllliam et ali alt al for deeds to parts 0 of f lots 6 block 69 09 plat gla fia A 11 salt lake city survey appeal from third district court boreman justice delivered the opinion the contest in this proceeding is for the government title to certain lands under the townsite law of con congress gress gross th e mayor of salt lake city holds the title in trust for the persons entitled thereto under the provisions of the law the various parties to the proceeding filed their claims with the probate court asking title the heirs of joseph cain deceased prayed for title to the whole of the east halt half of lot 6 block 69 plat A ay ll 11 salt lake lahe city survey the other parties claimed fractional parts of said half lot those claims being conflicting the probate court considered all the claims together and subdivided sub divided the tho half lot amongst the parties filing on it this subdivision sub division not being satisfactory an appeal was taken to the district court in the district court a finding of facts was had hind and judgment and decree accordingly the cain heirs not cot being satisfied with the action of the district court have brought the subject by appeal to this cou court rt a motion for a new trial having leen men wen overruled tho main question involved i as to who of these claimants are occupants cu pants as contemplated by tho the town site law this statute was made for the relief of the inhabitants of towns and cities upon the public domain it was made to secure to these inhabitants who were occupants the legal title according to their respective interests to give one the right 0 to a conveyance of the government title it must appear that he is an Inhabit inhabitant antly of the town an occupant of the ground to which he seeks title and have an interest in the property the occupancy must be actual individual occupancy not an occupancy begun and held by agent merely if a person resided upon a parcel of ground or carried on his business upon the ground and claimed the whole of the parcel or let lie he might have title to the whole unless some part be occupied by y another person claiming right to the title then the question would ouid arise as t to 0 which exercised acts of ownership over the disputed ground first and to what extent and if that be settled then was the claim ever elver abandoned or given up and if so whose possession in good faith attached after the abandonment we do not think that the law of congress ever contemplated that a party could claim title to more lots or parcels than thau ho he actually individually d occupied otherwise a 11 person could gain title to an unlimited amount by not occupying it himself but by arranging with various agents that they move on to lots and hold for him and tholo thelo agents to lay jay no claim toi tol to title but let the employer claim all the employer might thus gain title to the various parcels or lots without ever being an occupant or an inhabitant and ana could prove his right by simply eis ely showing not his posses possession but ut possession by other men for him he never having been individually vidu ally aily in n possession sucha bucha proceeding would be at war with the very object of the law which was made for actual settlers and not for speculators A man havin bavin having 9 made a bonafide bo actual individual Oc occupancy either for hii his his residence or his hit business or in some way for his own use he may n no 0 dou doubt b t afterwards sell his light right of possession his preference or right to government title but ho he must first have been an occupant in good faith himself and the tho pure purchaser naser must take actual possession also and become an bocc occupant dupant there is no thing in the rule wo we lay jay down which prohibits contracts leases or sales of such interests but they can only be made to or with a inhabitants who can become occupants if the right of preference in obtaining title is to bo be effiec effected ted such sales leases and other contracts are not prohibited or discouraged r by the law nor by the policy of the law the government only says that if the contract be with one not an inhabitant and who does doeg not become an occupant such contract or sale will not be recognized in ascertaining to whom the title should be granted A party in possession of any such city or town lot will be presumed to be so 80 in possession in his own right and for his own use and benefit until the contrary appears and the possession of the ancestor when dying is the possession of the heir unless the contrary appears these are some of the principles which will control us in the examination of the merits and rights involved in the proceeding at b bar ar when salt lake city was first settled the place was laid the laying out dictated by brigham Y young oung willard richards and others yet Brigha brigham young mYoung claimed to have exclusive control in making the settlement shortly after the first settlers came and the town was laid out certain parties arties artles among whom was willara willard richards were allowed to select portions of the city each portion composed of a number of lots or blocks all in a body in order to distribute the lots to those whom they desired to have havo near them it appears that lot 6 block 69 was among the lots selected by willard richards under this arrangement ho he turned the east half of the tile lot over to joseph cain and marked the boundary between tho east and west half he gave cain possession of a house situated on the north half of this east half and he had the public records made to show that this east half was the property of cain and there is evidence going to show that cain bought and paid for the half lot cain calu moved upon the lot and lived there until his death he exercised exe raised acts of ownership over the half lot and it was assessed in his name and he be paid taxes on tile the same until his death and being so iu in possession the current of tha the evidence is that he claimed the whole of the same to the boundaries of the half lot on every side and that his possession and aud ownership of possession were recognized by williard SV illiard richards and the public 11 c generally and the heirs of VII vil lard richards claim nothing now in this proceeding not having appealed seeds caled but they have made two deeds for portions of the disputed kartsone part parts sone one to brigham young and one ono to william Jenning jennings Sj the effect of which will be considered hereafter at the death of joseph cain he was in the undisputed possession of all of said half lot jot although mrs ogden was living jiving on the lot but she claimed no ownership ship of at the possession and moved off shortly after cains caina death the appellants claim that in the findings of fact by ky the district court there has been a failure to find that brigham young wm jennings samuel stringfellow george stringfellow and Hl nicholas bicholas cholas grosbeck cr or either of them ever have been inhabitants of salt lake city or of utah territory thelah the law as we have baat ed requires that the persons claiming must to entitle them to deeds be inhabitants 11 inhabiting was an essential fact and should have been found the appellants further farther claim that there was v a failure to find that young jennings String fellows or groesbeck were in possession at the date of the entry the law requires that the parties or perhaps those under whom they claim should have been in possession at the tho date of the entry by the mayor it was therefore an essential fact and the failure to find thereon was an error the appellants the heirs of joseph cain take exceptions to the fi findings adlus adins of fact made by the district court and allege that the material findings to which they object as erroneous areas follows I 1 it Is found that if said eaid joseph cain calin ever occupied or claimed the right of possession of any portion of the north half of the east hair half ef of said lot after removed he moved into the new house honse his heirs and representatives senta tives soon after his decease surrendered and gave up such Dos session 11 II 11 it Is found that portions of the south half of the east half of said lot formerly in the possession ef of the heirs of joseph cain have been sold and the possession delivered to the persons named in the judgment and aud decree of the court with they description which each was now in possession of and entitled to III it Is found that the north half of the east cast half of said lot has been subdivided and the occupancy possession a and nd right of possession haTe been in various persons and that the persons named in the judgment and decree of the court are in possession and entitled to the possession of the several particular descriptions of land given in connection with their names the first of these points the alleged surrender of possession of the north half of the east cast half of said lot by bv the heirs of joeeph joseph cain cam after joseph cains death we consider Is well taken for we are aro unable to discover facts wah t v warrant the finding certainly wm nurie e EO so far as the children of cain are concerned they have never done anything that would indicate that tha t they cave ewe up or surrendered any r nights rights phe the lits which they have to such north half the widow did not control this por tion of the ground although joseph cain had possession of it when ho died she said eald that brigham young claimed it and she did not question for foria forin in those days no one questioned what their leaders did but as she says she would have hate taig taken the word of the leaders in those days as readily as she ehe would an angel 9 such implicit confidence and faith in him was simply abused by brigham young and be he used it to take away from this widow and her infant children property to which he did not have a shadow of a r night right I 1 the finding therefore of a surrender of eald said north half wo we deem as erroneous the second of these material findings to which exception is taken has reference to a sale which it alleges took place of portions of the south half which had prior thereto been in possession of the heirs of cain one would naturally conclude from the reading of this finding that the heirs had sold lold such portions as aro arc referred to or at least were parties to some sale nothing of the kind appears however from the evidence the parties referred to as having been the purchasers of parcels of said south half were nicholas groesbeck and the stringfellow brothers groes becks becka portion Is very small being only sixteen 16 inches fronting on east temple street and running back west nine rods not a solitary witness was introduced to support Groes becks claim nor any written or oral testimony and there is an absolute want of any evidence on the point except an incidental reference thereto in mrs cains testimony slie she saying th that at she sold a strip of as she thought that width to mr groesbeck even then there Is nothing in the evidence to show where this sixteen inches was or how long the strip was or that she ever delivered the possession of it tolar to mr or whether groesbeck eter ever was in possession nor is there anything to show that aby aay interest of the children was intended to be conveyed nor indeed is there anything to show whether she eho sold as an in vidu alor alon or administratrix oras oraa or as guardian although as it Is mentioned in connect connection jor lor with the sale to the stringfellow brothers it might be inferred to have been a sala eala as administratrix butuson but upon this inference wo we could not depend there is therefore no proof to support M mr r groeb Groes becks claim and it must fail fall the stringfellow brothers have allotted to them on the north of and adjoining the parcel allotted to groesbeck a parcel of or ground fronting east Temple tempie main Maln street sixteen feet and three inches runn running i ng back west eight rods with the road privilege V on the west the road lego iego was merely a written consent given by S W richards rich EIch ards and elizabeth cain as individuals and without consideration and of course was subject 1 to revocation at any time even it S richards WR 1 ichards and elizabeth cain had the right to make it the stringfellow brothers claim their parcel of ground not including the roadway road way under a sale and deed from S W richards and elizabeth cain administrators of joseph cain deceased made in pursuance of an order of the probate court administration of tho the the estate of joseph cain cam deceased which was taken out more than ten years arter after lils death such ie la the verbal proof and there ts Is no other kind of proof that any ad adala ala mla stratton was ever taken out S W richards and elizabeth cain claiming to be administrators filed their petition peli peti tiou in eulo the V bat court C t on soa SOT jtb isu ISM praying fon for an order orden r den der to sell real estate upon the er ground on n that ha t the estate was at that date involved in consequence of cy ey to erect buildings thereon upon which interest is being paid and also I 1 in 11 consequence oj 0 taxes accumulating while rents have been rapidly declining by which the obligations and expenses of the estate have to be maintained there is no evidence that when administration was taken out any debts or other obligations of the de ased remained unpaid but buts on the contrary the administrator richards testifies that no such claims were ever evec presented to him and that he believed they were all paid out of the personal effects of the deceased iong long before application was made to sell the real estate and that the sale r T as made to raise money for support of the family to pay for improvement improvements taxes that of all this indebtedness accrued from three to ten years after cains death and mrs cain says that the sale was not made mado to pay debts by joseph cain deceased what interest then passed bv such sale and the conveyance the probate court is an au interior inferior court one of limited jurisdiction it has n no power not given to it by statute our oar territorial statute utah laws 1853 1852 p i 4 1 I s 16 says that personal and real property may both be sold upon the order of court but it does not authorize the real estate to be sold except to pay debts and then only when the personal property is ing ins to pay the charges against the estate these facts must appear affirmatively firmat ively the parties to this proceeding ad and also the administrators treated these tze tye possessory 0 rights as real estate and we must conclude con ciuda cluda the tha statute likewise treated them as real estate as the statute speaks of real estate and none existed if these rights bo be not such for they were tho the highest interest that an individual could have tn land when the statute was passed and jt Is not to be presumed that the statute was not meant to apply to them but apply only to something that d did d not then exist whether they are strictly real estate or not as understood at common law we are inclined to hold ohp that at the tho laws of those early dates intended them to be treated as real estate but whether we deem such possessory rights as real estate or as personal property we are unable to see how such property could bo be sold eold under the law referred to concerning decedents dece dents estates if it iras tras personal property it was not claimed to be of a perishable nature mature or likely to depreciate in vaine taine 11 bat it may be said sold that although this property was not perishable or liable to depreciate and |