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law, the plaintiff now has any interest in the | Salt Lake City "in trust for the public use" strip of ground or alley in question under in legal effect (not having been accepted nor the practically admitted facts and circumstances surrounding the conveyance from John F. Heath in 1889 to William J. Lemp of the nine by ten rods now owned and occupied by the plaintiff as business property. To determine this question due consideration must be given to the principles of law involved, and then ascertain whether, under the facts and circumstances as disclosed by the evidence, a valid dedication of the strip of land was made by the predecessor in interest of the parties to this action.

[1] Dedication may be express or implied, but it is fundamental, always, that there must be an intention to dedicate the animus dedicandi. The intention to dedicate is made manifest, in practically all cases, by the open acts and conduct of the owner of the land. Moreover, some form of acceptance within a reasonable time must be manifest. These doctrines are best stated in the wellrecognized authority of Elliott on Roads and Streets, as follows:

acted upon by the grantee or the public) constituted nothing more than an offer on the part of the grantor of the premises therein described, including the strip in question, for alleyway purposes for public use. It is conclusively shown by the record that no formal acceptance, as required by the statutes, was ever made by Salt Lake City, and the record is equally conclusive that no public or private use was ever made, or attempted to be made, by any persons whomsoever, of the strip of ground now contended for by the plaintiff, until the attempt made by plaintiff immediately preceding the commencement of this action. It must therefore be conceded that when the plaintiff's predecessor in interest, William J. Lemp, subsequent to the deed made by Heath to Salt Lake City, took a conveyance of the nine by ten rods abutting on the strip in question he took it charged with notice that the offer thus made by his grantor, James F. Heath, to Salt Lake City, of the strip in

if not formally, at least by implication, on the part of Salt Lake City or the public to be devoted to the uses made manifest by the deed itself-that it was for public use. The plaintiff may not be heard to say, conceding for the purpose of discussion only, that if the recording of the Heath deed was notice of the grantor's intention to devote his land to the public for use as streets and alleys, that it was not notice that the same should within a reasonable time, be, in some form, accepted for such uses. Further, we think the plaintiff's predecessor William J. Lemp was charged with notice that unless the offer thus made by Heath to Salt Lake City was accepted within a reasonable time, Heath, or his grantees, would have the legal right to revoke the conveyance made to Salt Lake City, in trust, for the public use. This Heath did by a conveyance of the strip in question to Barrette, a predecessor of the defendant, in 1909; and a further act of revocation, it cannot be gainsaid, was had and made effective by the suit instituted against Salt Lake City, as trustee, in 1911, by P. J. Moran, the immediate grantor of the defendant,

"One of the principal things to be established by a party who claims a way by virtue of a ded-question, was contingent upon acceptance, ication is, as we have seen, the intent to dedicate, the animus dedicandi. In all cases, as we have more than once said, the intention must be satisfactorily shown. It is not necessary, as is sometimes said, that the evidence upon this point should be conclusive; it is enough if the intention be proved by evidence of a satisfactory character. The intention to dedicate must be clear and unequivocal, and this the evidence must show, but the evidence need not be of a different probative force from that required in other cases involving the title to land, although it is frequently said that the evidence itself must be unequivocal and convincing. The character of the intention essential to create a dedication is one thing, that of the evidence required to establish it is another. No particular class of evidence is required, for the intention may sometimes be established by proving the express contract, or language of the donor, or it may be inferred from his conduct. The intention to dedicate is to be gathered from the conduct of the owner of the soil considered in connection with the surrounding circumstances, rather than from what he subsequently testifies his intent was, though there are cases in which it is competent for him to testify as to his original intention. The question is, of course, as to the intention existing at the time the acts relied on as constituting a dedication were done, for the subsequent intention of the owner is not material." Section 173 (3d Ed.). As to the necessity of acceptance, and that acceptance must usually be within a reasonable time, the same authority lays down the

doctrine:

"The general rule is that an acceptance must be made within a reasonable time after the dedication, and unless made within a reasonable time the owner may recall the dedication. What is a reasonable time must depend on the circumstances of the particular case, and no general rule can be laid down which will apply in every case. Ordinarily, the question whether an act has or has not been within a reasonable time is a question of fact, and there is no reason why this general principle should not apply to dedications." Section 172 (3d Ed.).

[2-4] There can be no question that the

wherein it was decreed that the title of P.

J. Moran was quieted as against all claims of Salt Lake City. But it is contended by the plaintiff that the strip of ground in question was marked upon the ground by a fence when William J. Lemp, the predecessor of plaintiff, purchased the ground abutting thereon, that a higher price was paid therefor than otherwise would have been paid and that thereby the defendant is estopped from denying the property rights claimed by plaintiff in the alley abutting on its premises. Plaintiff insists that this contention is sustained both in sound reason and on

And then again:

Quoting from Story v. New York Elevated R. R. Co., supra, the court say:

"The official survey-its filing in a public of

fice-the conveyance by deed referring to that survey and containing a covenant for the construction of the street and its maintenance, make as to him and the lot purchased a dedication of it to the use for which it was constructed. The value of the lot was enhanced thereby, and it is to be presumed that the grantee paid, and the grantor received an enlarged price by reason of this added value." (Italics ours.)

its brief from the following authorities: 14! Cyc. 1176; Sowadzki v. Salt Lake County, "If the owner throws open a way to the pub36 Utah, 127, 104 Pac. 111; Elliott, Roads lic and so conducts himself as to evidence a and Streets (2d Ed.) 134 (note) 137; Story well-founded and reasonable belief that he has a correct knowledge of the facts, and that, havv. Elevated Railway Co., 90 N. Y. 145, ing the knowledge, he intended to dedicate the 146, 43 Am. Rep. 146; Bissell v. N. Y. C., way to a public use, he will be held to have 23 N. Y. 61; Prescott v. Edwards, 117 Cal. made a dedication in case it appears that oth298, 49 Pac. 178, 59 Am. St. Rep. 186; Schet- faith and without negligence have acquired ers influenced by his conduct and acting in good tler v. Lynch, 23 Utah, 305, 64 Pac. 955. rights in the belief that a dedication had been [5] After a careful review of the forego-made, even though it should afterwards turn out ing authorities we are convinced that the that the owner acted under a mistake." (Italics ours.) doctrines therein announced and contended for by plaintiff's counsel do not apply where the facts and circumstances are as disclosed by the record here. As heretofore pointed out the deed made by Heath to Lemp in 1889 conveys a parcel of land, the description of which was made by metes and bounds without any reference to lots, alleys, or streets, and without any reference to any map or plan. Further, the record before us does not disclose that in the negotiations leading up to and at the time of the bargaining, sale and conveyance of the premAs to Bissell v. N. Y. Cent. R. R. Co., suises from Heath to Lemp, any mention pra: In that case the conveyance was made whatever was made of the alley in question, and the property described with reference or that Lemp contemplated at any time to lot numbers, with the further addition to the acquirement of any rights in the alley, the description: or that he paid a higher price for the premises than he would otherwise have paid therefor, or that he even had knowledge that Heath had tendered, by deed, the strip of ground to Salt Lake City, for the use of the public, and had the same recorded on the records of Salt Lake County; but assuming that he had such knowledge, then as we have heretofore pointed out, he stood charged with notice that if the city, or the public, within a seasonable time, did not, in some form, accept the offer made by Heath of an alley intended for public use, that, there after, said offer would be revocable on the part of Heath.

The test quoted by plaintiff from 14 Cyc. 1176, states the general rule to be that:

"Where the owner of a tract of land lays it out in streets and lots delineated in a map or plan and sells lots bounded by such streets which are referred to in deeds of conveyance as boundaries, the legal effect of the grants is to convey to the grantees the right of way over the streets respectively as laid out." (Italics ours.)

"Reference being had to the allotment and ours.) survey made by Elisha Johnson." (Italics

In Prescott v. Edwards, supra, it was there held and commented upon:

"This land was platted upon the ground. The plat was as perfect and probably more satisfactory than though pictured upon paper. To be sure, the blocks were not numbered and the streets were not named, as would probably have been the fact if the plat had been transferred to paper. But we do not see that either numbers or names are essential. Again, by the deeds the lands were described by metes and bounds, and no reference is found therein to any street, but at the time of sale the defendant pointed out these strips of land as streets, and the land sold bordered on such strips." (Italics ours.)

Then again in that case the court expressly found, as facts, the following:

"Plaintiff's predecessors would not have purchased these tracts if the representations had not been made by defendant that these strips of land were streets. ** * The owner declared to the purchasers that the parcels were streets. the purchasers acted upon such declaration, and as to such purchasers those parcels are streets.” (Italics ours.)

The foregoing text was quoted approvingly We think the case at bar is lacking in the by this court in Sowadzki v. Salt Lake Coun- many essentials we have italicized in quotty, supra, but in that case the question pre- ing from the authorities cited by plaintiff. sented here was not involved nor passed At most the deed made by Heath in 1889 upon, and the court expressly refrained from expressing an opinion as to the rights of private parties upon an abandoned street dedicated for public use by the landowner and thereafter abandoned by the public.

In the text cited by plaintiff from Elliott on Roads and Streets, supra, the doctrine is announced that:

"Expressed dedication by plat or otherwise becomes an irrevocable grant when third parties

to Salt Lake City, without any compliance with statutory requirements, and without acceptance in any form on the part of the city, constituted nothing more than an offer on the part of Heath to dedicate the land therein described to the use of the general public for alleyway purposes. For over 20 years no acceptance on the part of the city, in any form, was made, no recognition was given of the offer made, either on the

to complete the dedication, and meanwhile | 3. TAXATION
the plaintiff as well as the defendant treat-
ed the strip now contended for by the plain-
tiff as the exclusive property of the defend-

ant.

The intention of the defendant and its predecessors in interest not to incumber the strip in question by right of way for private use or ownership was made manifest by the acts and conduct of the defendant and its predecessors in interest in retaining exclusive private control and use of the strip, by maintaining it closed at the south end, and by exercising exclusive dominion over it, by conveying the adjoining land to the plaintiff by metes and bounds without reference to alleys, by the conveyance of the strip itself to the predecessor of the defendant as a part and parcel of other lands, and by suit against Salt Lake City, as trustee, to quiet its title. These acts, and the recognition of private ownership in the defendant by the plaintiff itself, as disclosed by the record, in our opinion, amply sustain the trial court in finding the issues as to ownership of the strip in favor of the defendant. Since, for the reasons we have assigned, the judgment of the trial court must be affirmed, we do not deem it necessary or important to discuss or decide the other questions raised by the assignments of error made by either party. The vital issue to be determined between the parties being the ownership and right to the use of the land respectively claimed by them, and this issue having been rightfully determined by the trial court in favor of the defendant, the other questions involved on the appeal become immaterial.

It is therefore ordered that the judgment of the district court be affirmed. Respondent to recover costs.

142-FRANCHISE PROPERTY.

Laws

Const. art. 12, § 1, provides that all propand quasi public property as is specially exempterty is subject to taxation, except such public ed and such other property as may be exempt by law. Section 7 provides that the power to tax corporations or corporate property shall never be relinquished, and every corporation in this state or doing business herein shall be subject to taxation on all real or personal property owned or used by it, unless it belongs to a class of property which is exempt. Section 16 requires all property shall be assessed in the manner prescribed by statute or by the Constitution. Section 17 defines property to include moneys, credits, bonds, stocks, franchises, etc. 1891, p. 83, § 26, provides that the personal property of express companies must be listed and assessed in the county, town, or district where such property is usually kept. Section 27 provides for the assessment of the personal property and franchises of gas and water companies; section 29, for the assessment of street railways and their franchises; and section 30, for the assessment of railroads operated in one county only, telegraph, telephone, and electric light lines and their franchises, canals, ditches, and flumes. Held, that the mere franchise of being a corporation was not thereby made taxable, so that an express company is not taxable on its franchise, since it enjoys no greater privilege than an individual.

4. TAXATION 165-FRANCHISE. foreign corporations coming into the state to Since Rev. Codes, § 4420, merely authorizes exercise power of eminent domain in such cases as domestic corporations could exercise it, and as an express company is nowhere authorized eign express company does not have a special to invoke the power of eminent domain, a forprivilege taxable as a franchise. 5. TAXATION 117-FRANCHISE.

The Constitution, in using the term "franchise," refers to something having a practical money value, and out of which the tax may be realized by forced sale, if necessary. 6. CONSTITUTIONAL LAW 19-CONSTRUC

TION-BY EXECUTIVE.

It is a general rule that contemporaneous construction by the department of government specially delegated to carry out a provision of the Constitution raises a strong presumption that such construction, if uniform and long acquiesced in, rightly interprets the provision; and, while such construction is not conclusive FRICK, C. J., and MCCARTY and NEU-upon the courts, it is entitled to the most reMAN, JJ., concur: GIDEON, J., concurs in spectful consideration. the result.

WELLS FARGO & CO. v. HARRINGTON, County Treasurer, et al. (No. 3819.) (Supreme Court of Montana. Nov. 26, 1917.) 1. TAXATION 117 FRANCHISE TAXES

-POWERS OF STATES-"PROPERTY." Under Const. art. 12, §§ 1, 7, 16, stating what property is taxable, and section 17. defining property to include franchises, a franchise granted by the state is subject to taxation.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Property.]

2. WORDS AND PHRASES-"FRANCHISE."

In its broad significance, the word "franchise" denotes a right or privilege conferred by law.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Franchise.]

Appeal from District Court, Silver Bow County; J. B. McClernan, Judge.

Mandamus by Wells Fargo & Co. against John J. Harrington, County Treasurer of Silver Bow County, and another. From the decree rendered, defendants appeal. Affirmed.

S. C. Ford, of Helena, and Frank Woody, of Butte, for appellants. Kremer, Sanders & Kremer, of Butte, for respondent.

HOLLOWAY, J. Wells Fargo & Co., a corporation organized under the laws of Colorado and authorized to do and doing business in this state, having paid to the secretary of state the fees required as a condition precedent to doing business here, and having paid its annual license taxes and taxes upon its tangible property, brought this action to restrain the collection of a further tax upon a

valuation of $30,000 fixed by the assessor of Silver Bow county upon the company's franchise on all intrastate business done by it in this state. The district court overruled a demurrer to the complaint, and the county and its treasurer, declining to plead further, suffered judgment to be entered against them, and appealed.

same lines of endeavor to the same extent without permission from the state, and enjoy all the rights, privileges, and benefits accorded to the corporation. Other illustrations might be drawn of the use of the term in this comprehensive sense.

The word also has a more restricted meaning, to denote a special privilege conferred The indorsement on the assessment roll upon certain individuals, associations, and must be held to indicate an intention on the corporations, not enjoyed by the citizens genpart of the assessor to describe the franchise erally. For example: Under its franchise of this company and to fix the valuation a street railway may lay its tracks upon and thereof upon the basis of the amount of in- operate its cars over public roads, streets, trastate business transacted by it, and this and alleys, and occupy such thoroughfares to presents for our determination the question: the exclusion of the public, to the extent necDoes the plaintiff corporation exercise or en-essary to the conduct of its business. A telejoy a franchise in this state, as the term is graph or telephone company under its franused in the Constitution and statutes? The chise may use such public places for its pole subject, taxation, is considered in article 12 lines and wires; and a gas or water company, of our state Constitution. All property is by virtue of the like authority, may tear up subject to taxation, except such public and the streets and other public roads, and to that quasi public property as is specially exempt- extent impede public travel, for the purpose ed and such other property as may be exempt of laying, repairing, or renewing its mains. by law. Section 1. The power to tax cor- These examples might be multiplied almost porations or corporate property shall never indefinitely, for such franchises are about as be relinquished, and every corporation in varied as the purposes for which corporathis state or doing business herein shall be tions may be organized; but the foregoing subject to taxation on all real or personal suffice to illustrate a character of public property owned or used by it, unless it belongs privilege or franchise not conferred upon or to a class of property which is exempt. Sec- enjoyed by the public generally. If the bare tion 7. All property shall be assessed in the privilege of doing business as a corporation manner prescribed by statute or by the Con- is a franchise, within the meaning of that stitution. Section 16. Section 17 defines term as employed in the Constitution, then property to include moneys, credits, bonds, every corporation in this state is taxable upstocks, franchises, etc. on its franchise, whether it be engaged in religious or charitable work, or in buying and selling dry goods, groceries, and other wares, in the printing or publishing business, or in any other one of the numerous occupations mentioned in section 3808, Revised Codes, unless its franchise as such is devoted exclusively to some purpose mentioned in section 2499, Revised Codes.

[1-3] The question, Is a franchise granted by this state subject to taxation? is not open to discussion. The Constitution answers it in the affirmative, and no amount of judicial learning exhibited in decided cases can add to or subtract from that determination. But what is meant by a "franchise," as that term is employed in our Constitution? That it is not a word to which is attached a limited, But this court may not arbitrarily formuprecise, well-understood, and generally ac- late a definition of the word "franchise" and cepted meaning, is evidenced by the fact that determine this appeal accordingly. The duty in Words and Phrases (first edition and sec- is laid upon us to ascertain, if possible, the ond edition) 22 pages are given over to def- meaning which the framers of the Constituinitions of the term. In its broad significance tion intended should be attached to the term. the word is used frequently to denote a right In an effort to carry into effect the mandates or privilege conferred by law, and in this contained in article 12 of the Constitution, the sense we speak of the elective franchise as legislative assembly in 1891 availed itself of a privilege enjoyed by every one of our citi- the first opportunity presented after the Conzens who possesses the qualifications pre-stitution was adopted to enact a general revscribed by law. The right to exist as a corporation in this state is a franchise or privilege conferred upon any individuals who meet the requirements of the statutes. So, likewise, the authority to conduct business in this state as a corporation is a franchise, and in this sense every corporation enjoys a franchise, even though it may be formed for religious, benevolent, charitable, educational, literary, scientific, or social purposes, or for the promotion of painting, music, or other fine arts. But the authority to engage in any of these undertakings is not peculiar to cor

enue measure to meet the changed conditions incident to the admission of the state. The act was very comprehensive in its terms, contained 206 sections, and treated of every phase of the assessment of property and the imposition and collection of taxes. Laws 1891, pp. 73-129. Section 11 provides for the assessment of the property-including franchises-of railroads operated in more than one county, and follows closely the language of the Constitution. Section 26 provides that the personal property of express companies must be listed and assessed in the county,

ally kept. Section 27 provides for the assessment of the personal property and franchises of gas and water companies, section 29 for the assessment of street railways and their franchises, and section 30 for the assessment of railroads operated in one county only, telegraph, telephone, and electric light lines and their franchises, canals, ditches, and flumes. These several provisions were carried forward into the compilation of 1895 (Pol. Code, § 3719) without change, except that after the word "flumes," in section 30, there was added "and the franchises of the same," and with this change they were brought into the revision of 1907 (section 2529) and constitute the law upon the subjects to-day.

cate wherein section 7331, Revised Codes, authorizes a domestic corporation engaged in the express business to invoke the power of eminent domain to any extent or for any purpose, not open to a private individual. Section 18, article 12, provides: "The legislative assembly shall pass all laws necessary to carry out the provisions of this article." As we have seen, the Legislature endeavored to carry this mandate into execution by the enactment of our revenue laws, in which the term "franchise" is construed to mean a special privilege conferred by the state directly or indirectly to do or perform certain acts or things which, in the absence of the special privilege, could not be done, and which special privilege the citizens generally do not enjoy by common right. This construction was placed upon the language of the Constitution, substantially contemporaneous with its adoption, has been continued throughout the 26 years since the enactment of the statute, has been acquiesced in by the people and applied by the revenue officers, constituting a part of the executive branch of the government, and is indicative of the public policy of the state.

It is strikingly noticeable that during all these years, in all of our legislation, though specific reference is made to the taxable property of an express company, no mention whatever is made of the franchise of an express company; whereas, during all of the period the franchise of every railroad, street railway, gas, water, telegraph, telephone, electric light, canal, ditch, and flume company is singled out as a species of property made subject to taxation. For this discrimi- [5] In providing for taxation of property, nation there must have been some excuse or the obvious purpose was to raise revenue, justification, and in our opinion it is to be and therefore it is self-evident that, when sought in the character of the business it- the Constitution employs the term "franself. An express company, in the conduct chise," it refers to something which has a of its business, enjoys no greater privilege practical money value, and out of which the in this state than a messenger boy who car- tax may be realized by forced sale, if necesries packages from one place to another for sary. Section 2502, Revised Codes, provides: hire. The expressman, whose outfit consists "All taxable property must be assessed at only of a horse and wagon, and who moves its 'full cash value.'" Section 2501 defines baggage, furniture, and like articles for hire, the terms "value" and "full cash value" to is engaged in the express business and en- mean "the amount at which the property joys all the rights and privileges granted to would be taken in payment of a just debt Wells Fargo & Co. An express company has due from a solvent creditor." The bare privno greater rights in the streets, roads, and ilege granted to a corporation to do business other public places than the humblest pedes- is in the nature of a personal privilege. It trian. Anything that it can do the private cannot be sold or transferred by the corpocitizen can do to the extent of his capacity.ration; neither can it be seized or sold unEvery other one of the corporations enumer- der legal process. But the franchise of a ated in the revenue act enjoys some special corporation-meaning thereby the special privileges and advantages which the citizens generally do not possess. In other words, the Legislature has distinguished the privileges conferred by the government upon the people generally, from those special privileges conferred upon certain persons, associations, and corporations, and has designated a privilege of the latter class by the term "franchise."

[4] It is the contention of appellants that every foreign corporation, admitted to do business in this state, is authorized by section 4420, Revised Codes, to exercise the power of eminent domain, and that this plaintiff enjoys that special privilege, which is not conferred upon the citizens generally; but the statute does not so provide. It only gives to such foreign corporation the same right in this behalf as is enjoyed by the domestic corporation engaged in the like business; and counsel have failed to indi

privileges essential to its successful operation in the particular business in which it is engaged-is a valuable property right, which may be sold by the corporation and is subject to seizure and sale under execution. To illustrate: The privilege conferred by the state upon a corporation to furnish gas for light and other purposes would be of no practical value, if the corporation could not obtain access to the streets and alleys of any city for the purpose of laying its mains without resort to eminent domain proceedings, and yet such privilege might be denominated a "franchise" within the more comprehensive definition of the term. On the other hand, the privilege conferred by a municipality upon a corporation to use its streets, alleys, and other public places for the purpose of laying its mains and supplying gas to its inhabitants is a valuable privilege, which forms a part of the aggregate of its property

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