SULLIVAN, C. J.
This is an action in ejectment brought by Boise City, a municipal corporation, against the defendants for a certain tract of land described as “Idaho street,” running between blocks 115 and 116 in said city. The property in controversy is claimed by the city for street purposes by reason of the issuance of a patent by the United States, conveying the same to the mayor of Boise City in trust for ■the use and benefit of the occupants of the said townsite, dated May 2, 1870. That patent was based- upon a plat of said original townsite, which was filed in the U. S. land office at Boise City on November 23, 1867, and on the 25th of said month, was filed in the county recorder’s office of Ada county, the county in which said city is located, and was thereafter sent to the commissioner of the general land office [155]*155at Washington, on which plat the land in controversy appears as a part of Idaho street.
The defendants base their title and right to possession of said land upon an act of the legislature of Idaho Territory passed in 1871, entitled “An act to vacate Idaho street on the outskirts of Boise City,” and by reason of a deed dated July 8, 1871, from Charles Himrod, the then mayor of Boise City, and trustee of the townsite of Boise City, to one Cyrus Jacobs, and the possession of said property by the said Jacobs under and by virtue of said deed.
The case was tried by the court with a jury and resulted in a verdict and judgment in favor of the defendants. This appeal is taken by the plaintiffs from the judgment and the order denying a new trial.
The following, among other facts, appear from the record: That the plat of the original townsite of Boise City was duly made and approved by the council of Boise City, and the streets and alleys thereon were declared to be public highways. Ordinance No. 2, approved November 27, 1867, is in part as follows: “Sec. 1. Be it ordained by the city council of Boise City that on and after this date all streets and alleys as shown upon the plat of said Boise City, now on file in the office of the United States land office are, and the same are hereby declared public highways”; that the land in controversy was marked on said plat as a part of Idaho street, which plat was duly filed in the United States land office at Boise City on November 23, 1867, and in the office of the county recorder on the 25th of that month; that on May 2, 1870, the premises in controversy, including the entire townsite of Boise City were conveyed by patent from the United States to the mayor of Boise City in trust for the occupants of said townsite, to be by him disposed of as provided by law. Said patent recites as follows:
“The United States of America to All to Whom These Presents Shall Come, Greetings:
“Whereas Henry E. Prickett, Mayor of Boise City, Ada County, Idaho Territory, in trust for the several use and benefit of the occupants of the townsite of Boise City ac[156]*156cording to their respective interests by virtue of an act of the Congress approved March 2nd, 1867 (here follows a reference to the acts of Congress for the sale of public lands for townsite purposes and a description of the land included within said entry by metes and bounds), according to the official plat of the survey of the said lands returned to the General Land Office by the Surveyor General, which said tract has been purchased by the said Henry E. Prickett, Mayor as aforesaid in trust as aforesaid.
“Now know ye, that the United States of America, in consideration of the premises and in conformity with the several acts of Congress in such cases made and provided, have given and granted, and by these presents do give and grant unto the said Henry E. Prickett, Mayor as aforesaid in trust as aforesaid, and to his successors the said tract above described.
‘ ‘ To have and to hold the same, together with all the rights, privileges, immunities and appurtenances of whatsoever nature, thereunto belonging unto the said Henry E. Prickett, Mayor as aforesaid, in trust as aforesaid, and to his successors and assigns in trust as aforesaid. ”
Sec. 2387, U. S. Rev. Stat., under which said entry was made, is as follows:
“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 pre-emption 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.”
Under said provisions, a settler and occupant may demand and receive from the trustee a deed to the tracts to which he [157]*157is entitled on compliance with the rules and regulations prescribed by the legislature. (See act approved Jan. 6,1871, 6th Terr. Sess. Laws, p. 29.) The first section of that act, among other things, appoints the mayor of Boise City as trustee to execute the trust in the manner and terms and under the limitations specified in said act, and he is required to deliver to the occupants of said lands deeds according to their respective interests, and publish notice in some newspaper, requiring persons claiming lots in said townsite to present their respective claims in writing. Sec. 2 provides that the occupants of the townsite may at any time within sixty days after the publication of the notice required by the first section make. their respective applications for titles to such portions of said townsite as are claimed by them; that such written claim must name the lot and block or portion claimed by each and must particularly designate and describe such lots and blocks and improvements, which application must be verified by oath, and provides that no claim shall be received which does not conform to the requirements of that act; and further provides as follows:
“That no claim shall be received for, nor any conveyance made of any portion of, any street or alley that has heretofore been declared public highways, or other lands, within the limits of said city, which have been dedicated and appropriated to public use, except for the use of said county and said territory.”
It will be observed that the above-quoted part of said act of the legislature provides that no claim shall be received by the mayor nor any conveyance made by him of any portion of any street or alley that has theretofore been declared public highways, and it will be observed from Ordinance No. 2 above quoted, which was approved on November 27, 1867, two days after said plat had been filed in the office of the county recorder of Ada county, and four days after it had been filed in the United States land office at Boise City, that the city council of Boise there declared that on and after said date, “all streets and alleys as shown upon the plat of said Boise City, now on file in the office of the United States [158]*158land office, are and the same are hereby declared public highways.” The legislature, by the provisions of said act, recognized said plat and declared that the trustee should not convey any portion of any street or alley that had theretofore been declared public highways. Said act of the legislature was approved on January 6, 1871, more than three years after said plat had been filed with the county recorder, and approved by the city council, and the streets and alleys as shown on said plat had been declared public highways.
The land included in said townsite as entered by the mayor was of a peculiar shape — contained 442 acres and was located in secs. 3, 4, 9, 10 and 11, Twp. 3, N. R. 2 E., B. M., and said entire tract had been platted into lots, blocks, streets and alleys at the time the entry was made on November 23, 1867, and said plat was filed in the office of the surveyor general of the Territory of Idaho, as required by law, and in the United States land office at Boise City.
It also appears from the record that at the time said city was platted in 1867 one Cyrus Jacobs had several acres of land inclosed with a fence, including the tract of land in controversy with said block 115 and perhaps some other land, and was using the same as a pasture. It also appears that after the United States had so conveyed said land to the mayor of said city in trust, as aforesaid, the legislature of Idaho passed an act entitled, “An act to vacate Idaho street on the outskirts of Boise City,” which act was approved January 13, 1871. (6th Territorial Sess. Laws, p. 67.) The first section of said act is as follows:
“Sec. 1. That such portion of Idaho street, below and west of Fourteenth street and the alley on blocks 114 and 115, in Boise City, in the county of Ada, and Territory of Idaho, as designated on the map and plan of Boise City, on file in the office of the county recorder of said county (the same never having been used) be and the same is hereby vacated and closed.”
As the patent when issued related back to the date of the entry which was November 23, 1867, the city council had [159]*159the right to dedicate streets to public use at any time after the entry.
It also appears from the record that on July 8, 1871, the then mayor of said city, Charles Himrod, executed a deed purporting to convey the real estate in controversy to Cyrus Jacobs, which deed recites that on May 2, 1870, the United States of America, by its letters patent, dated on that day, according to the provisions of the several acts of Congress, and in conformity with such provisions, conveyed to Henry B. Prickett, the late mayor of said city, and to his successors in office, in trust for the several use and benefit of the occupants thereof, the lands included within the metes and bounds mentioned in said deed; and said deed further recites that on January 6, 1871, the legislative assembly of Idaho Territory passed an act for the disposal of said lands comprising the townsite of Boise City, as provided by said act of Congress; and further recites that said Jacobs has made due application and had in all things complied with the provisions and requirements of said act and is entitled to a deed to said premises, the same being a portion of said townsite, to wit: “All that certain ground formerly included in and being a part of Idaho street west of Fourteenth street and the alley on and running through the center of blocks 114 and 115, together with all of the estate, right, title and interest which was given and granted by the United States of America in trust by said letters patent. ’ ’ It also appears that the defendants herein all claim title from their common grantor, Cyrus Jacobs, under said deed from Mayor Himrod.
T. W. Randall, a witness on behalf of the plaintiff, testified that he owned said block 116 up to 1900; that obstructions were put there during the summer of 1900; that he found a pile of rock in said street and waited until the team and driver came with more rock, and had a conversation with the driver, whose name was Brown. Brown informed Randall at that time that he owned the property and that he put the rock there. Randall informed him that that was Idaho street, and that he himself owned block 116, and that was the [160]*160first obstruction in that street. Prior to that there were no houses in that street. He also testified that he had been familiar with this property about forty or forty-five years; that when he first knew the place, it was all open ground; afterward it was fenced in for a pasture; that said Jacobs claimed and used it for a pasture; that said Jacobs had inclosed there block 115; that said fence obstructed travel from that time on down, for more than thirty years, and that said premises had not been used as a street during that period of time. In the fall of 1899 or in 1900, Brown went ahead and built his house there, claiming he owned the land. Copies of the original maps and plats of the city were introduced in evidence, and also other oral testimony.
J. H. Hawley, ex-mayor of Boise City, a witness on behalf of the defendant, testified that in 1871 he was a member of the territorial legislature, and that during that session the property in controversy was the subject of legislative investigation; that Cyrus Jacobs claimed to be the owner of the premises at that time, and that there was a distillery there; that these premises were inclosed with a fence and were not used for street purposes; that Jacobs retained control of the premises until about 1901, when the street-ear company was organized.
Ex-mayor Himrod testified that he was the mayor of Boise City for two terms; that he knew the property in controversy and knew Jacobs as early as 1864; that said Jacobs had a business on Idaho street, and he thought it was in 1867 he got possession of that property — it might have been in 1866; he had a grist-mill there first, and afterward a distillery.
James A. Pinney, ex-mayor of Boise City for five terms, testified on behalf of the defendants that he was acquainted with that portion of the city originally platted as Idaho street; that Jacobs had a grist-mill and distillery there, but he did not know whether it was right in the street or not; it was fenced in there from Main street to Bannock, and that Jacobs continued in possession until the 90’s, about the time [161]*161the electric road was built; that the city never exercised any dominion over that portion of Idaho street.
J. H. Richards, ex-mayor of said city, another witness, testified that he was mayor of Boise City from 1899 to 1901, and was acquainted with Idaho street in the vicinity of 14th and 16th streets; that during that time the portion of Idaho street in controversy was not open as a street, and that the city exercised no dominion over it.
Two other ex-mayors testified that during their terms of office Boise City exercised no control over that part of Idaho street.
The defendants testified as to their improvements, the value thereof, etc., showing that such improvements had been put on during the year 1900 and since.
Upon these facts, is the city entitled to recover? That is the main question in the case.
Some question is raised by demurrer as to the misjoinder of parties plaintiff and defendant. There is nothing in that contention, as all of the parties, both plaintiffs and defendants, are interested in the result of this action, and are properly joined as parties. (Secs. 4101 and 4102, Rev. Codes; see, also, Greer v. Mezes, 65 U. S. 268, 16 L. ed. 661.)
If is also contended under the pleadings that the court erred in admitting certain evidence in regard to the possession of and improvements .by the said Jacobs of said premises prior to the conveyance by Mayor Himrod to said Jacobs, and that it was error to admit evidence showing that said Jacobs had said land inclosed prior to the date of said deed. We think from the averments of the answer that the defendants should not have been permitted to introduce any evidence prior to the date of said deed, but in rebuttal of the evidence introduced by the city to the effect that Jacobs had no improvements on said street except a fence, it was proper to permit the defendants to rebut that evidence.
Under the provisions of said sec. 2387, U. S. Revised Statutes, the corporate authorities are authorized to enter as a townsite in the proper land office the land settled upon and [162]*162occupied “in trust for the several use and benefit of the occupants thereof, according to their respective interests.” The rules and regulations of the land department of the United States require that in the entry of townsites, a plat of the land sought to be entered as a townsite must be filed with the United States land office in the district where such land is situated, which was done in the case at bar on November 23, 1867, at the date on which the then mayor made application to enter the said tract of land as a townsite; especially is such plat required when the townsite sought to be entered is not entered in accordance with the legal subdivisions as per .government survey. It was upon that application and plat that the patent of the United States for said land was issued to the mayor of said city. The title passed to said mayor as trustee, and relates back to the date of the entry. “Entry,” under said act, means the filing of the application by the proper officer with the register of the land office, and proof of the performance of the conditions in respect to the settlement and occupancy of the townsite. (Lockwitz v. Larson, 16 Utah. 275, 52 Pac. 279.) The lots and blocks in the plat were for the several use and benefit of the occupants of said town according to their respective interests, and the streets and alleys were dedicated to the use of such occupants and the public generally, who might want to. use them for traffic and travel. .The streets and alleys were dedicated to the use of the public generally, and especially to the use of the occupants, through said townsite plat and patent and by said ordinance of the city council. Under the United States law, townsite grants presuppose that the land included in such grants will be used for town or city purposes; that in order to use such townsite, it will be necessary to divide the same into lots and blocks, streets and alleys, and the law proceeds and rests upon that theory, and all settlers and squatters upon such land before entry, who have in no manner connected their settlements and claims with the government under any of its land laws, are supposed to take whatever interests they may have in accordance with the plat, which was the basis of said patent, and adjust their [163]*163holdings to such plat. It would, indeed, be an anomalous condition if settlers upon said townsite could settle upon and inclose lands therein as their own caprice, wish or desire might dictate, and disregard the plat made and adopted by the city council. In such a case, there could be no regularity whatever in streets and alleys. Jacobs had fenced more than a block, — not for city purposes, but for a pasture for stock, and thereafter placed a mill and afterward a distillery within such inclosure. The government disposes of parts of the public domain for townsite purposes, and under the town-site law land cannot be legally acquired for farm purposes. If Jacobs wanted the land he had inclosed for other than townsite purposes, he should have taken advantage of his prior settlement and improvement and entered it under the homestead or pre-emption laws of Congress, if he were a prior settler. The act of the territorial legislature (approved Jan. 6, 1871, Sixth Session Laws, p. 29) to provide for the disposal of lands in Boise City pursuant to the several acts of Congress, provided specially that the mayor-trustee should not convey to anyone any portion of any street or alley; and even if it had not been so declared, the trustee could not legally convey any part of said land that had been properly dedicated for a street, as he had no authority to convey it. It was in violation of his trust to attempt to convey a street.
The next question is: Had the legislature authority to vacate said street as it undertook to do by said act of January 13, 1871?
It had no such authority. The entry by the mayor and the issuance of the patent was under the authority of the act of Congress, see. 2387 of which act is above quoted. The terms of that section are clear and explicit, and provide for the execution of said trust as to the disposal of the “lots” and the disposal of the proceeds of the sales thereof in accordance with such rules and regulations as may be prescribed by the legislature. That section contains no intimation that the legislature can prescribe rules for the disposal of the streets, but only for the disposal of the lots. What lots? Such as are shown by the plat which was the basis of said entry. The [164]*164lots might be disposed of under such rules as the legislature might provide, but the streets which were dedicated to . the public could not be sold or vacated by edict of the legis-■lature or by conveyance by the trustee.
In Town of Aspen v. Bucher, 10 Colo. 184, 15 Pac. 791, the court said:
“That the act of Congress required the whole townsite to be held in trust until finally disposed of as trust property, and that neither the legislature nor the court could change the character of the estate derived from the government from one in trust to one in fee simple, except first, by conveyances to beneficiaries who have complied with the law, and, second, by bona fide sales made by the trustee under such regulations as the legislature may prescribe.”
Neither the legislature nor the mayor-trustee had any authority to dispose of a street that had been dedicated to the public, for the reason that such action would change the character of the trust in relation to the land dedicated for street purposes.
In Newhouse v. Simino, 3 Wash. 648, 29 Pac. 263, the court had under consideration an act of the legislature relating to the disposal of town lots entered under the provisions of said sec. 2387, U. S. Rev. Stat., and said:
“The providing of this machinery was left to the legislature of the territory, but of course the legislation thereunder must be harmonious with and not in opposition to the spirit of the grant.”
The Idaho legislature in said act of January 13, 1871, and the mayor in said deed to Jacobs recognized that said land was “formerly a part of Idaho street,” and should have known that their acts were in direct conflict with not only the spirit but the letter of the townsite laws of Congress and the grant in the patent of the United States to the mayor-trustee.
In Clark v. Titus, 2 Ariz. 147, 11 Pac. 312, the court said:
“The legislature of the territory had the power to regulate the manner of the disposal of the lots and the execution of the trusts. But there was no power to change or alter the [165]*165conditions of the trust.....Any act of the legislature which would create a breach of said trust is void.”
Said act of the legislature and the mayor-trustees’s deed to Jacobs undertook to commit a breach of said trust, which they could not do, and their acts in that regard were absolutely void.
In Boise City v. Hon, 14 Ida. 272, 94 Pac. 167, this court held that neither the city officers nor other public officer has any power to defeat the right of the public in property dedicated to a public use.
In Ashby v. Hall, 119 U. S. 526, 7 Sup. Ct. 308, 30 L. ed. 469, in defining the power of the legislature in relation to the townsite acts of Congress, the court said:
“The power vested in the legislature of the territory in .the execution of the trust, upon which the entry was made, was confined to regulations for the disposal of the lots and the proceeds of the sales. These regulations might extend to provisions for the ascertainment of the nature and extent of the occupancy of the different claims or lots, and the execution and delivery to those found to be occupants in good faith of some official recognition of title, in the nature of a conveyance. But they could not authorize any diminution of the rights of the occupants, when the extent of their occupancy was established. The entry was in trust for them, and nothing more was necessary than an official recognition of the extent of their occupancy. Under the authority conferred by the townsite act, the legislature could not change or close the streets, alleys and blocks of the town by a new survey.- Whatever power it may have over them did not come from that act, but if it existed at all, from the general grant of legislative power under the organic act of the territory.”
Under the organic act of the territory of Idaho, no power is given to the legislature of the territory to vacate a street of a townsite entered under the provisions of the laws of Congress. The attempt of the legislature to do that was an assumption of unauthorized power in direct opposition and in conflict with the grant to the mayor as trustee of the lands embraced within the original townsite of Boise City. The [166]*166grant made by the patent was based upon the plat filed designating streets thereon, and such streets were dedicated by the city council to the use of the public, and it is not within the power of the mayor-trustee to deed away such streets to private individuals', for the reason that such dedication vests an absolute right in abutting owners which cannot be disturbed or abridged in that way.
In Dooly Bloch v. Salt Lake Rapid Transit Co., 9 Utah, 31, 33 Pac. 229, 24 L. R. A. 610, it was held that the right of abutting owners to use a street as a means of access to their lots and for light and air is the same where the fee of the street is held by a city in trust for the use of the public as where the fee is owned by the abutting owners. Under the constitution the legislature or the mayor-trustee has no authority to take private property for public use without just, compensation, nor has the legislature the authority to take public property for private purposes'as it attempted to do in the case at bar. After Congress has dedicated land to public use as a highway and other public purposes, and the sale of lots abutting thereon to individuals has been made, the dedication cannot-be revoked. (Cook v. City of Burlington, 30 la. 94, 6 Am. Rep. 649.)
In numerous eases the supreme court of the United States has held under the laws granting railroads the right of way that such grants were absolute to the railroad for the full width of the right of way granted, grants that could not be interfered with, and that the railroad company could not alienate any part of the right of way so granted. (New Mexico v. United States Trust Co., 172 U. S. 171, 19 Sup. Ct. 128, 43 L. ed. 407; Northern Pac. R. R. Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. ed. 1044.)
As Jacobs acquired title by mayor’s deed subsequent to the filing of the townsite plat, the issue of the patent, and the dedication of the streets to the public by the city council, he took said land subject to the easement created by the dedication. This was fully understood by Jacobs, as the act of the legislature attempting to vacate the street and the deed from Himrod, the mayor, to Jacobs, both referred to said property [167]*167as being a portion of Idaho street. Jacobs could not defeat the dedication of said street by having had the same inclosed with a fence or even a building on it, and the title of the defendants, if it attached at all, proceeded from the title that Jacobs obtained through his deed from the mayor. Jacobs was in no position to assert title to the land in question as against the public at the time of his conveyance; therefore his grantee will be in no better position than he was. In Walla Walla v. Moore, 2 Wash. Ter. 184, 2 Pac. 187, the court held that where a grantor is not in a position to assert his title to the land as against the public at the time of the conveyance, his grantee will, under similar circumstances, be in the same position. In that case the court further held that Baker, the original grantor, had by his acts so far adopted the townsite plat in reference to the particular portion thereof affecting this question, that he will not be allowed to make any claim in objection thereto.
In the case at bar, Jacobs certainly recognized the dedication of Idaho street on the plat of the original townsite of Boise City, as it is recited in his deed from the mayor as follows: ‘ ‘ Ground formerly included in and being a part of Idaho street west of Fourteenth street and the alley on and running through the center of blocks 114 and 115.”
Under the several acts of Congress in regard to the entry of townsites, as soon as the application is made, the plat filed, the proper proofs submitted, the money paid and the patent issued, the title passed to the trustee as of the date of the entry, and considering the application and plat as the basis of the patent, the terms of the patent were in effect that the streets indicated on the plat were dedicated to the use of the public, and were also so dedicated by the ordinance of the city above quoted. Where a street has been legally dedicated, it remains a street free from any interference by legislative authority, and the municipal authorities are the ones to say when the times and conditions are such that said property should be used for street purposes.
The contention of counsel for respondents is that said entry was made in trust for the occupants of the townsite, [168]*168and their rights to parcels of land occupied by them became vested when the entry was made, and it matters not in what irregular shapes such parcels or lots of land may be held or how irregular, the streets must be made to conform to such occupancy, and it is contended that the surveyor who plats the town and the trustee must, in making and filing the plat, conform the lines of the street to the existing lot lines, and cannot run the street over land in the occupancy of an individual. We cannot agree with this contention, and the history of the application of the townsite laws of Congress refutes such contention. Counsel cites in support of his contention, Hall v. Ashby, 2 Mont. 489, and Parchen v. Ashby, 5 Mont. 68, 1 Pac. 204. It seems in those cases there had been two plats and two surveys; the later one was made by the probate judge and did not conform to the earlier one. In the latter case the court said:
“The plat and survey of the probate judge must conform to the old survey, by which the occupants had held and occupied their lots prior to the entry of the townsite; otherwise his plat and survey are so far void.”
It seems that lots had been sold and occupied under the old survey, and the court further said:
“The occupants of lots under the old survey acquired certain easements, rights and interests.in and to the streets and alleys which had been opened and used as such, adjacent to the lots so occupied. The trust in the probate judge attached to these rights and easements the same as it did to the lots themselves.....All the powers of the probate judge as trustee are exhausted when he has conveyed to the occupants their lots according to their several rights and interests.”
In that case it appears that a survey of the townsite had been made and the occupants held their lots in accordance with such survey, and recognized and used the streets in accordance with such survey. That being true, the survey made under the direction of the probate judge should have conformed to the first survey under which the occupants held their lots.
[169]*169Counsel also cites the City of Pueblo v. Budd, 19 Colo. 579, 36 Pac. 599, and contends that it is squarely in point. The court said: ,
“It appears from the pleadings that the land was not used or laid out as a street before or at the time of the entry of the townsite; nor has it ever been so used, and the designation of it as such is first found on the plat filed by the trustee. The town of Pueblo being unincorporated, the inhabitants had a vested interest in streets and alleys opened and used at the time of the entry of the townsite, but they had no interest in the land in dispute as a street that the trustee was authorized to preserve; and his act in designating the same as a part of Third street was unauthorized and void.”
In that case the townsite plat by which the trustee held the title thereto designated the land in dispute as a street, but such designation did not conform to the streets and alleys opened and used at the time of the entry of the townsite. In the case at bar, Jacobs was not holding said land in conformity with any street, while the occupants of the townsite of Pueblo were holding their lots in conformity with certain streets in which the court held they had vested rights. That is the distinguishing feature between the case at bar and that case.
In McCloskey v. Pac. Coast Co., 160 Fed. 794, 87 C. C. A. 568, the court said:
“The streets contemplated by the aet, and as to which a public right attaches, are those which in fact existed at the time of the entry, either by actual use or by dedication, and the trustee cannot, by any act of his own, dedicate a street.”
In the case at bar the city council had dedicated Idaho street to the public immediately after the mayor made the townsite entry and nearly four years before' said mayor’s deed was executed.
Counsel for appellants contend that this court has announced the doctrine contended for in Scully v. Squier, 13 Ida. 417, 90 Pac. 573. That ease is not in point here, as [170]*170the facts of that case are very different from the facts in the case at bar. In that case, the mayor filed his application to enter the Lewiston townsite on the 21st day of November, 1871, in trust for the inhabitants of that city, claiming settlement in 1861. Said entry was made in accordance with the legal subdivision as per government survey and not in utter disregard of such legal subdivisions, as was the entry of the Boise City townsite. It appears that the purchase price for the land was not paid and final proof was not made until June 6,1874. Said entry was made under the provisions of said sec. 2387, U. S. Rev. Stat., and in pursuance of said entry and the statute, the legislature of the territory of Idaho passed an act providing for the survey, platting and disposal of the lands included in said Lewiston townsite entry, which act was approved January 8, 1873. (See 7th Session Laws, p. 16.) It also appears that only a part of the land entered had been platted. Said act provides, among other things, that within twenty days after the receipt of the patent from the government, the mayor-trustee should give notice thereof in a newspaper requiring all persons claiming land within said entry to present their respective claims therefor in writing, and the first section of said act further provides as follows: “The said mayor-trustee shall at the same time also cause to be made and filed in his office by a competent person, a plat of said land divided into blocks and lots to such an extent as may be deemed requisite by the said mayor-trustee.....” And the second section provides that the streets, lanes, alleys and other rights of way which may be in common use at the time of the enforcement of said act within said city over the land described were thereby declared to be highways for the use and benefit of the inhabitants of the city, and that the survey and platting of the said land into lots and blocks and acres, or parts of the same, should conform thereto; that the survey and platting of the land described in said patent should be so as to divide the blocks into lots to be, whenever practicable, each fifty feet in width and one hundred feet in depth, and the fractional block or blocks lot or lots, acre or acres should be [171]*171so arranged and adjusted as to conform to the condition of the improvements and occupation at the time of the enforcement of the act, and that where streets, alleys, roads or other rights of way had obtained or might have been reserved or claimed by the inhabitants in common, as streets, alleys, roads or other rights of way, and might be occupied at the time of the enforcement of this act, by individuals, were thereby declared to be public highways for the proposed use and benefit of the inhabitants of said city. It will be observed that this act providing for the disposal of the lands within the townsite of Lewiston is very different from the act providing for the disposal of the lots and blocks within Boise City. The survey there was made after the patent was issued to the mayor, and the surveyor employed to replat said portion of the town which had theretofore been platted was directed to conform to the condition of the improvements and the occupation at the time of the enforcement of the act, and it was clear to the court in that ease that the surveyor failed to make said plat of 1874 conform to the plat of the city at the time the entry was made in 1871. The plat of 1874 was not the plat upon which the entry of the townsite was based; while in the case at bar, the entry of the townsite of Boise City was based upon a plat made and filed in the local United States land office at the time the entry was made, and was, within a day or two thereafter, filed in the office of the county recorder of the county in which said city is located. So the rule laid down in the Scully-Squier case is not applicable to the case at bar.
The main point in this suit is as to the validity of the dedication of Idaho street as against Jacobs. There is no question but what the dedication of said street, so far as the occupants of said townsite were concerned, was valid. It is contended that Jacobs was one of the beneficiaries of the trust created by the act of Congress and the entry made by the mayor. That may be conceded to be correct, but that would not give Jacobs any claim or right to any portion of a street or alley that had been theretofore declared a public highway under his occupancy as shown by the evidence. [172]*172Under the provisions of the act of the legislature which provided for the disposal of the lands in Boise City, the mayor-trustee was prohibited from receiving any claim or making any conveyance to any portion of any street or alley which had been declared a public highway.
Regardless of the views above expressed and the law therein applied, it is clear to us from the facts of the case that the equities are with the defendants, and that the doctrine of equitable estoppel should be applied in the case. Jacobs evidently took possession of said premises as early as 1867, and inclosed the same with a fence. Patent was issued to .the mayor-trustee on May 2, 1870. On January 14, 1871, the legislature undertook, after an examination of the matter, to vacate Idaho street, so far as the premises in dispute are concerned. The mayor-trustee thereafter, on July 8, 1871, conveyed to said Jacobs the disputed premises, or at least undertook to do so, and it may be gathered from the evidence that Jacobs erected thereon a mill and a distillery; that said street never was used as a street and was always recognized by the Boise City authorities as private property. Five ex-mayors of the city, covering a period of more than thirty years, testified in effect that the disputed premises had been looked upon and considered as private property, and that the city had not undertaken to exercise any authority over it whatever, so far as a street was concerned. It thus appears that the locus in quo in this case has been held and claimed as private property for a period of forty years, and such claim not disputed by the city. Several dwelling-houses have been erected upon said premises without objection from the city authorities. Under all of those facts, we consider that the equities are clearly with the defendants, and the judgment of the lower court must be sustained. While the statute of limitations does not apply in cases of this character, the rule of equitable estoppel does apply. (See Jordan v. City of Chenoa, 166 Ill. 530, 47 N. E. 191.) It matters not whether the theory upon which the lower court rendered its decision was the correct theory or not, so long as under the pleadings and the evidence the court arrived [173]*173at a correct conclusion and entered a correct judgment. If it entered a correct judgment, the judgment will be affirmed.
The judgment must therefore be sustained, with costs in favor of respondents.