Beck, C. J.
It is assigned for error that the court erred in entertaining the application for a temporary writ of mandamus, because the remedy of petitioner, if any, was by a proceeding in equity. In support of the remedy selected by the plaintiff, we are referred to section 333, page 102, of the Civil Code, which provides that “ the writ of mandamus may be issued * * * to any inferior tribunal, corporation, board, officer, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Also to the following quotation from High, Extr. Rem. § 80 (and to many other authorities of similar import), viz.: “Whenever a specific duty is required by law of a particular officer, unattended with the exercise of any degree of official judgment or element of discretion, and on the performance of which individual rights depend, mandamus is the appropriate remedy for the failure or refusal to perform the duty.” Another statement of the rule, not inconsistent with the foregoing, but more pertinent to this case and supported by authorities cited, was laid down by this court in People v. Spru[199]*199ance, 8 Colo. 319, as follows: “The writ of mandamus is •said to be a high prerogative writ, which should never issue unless the party applying for it shall show a clear legal right to have the thing sought by it done in the manner and by the person sought to be coerced. It must not only be in the power of such person, but it must be his duty to perform the act sought to be done.”
1. Leaving out of view, for the present, the validity of the plaintiff’s claim, did the law cast any duty upon the •corporate authorities of the town of Aspen, or were they invested with power to convey to claimants title to the lots, blocks and parcels of land comprising said town site? If not, the remedy by mandamus is not available, and it is immaterial whether a remedy in equity existed or not.
It would certainly appear, from the facts and circumstances attending the entry of this town site, and the issue of the patent therefor, as the same are set forth in the agreed statement of facts, and appear in the patent itself, that the patent might have issued direct to the •corporate authorities, instead of the county judge. Such would seem to have been the view and direction of the honorable secretary of the interior at the time the entry was held for cancellation. Whether his order was misinterpreted, or whether by inadvertence the patent was issued to the county judge instead of the corporate authorities, we have no means of ascertaining, but the title to the town site was clearly conveyed to J. W. Deane, in his official capacity as county judge, in trust, as required by the acts of congress. The conveyance was likewise pursuant to the entry made by him in the United States land office, which is stated in the patent to have been made “in trust for the inhabitants of said town oj Aspen.” The granting clause of the patent is in the usual form, conveying the title to said county judge, “and to his successors and assigns, in trust.” This language has always been held, so far as we are advised, to [200]*200be equivalent to a grant to the officer named, in his official capacity, and to his successors in office, in trust for the use and benefit of the cestui que trust. The title of the property in question never having vested in the corporate authorities of said town, it follows that it was not in their power, and consequently not their duty, to execute the deed demanded by the plaintiff and required by the judgment of the court below. If this proposition be correct, the‘district court was without jurisdiction to award the peremptory writ.
The patent must be construed according to the acts of congress authorizing its issuance; and while the recitals therein set forth may indicate the views of the government officers respecting the rights of parties, the form and manner of executing the patent must be in conformity to the laws of congress. McGarrahan v. Mining Co. 96 U. S. 316. The congressional act of March 2, 1867, has, in numerous cases, been held to be substantially similar to the original act of May 23, 1844. It differs as to who may be trustee of a town site in this: that it permits the corporate authorities of an incorporated town to enter the town site, and, if not incorporated, the judge of the county court, “in trust for the several use and benefit of the occupants thereof,” while the former act permitted the entry to be made by the county judge in all ’ cases, but in the same manner and for the same purposes. The forms of the patents under both acts are substantially the same; limiting the trust estate to the officer making the entry (designating him by his official title), “ and to his successors and assigns, in trust.”
The proper construction of the words “limiting the trust ” was considered in Smith v. Pipe, 3 Colo. 187, 196. Justice Wells, who delivered the opinion in the case, says: “It cannot be doubted .that the purpose of the statute is to confer the estate upon the county judge, or the corporate authorities in their official and politic capacity, and to limit it to the successors in office until the trust [201]*201should be finally exhausted.” This opinion further holds that the power to take the grant as trustee is vested in the officer, and not in the individual, and that it is unnecessary in the patent to designate the incumbent by his proper name.
The trust in the present case having vested in the county judge, by the issue of the patent to that officer, and the grant being limited therein in the usual manner, “and to his successors and assigns in trust,” it follows that the successors mentioned are the successors in office, notwithstanding the previous recitations in the patent, for the act of congress does not authorize any other successors. In holding that the legal title to the town site vested, under the grant, in the county judge and his successors in office, in trust for the occupants thereof, it does not necessarily follow that the trust must continue to be executed by the said successors until the trust estate is extinguished. This grant was made under peculiar circumstances, and possibly the language employed in the granting clausé of the patent does not express the will of the grantor on this point. If it should be made to appear, in a proper proceeding, with proper parties thereto, that the officers of the government, having jurisdiction to decide what local official or officials should be clothed with power to execute this trust, intended by their official action herein that the corporate authorities of the town of Aspen should execute the trust, that intent may still be rendered and made effective as to the unexecuted portion, of the trust. Silver v. Ladd, 7 Wall. 219; Johnson v. Tousley, 13 Wall. 72.
The patent cannot be collaterally attacked, and its validity must be assumed in the present action. For the purposes of this case, it must be treated as issued to the proper party, and its legal effect determined accordingly. Since the county judge is the patentee, and, as above shown, the statute,- as construed by this court, names his successors in office as the successors in trust, the patent [202]*202cannot be regarded in this case as changing the latter succession to the town authorities.
2.
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Beck, C. J.
It is assigned for error that the court erred in entertaining the application for a temporary writ of mandamus, because the remedy of petitioner, if any, was by a proceeding in equity. In support of the remedy selected by the plaintiff, we are referred to section 333, page 102, of the Civil Code, which provides that “ the writ of mandamus may be issued * * * to any inferior tribunal, corporation, board, officer, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Also to the following quotation from High, Extr. Rem. § 80 (and to many other authorities of similar import), viz.: “Whenever a specific duty is required by law of a particular officer, unattended with the exercise of any degree of official judgment or element of discretion, and on the performance of which individual rights depend, mandamus is the appropriate remedy for the failure or refusal to perform the duty.” Another statement of the rule, not inconsistent with the foregoing, but more pertinent to this case and supported by authorities cited, was laid down by this court in People v. Spru[199]*199ance, 8 Colo. 319, as follows: “The writ of mandamus is •said to be a high prerogative writ, which should never issue unless the party applying for it shall show a clear legal right to have the thing sought by it done in the manner and by the person sought to be coerced. It must not only be in the power of such person, but it must be his duty to perform the act sought to be done.”
1. Leaving out of view, for the present, the validity of the plaintiff’s claim, did the law cast any duty upon the •corporate authorities of the town of Aspen, or were they invested with power to convey to claimants title to the lots, blocks and parcels of land comprising said town site? If not, the remedy by mandamus is not available, and it is immaterial whether a remedy in equity existed or not.
It would certainly appear, from the facts and circumstances attending the entry of this town site, and the issue of the patent therefor, as the same are set forth in the agreed statement of facts, and appear in the patent itself, that the patent might have issued direct to the •corporate authorities, instead of the county judge. Such would seem to have been the view and direction of the honorable secretary of the interior at the time the entry was held for cancellation. Whether his order was misinterpreted, or whether by inadvertence the patent was issued to the county judge instead of the corporate authorities, we have no means of ascertaining, but the title to the town site was clearly conveyed to J. W. Deane, in his official capacity as county judge, in trust, as required by the acts of congress. The conveyance was likewise pursuant to the entry made by him in the United States land office, which is stated in the patent to have been made “in trust for the inhabitants of said town oj Aspen.” The granting clause of the patent is in the usual form, conveying the title to said county judge, “and to his successors and assigns, in trust.” This language has always been held, so far as we are advised, to [200]*200be equivalent to a grant to the officer named, in his official capacity, and to his successors in office, in trust for the use and benefit of the cestui que trust. The title of the property in question never having vested in the corporate authorities of said town, it follows that it was not in their power, and consequently not their duty, to execute the deed demanded by the plaintiff and required by the judgment of the court below. If this proposition be correct, the‘district court was without jurisdiction to award the peremptory writ.
The patent must be construed according to the acts of congress authorizing its issuance; and while the recitals therein set forth may indicate the views of the government officers respecting the rights of parties, the form and manner of executing the patent must be in conformity to the laws of congress. McGarrahan v. Mining Co. 96 U. S. 316. The congressional act of March 2, 1867, has, in numerous cases, been held to be substantially similar to the original act of May 23, 1844. It differs as to who may be trustee of a town site in this: that it permits the corporate authorities of an incorporated town to enter the town site, and, if not incorporated, the judge of the county court, “in trust for the several use and benefit of the occupants thereof,” while the former act permitted the entry to be made by the county judge in all ’ cases, but in the same manner and for the same purposes. The forms of the patents under both acts are substantially the same; limiting the trust estate to the officer making the entry (designating him by his official title), “ and to his successors and assigns, in trust.”
The proper construction of the words “limiting the trust ” was considered in Smith v. Pipe, 3 Colo. 187, 196. Justice Wells, who delivered the opinion in the case, says: “It cannot be doubted .that the purpose of the statute is to confer the estate upon the county judge, or the corporate authorities in their official and politic capacity, and to limit it to the successors in office until the trust [201]*201should be finally exhausted.” This opinion further holds that the power to take the grant as trustee is vested in the officer, and not in the individual, and that it is unnecessary in the patent to designate the incumbent by his proper name.
The trust in the present case having vested in the county judge, by the issue of the patent to that officer, and the grant being limited therein in the usual manner, “and to his successors and assigns in trust,” it follows that the successors mentioned are the successors in office, notwithstanding the previous recitations in the patent, for the act of congress does not authorize any other successors. In holding that the legal title to the town site vested, under the grant, in the county judge and his successors in office, in trust for the occupants thereof, it does not necessarily follow that the trust must continue to be executed by the said successors until the trust estate is extinguished. This grant was made under peculiar circumstances, and possibly the language employed in the granting clausé of the patent does not express the will of the grantor on this point. If it should be made to appear, in a proper proceeding, with proper parties thereto, that the officers of the government, having jurisdiction to decide what local official or officials should be clothed with power to execute this trust, intended by their official action herein that the corporate authorities of the town of Aspen should execute the trust, that intent may still be rendered and made effective as to the unexecuted portion, of the trust. Silver v. Ladd, 7 Wall. 219; Johnson v. Tousley, 13 Wall. 72.
The patent cannot be collaterally attacked, and its validity must be assumed in the present action. For the purposes of this case, it must be treated as issued to the proper party, and its legal effect determined accordingly. Since the county judge is the patentee, and, as above shown, the statute,- as construed by this court, names his successors in office as the successors in trust, the patent [202]*202cannot be regarded in this case as changing the latter succession to the town authorities.
2. The remaining errors assigned question the right o£ the plaintiff to a conveyance of any portion of the large body of lots and blocks claimed by it. The plaintiff’s petition contains no allegation that the right of the plaintiff to a conveyance of any portion of these lands has ever been adjudged in its favor. The contrary inference may be drawn from the averments of the petition, that the statement of the plaintiff’s claim was made to County Judge Deane, and, although often requested, neither he nor his successors in office, King and Rucker, have ever conveyed to plaintiff the said lots, blocks, pieces and parcels of land, or any part thereof. It is not averred in the petition that any statement of the plaintiff’s claim was presented to the corporate authorities for adjudication. There is no averment in the petition, nor any mention or admission in the agreed statement of facts on which the case was tried, that the plaintiff was in any manner an occupant of any portion of the lands so claimed; nor is there any statement therein that the plaintiff is, or ever has been, a resident of said town of Aspen. On the contrary, it is affirmatively alleged in the answer of the respondents that the plaintiff never has occupied any portion of the lands claimed in the petition; that the plaintiff corporation is composed of persons not inhabitants of said town of Aspen, nor residing therein, nor owning or occupying any lot or lots in said town, and that it is endeavoring to acquire the title and possession of said lots, for speculative purposes. These averments are neither traversed by a reply nor refuted by proof.
The pleadings and the proofs, on this point, therefore, present the same question passed upon at the present’ term in the case of Town of Aspen v. Rucker, ante, p. 184. It was there adjudged, upon the admissions of the pleadings to that effect, that the Aspen Town & Land Com[203]*203pany never was an occupant or in possession of any portion of the town site of Aspen; that it was not a beneficiary of the trust, and acquired no right to a conveyance by its statement of claim. and demand for conveyance. The decisions of the courts upon this point are clear and decisive that no claimant of lots comprising a portion of a town site is a beneficiary of the trust, or entitled to a conveyance, without proof of actual occupation, either by the claimant or his grantors, whether such claimant be an individual or a town company. Cook v. Rice, 2 Colo. 131-136; Clayton v. Spencer, 2 Colo. 378-380; Town Co. v. Maris, 11 Kan. 128; Sherry v. Sampson, 11 Kan. 611, 615; Clark v. Titus, 11 Pac. Rep. 312, 314.
It was held in Hussey v. Smith, 99 U. S. 20, that an occupant has the power to sell or convey his possessory right, and that the purchaser from him may acquire such right to the occupancy as to entitle him to a judgment for a conveyance; but it is not contended that the plaintiff in this case holds any such claim or conveyance. But the plaintiff bases its right to a conveyance of the real estate described in its petition (the same exceeding one hundred blocks and parts of blocks of said town site) upon a compliance with the provisions of the state statute of March 1, 1881 (Laws of 1881, p. 23?). In its own language, the statement of the claim was: “That the specified right, interest and estate which * * * petitioner claimed in the parts and parcels of land described in the statement in writing, and hereinafter particularly set forth and described, was the right to occupy and possess such parcels, parts and tracts of land, and to be entitled to receive a deed from such county judge, conveying to it the legal title to such parcels or parts of land, and the right to and to be the owner of the title in fee thereto.” It also relies upon the admitted fact that it “ was the only person, company or association of persons which filed on the lots described in the complaint herein, in the office of [204]*204J. W. Deane, as county and probate judge, and that no filings were tendered by any one else covering said lots or parcels of ground.”
Section é of the state -statute requires that “each and every person or association or company of persons claiming to be an occupant or occupants, or to have possession, or to be entitled to the occupancy or possession, of such lands, or to any lot, block, share or parcel thereof, shall, within ninety days after the first publication of such notice, in person, or by his, her or their duly authorized agent or attorney, sign a statement in writing containing an accurate description of the particular parcel or parts of land in which he, she or they claim to have an interest, and the specific right, interest or estate therein which he, she or they claim to be entitled to receive, and deliver the same into the office of such corporate authorities or judge; and all persons- failing to deliver such statement within the time specified in this section shall be forever barred the right of claiming or recovering such lands, or any interest or estate therein, or in any part, parcel or share thereof, in any court of law or equity.” Section 1 makes it the duty of the corporate authorities or judge who shall make the entry to dispose of and convey the title to such land, or to the several blocks, lots, parcels or shares thereof, to the persons described in the act, and in the manner specified therein. Section 2 requires the trustee, by a good and sufficient deed of conveyance, to “grant and conve3r the title to each and every block, lot, share or parcel of the same to the person or persons who shall have, possess or be entitled to the possession or occupancy thereof according to his, her or their several or respective rights or interest in the same, as they existed in law or equity at the time of the entry of such lands, or to his, her or their heirs or assigns.” There are other provisions, as in section 27, requiring deeds to be executed to claimants, but all are limited to person. association and company of persons entitled to the lots and blocks.
[205]*205Now, what interest in the numerous lots and blocks of this town site so claimed by it has the plaintiff disclosed? By virtue of what acts done by it does it become entitled to deed in fee-simple? It specifies no act save the filing of its claim within the ninety days, couched iu the phraseology of the statute, and tender of fees and charges. It sets up no claim as heir or assignee of an occupant, does not claim to be or to have been an occupant of any part of the real estate, or even a resident of the town, and, when charged by the respondent with an attempt to acquire the title to this body of lots and blocks for speculative purposes, fails to even deny the charge.
We do not think the act of the legislature will bear the interpretation placed on it by the petitioner and its counsel. Although not framed as perspicuously as it might have been, it does not seem capable of the construction sought to be placed upon it. But if it did, it would be in plain violation of the intent and purposes of the act of congress, which has frequently been construed to include, as beneficiaries of the trust, occupants of the town site only.
In Lecher v. Chapin, 12 Nev. 71, the court remark, in discussing this point: “ In the consideration of this question we must not lose sight of the fact that the act of congress was intended for the benefit and protection of the actual citizens of the town against those making claim to the land for purely speculative purposes; ” citing In re Selby, 6 Mich. 193; Town Co. v. Maris, 11 Kan. 128; Jones v. City of Petaluma, 38 Cal. 397.
In Town Co. v. Maris, supra, the court, in discussing the claim of a town company, announced the following doctrine, which is quoted with approval in Lecher v. Chapin, supra, and in Clark v. Titus, 11 Pac. Rep. 312: “ The legislature, in prescribing rules for the execution of the trust, cannot change it by substituting other parties to receive its benefits than those indicated by the law of congress. If individuals or town companies [206]*206choose to lay out lands for a town site, and make money by the means, there is.no law to prevent it; but they cannot pre-empt the public domain for that purpose under the law of congress. The law was made for the benefit of the occupants of the town, and not for speculators.” See, also, Carson v. Smith, 12 Minn. 560 (Gil. 458); Hussey v. Smith, Utah, 129; Treadway v. Wilder, 8 Nev. 98, 99; Phillpotts v. Blasdel, id. 67.
We are of opinion that the court erred in entertaining the application for the peremptory writ of mandamus, and in awarding said writ, for the reasons above given. The judgment is reversed and the cause remanded, with directions to dismiss the proceeding'.
Reversed.