Cerf

Appeal from judgment and order denying a new trial.

This action was brought against the city of San Luis Obispo and its street superintendent to enjoin the opening of a street therein.

The city of San Luis Obispo, formerly the town of that name, was located upon public lands of the United States, and acquired title under an act of Congress entitled “ An act for the relief of the inhabitants of cities and towns,” passed March 2, 1867.

March 23, 1868, the legislature passed an act defining the limits of the town, and authorizing her board of trustees to enter these lands “in trust for the several use and benefit of the occupants.” (Stats. 1867-68, p. 245.) The statute authorized the board to ascertain who were the beneficiaries of the trust, and to determine conflicting claims, and directed them to execute deeds to the proper parties.

The act of Congress referred to provided that the corporate authorities in such cases might enter the lands “ in trust for the several use and benefit of the occupants thereof, according to their respective interests.”

The board, therefore, was a mere trustee for the occupants, and by the terms of the act of Congress was to execute the trusts…