State, Cross v. Bd. Ld. Comrs. , 50 Wyo. 181 ( 1936 )

ON PETITION FOR REHEARING A petition that a rehearing be granted in this case has been filed by the relator. It consists largely of a reargument of the points urged in his brief and at the hearing. All these were given careful review before the opinion in the cause was filed. Relator has also included in his argument aforesaid a statement of alleged errors committed by the court in announcing its views on the legal points presented. We are obliged to say that he has failed to convince us that we were mistaken.

No amount of argument can cloak the outstanding and clearly established facts in this litigation that the State Board of Land Commissioners did not intend to sell the mineral rights in the land here involved to Kennedy, the original purchaser; that Kennedy himself never intended to buy them and voluntarily stated so repeatedly over his signature; and consequently that to order a delivery of the patent as sought by relator would be to make and enforce a contract to which the parties making it themselves never gave their assent.

Reliance is especially placed by relator upon certain federal decisions, particularly Burke v. Southern Pacific Railway Co.,234 U.S. 669, 34 Sup. Ct. 907, 58 L.Ed. 1527, dealing with the power of the United States Land Department officials to insert reservations in patents issued under the national land laws. We do not consider them in point. Relative to the federal public lands, the land officers of the United States do not, like the State Board of Land Commissioners concerning state school lands, have the direction, control, lease and disposal of such lands. That authority reposes in Congress. The federal land officials have no discretion allowed them as to the transfer of such lands. In issuing a patent they function in a ministerial capacity solely and are powerless to change the legal rights of the parties. When an applicant has complied with the law governing the particular entry he makes, they must pass title to him. They cannot refuse to sell the land. Relator has at all times conceded, and correctly, we think, that the Board aforesaid may sell or decline to sell the lands in its care, as it deems to the best advantage for the State. It initiates the sale proceedings, not the applicant, as under the federal system.

In this connection, too, it may be noted as extremely significant that under the provisions of the law in force at the time this contract was made (Wyoming Compiled Statutes, 1910, Sections 602, 627), the Board was given legislative authority not only to lease or sell, but also to "dispose of" the lands under its control. As said by the Supreme Court of the United States in Phelps v. Harris, 101 U.S. 370, 25 L.Ed. 855: "The expression `to dispose of' is very broad, and signifies more than `to sell.'" In American Home Missionary Society v. Wadhams, 10 Barb. 597, the word "dispose" was declared to be "sufficiently comprehensive in its meaning to include every possible mode of alienation or disposition of property." The broad authority thus vested in the State Board of Land Commissioners with reference to these lands thus becomes perfectly apparent.

In State ex rel. Otto v. Field, 31 N.M. 120, 241 P. 1027, a case which relator apparently considers as one supporting his views in the matter before us, but which we think is an authority emphatically against him, the appellee, Otto, presented contentions much like those urged here. He sought by mandamus to compel Field as Commissioner of Public Lands of New Mexico to issue to him a deed to certain state lands without the insertion of a reservation of the minerals contained therein. The authority given the Commissioner by law provided that he, like our State Board of Land Commissioners, should "have the direction, control, care and disposition of all public lands under the provisions of the Act of Congress relating thereto and such regulations as might be provided by law." He, like our State Board aforesaid, was also authorized by law to grant rights of way and easements of various kinds across or upon the state lands.

Disapproving a contention made by the appellee similar to that urged by relator, as to the meaning of the word "land" in the applicable statutory law, the court said:

"If appellee's contention is correct that, upon the acceptance of his bid and the payment of the first installment under his contract and the receipt therefor, he is not only the equitable owner of the lands from the center of the earth to the topmost heavens, but also has complete dominion thereover, subject only to defeasance by failure to liquidate the other installment payments upon his contract, and that the commissioner had no authority to reserve the minerals, oil and gas to the state, such minerals, oil and gas belonging to purchaser, subject only to forfeiture for fraud or for the failure to make installment payments on his 30-year contract, we would face the conclusion that he could, in such enjoyment of the lands, explore for oil and gas immediately after the acceptance of his bid and issuance to him of a receipt for his first installment payment under the contract, and if he were fortunate in making a discovery of oil, might drain the lands thereof and then abandon his contract. This would accomplish a result which we do not believe was intended by the Legislature and which, if necessary, the rules of statutory construction authorize us to avoid."

Disposing of another point akin to that presented at bar, this language was used:

"Appellee also contends that, where the Constitution and statute conveying powers on the commissioner fail to specifically authorize him to reserve the minerals, he has no such power. We do not agree to that narrow construction of the powers of the commissioner. If it was intended by the Constitution makers and the Legislature to cover every contingency, they would not, at the time of giving specific directions, also repose general jurisdiction or power of control and disposition over the state lands."

The court further said:

"The commissioner has been specifically directed by the Legislature to lease the known minerals, to make leases and contracts to explore for the unknown minerals, to grant rights of way and easements over and across and upon state lands for eight specific purposes, and for other purposes which are left to the discretion of the commissioner. If, in the exercise of this discretion, the commissioner has made leases, contracts, and made grants of rights of way and easements, he would be powerless to sell the land, if he must sell it in its entirety or not at all. If the commissioner might incumber the lands with leases, contracts, grants of rights of way, and easements before the land is sold, and then afterwards sell the land subject to these incumbrances, we are unable to see why he may not, in case of sale of land, reserve the right to later incumber it, if the purchaser is willing to buy with such a reservation. The commissioner is specifically, by section 5233 of the Code, directed to insert in leases of state lands for grazing or agricultural purposes a clause reserving the right to execute leases for mining purposes thereon or for the extraction of petroleum, natural gas, salt, or other deposits therefrom, and the right to sell or dispose of any other surface products of such lands other than grazing, agricultural, or horticultural products; also a clause reserving the right to grant rights of way and easements for any of the purposes mentioned in section 5231. It being apparent that it was the policy of the Legislature to reserve to the state the right to execute leases for the extraction of petroleum, etc., it seems reasonable that the commissioner could also make the same reservation in a contract for the sale of agricultural or grazing lands sought to be purchased, and in which it was not then known that any mineral products existed."

The judgment of the lower court awarding the writ of mandamus was accordingly reversed, with instructions to discharge the writ.

We realize perfectly how strongly counsel feel that we are mistaken in our disposition of this case. Their zeal in supplying us with an elaborate brief in support of the petition for a rehearing establishes that. However, we are quite unable to agree with them, being of the opinion that the true purport of our law governing the matter in hand will be best maintained and the rights of the parties involved more equitably preserved by an adherence to the result heretofore announced.

The petition for a rehearing will therefore be denied.

Rehearing denied.

KIMBALL, Ch. J., and BLUME, J., concur.