Bridgforth v. Middleton

• Decision Date: 06 March 1939
• Docket Number: 33448
• Citation: 186 Miss. 185,186 So. 837
• Court: Mississippi Supreme Court
• Parties: BRIDGFORTH v. MIDDLETON et al

186 So. 837

186 Miss. 185

BRIDGFORTH v. MIDDLETON et al

No. 33448

Supreme Court of Mississippi

March 6, 1939

APPEAL from the chancery court of Yazoo county HON. M. B MONTGOMERY, Chancellor.

Bill by R. M. Bridgforth against B. F. Middleton and others for exchange of land for school lands under the statute. From a 'decree for defendants, the complainant appeals. Affirmed.

Affirmed.

Bridgforth & Love, of Yazoo City, for appellant.

The fundamental question, it seems to us, is: What interest in rural sixteenth section lands could a lessee acquire under the sections noted, by substitution of agricultural lands adjoining the section for the use of the sixteenth section lands?

Section 6778 provides to the holder of a lease on sixteenth section lands extending over a term of fifty years or more the right to "the further use and occupation of such sixteenth section land" by substitution of adjoining land of equal value under regulations set out in the succeeding sections.

Sections 6779 provides the procedural details to be taken to make a substitution of rural lands--the manner of identification of the sixteenth section lands the further use and occupation of which is desired, and of the lands to be substituted therefor, the court proceeding to be taken in making the substitution, including the method of determining the valuation of the respective tracts.

Section 6780 provides the procedural details where substitution of urban lands for further use and occupation is desired.

Section 6781 provides for the entry of a decree by the court, when equal valuation, as prescribed by the statute, has been found in the respective tracts, vesting title in the state to the lands offered in substitution just as title is held by the state to sixteenth section lands, and "the use occupation, possession and full control of the sixteenth section lands in the person seeking the substitution for and during such time as title to lands tendered to . . . the state in . . . substitution of sixteenth section land remains vested in the state."

Section 6782 provides such person shall pay all costs of the proceedings.

The court will note the title to the lands offered in substitution vests in the state, while use and occupancy of the sixteenth section land remains in the lessee, offering the substitutionary lands, only so long as title to the substituted lands remained vested in the state. This use terminates when the state's title to the substituted land fails, thus protecting the state against any loss in the transaction and precluding the lessee, substituting lands under the statutes cited for the use of sixteenth section lands, by the termination of the right to the use thereof on the failure of the state's title to the substituted lands, from any ownership in or final right to the property itself. The state's title in the sixteenth section lands whose use and occupancy by the lessee acting under the statutory privilege is never divested and is not to be compared with a reversion, much less a mere possibility of reverter, for no title whatever to the sixteenth section lands has passed, and the "further use and occupancy" thereof is a mere privilege--irrevocable, it is true, so long as title remains in the state to the substituted lands, but still, as to the quality or quantity of right, no more than an irrevocable license to use and occupy the land during the time the state holds the title to the adjoining tract--which presumptively fully compensates for its use.

Our court has aptly construed just such a right, as more than a license revocable by the owner.

Frederic v. Mayers, 89 Miss. 127, 43 So. 677.

Where a license to use property for specific purposes is not specifically restricted, and is coupled with a grant or interest necessary to the possession and enjoyment of the rights acquired, the license is irrevocable so long as the interest continues.

37 C J. 296.

Such a license or right to the use and occupancy of lands could not be a sale, nor could it be a lease within the condemnation of section 211 of the Constitution, if the words sale and lease be taken in their ordinarily accepted legal meaning; and to so include it within either word requires a construction of the section so as to embrace within its prohibition more than was prohibited by the words alone.

It might well be said here, bear in mind that the Legislature had unlimited power, before the Constitution, to do with sixteenth sections as it saw fit. This was the effect of the holding in Jones v. Madison County, 72 Miss. 777, 18 So. 87, where it was finally determined that title to sixteenth sections passed to the state by reason of the survey and designation of the land and that no title or control thereof remained in the United States after the state, in which the lands were located, was organized. All leases and sales made in conformity with the state law than existing prior to the Constitution of 1890 were therefore valid; and no case subsequent to Jones v. Madison County has ever questioned that right.

Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1.

Just so far then as the Legislature is not prohibited by the terms of section 211 of the Constitution and by the necessary implications therefrom, it still may enact laws governing sixteenth sections. Laws passed for the selling of timber gravel and acid iron earth from sixteenth section lands and for the unrestricted lease of such lands for oil, gas, and mineral purposes have been enacted by the Legislature and have been held constitutional or remain upon the statute books unquestioned. Sections 6761 and 6762-3 of the Code of 1930. The right has been delegated to railroads organized under the laws of the state to acquire and enjoy rights of way over lands belonging to the state (which under Jones v. Madison County, supra, includes sixteenth section lands). Section 6085 of the Code of 1930. No reason can exist why rights to other uses of the soil than those above listed may be condemned while they are permitted.

The Chancellor's opinion grounds his decision to the contrary upon the construction placed on the prohibitions of Section 211 by the cases of Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1; and J. J. Newman Lbr. Co. v. Robertson, 131 Miss. 739, 95 So. 244.

The statements contained in both the Dantzler case and the Newman case, on which the chancellor based his decision in the instant case, that Section 211 precludes the enactment of a statute permitting the state to part with the use and occupation of sixteenth section lands so long as title to lands substituted therefor remains in the state, are not a part of the opinions in those cases, necessary to the actual decisions there involved. Not only then is the decision below on the ground noted based upon dicta, but it is directly in conflict with the actual decision of this court in Gulf Refining Co. of La. v. Terry, 163 Miss. 869, 142 So. 457.

There is no authority for the holding of the lower court that a statute may not constitutionally grant the right to use and occupy sixteenth section lands over an indeterminite period of time, in a manner not amounting to a sale, because of the terms of Section 211 of the Constitution; and there is direct authority that it may in the Terry case.

When the Legislature had powers precedent to the Constitution it will continue to enjoy them to the full extent as before, up to the point of restriction thereby.

State v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340.

The appellant contends that Sections 6778 to 6782 (and the scheme therein provided to substitute the full title to adjoining lands for the use and occupation of sixteenth section lands, constituting the homestead of the holder of an unexpired lease to the sixteenth section lands, during so long a time as title to the adjoining lands remain in the state) in no wise infringe upon Section 211 of the Constitution, because the rights of use and occupation provided for do not constitute a sale of the sixteenth section lands and amount to only an irrevocable license to use the lands, at most an easement of use, during the period the title to the adjoining land remains in the state, and that the license to use, or even the easement of use so inuring to the holder of the unexpiring lease, is not within the terms of the constitutional prohibition.

That the rights conferred by the statutes do not constitute a sale of the land, is axiomatic, if title thereto be not passed by the proceedings it provides for; and no title could pass in the proceedings contemplated.

Jones v. Madison County, 72 Miss. 777, 18 So. 87; Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1.

The rights in sixteenth section lands which the statutes permit are irrevocable licenses, at most easements, continuing during that period of time in which title remains in the state to the adjoining lands offered in substitution and accepted for the state by a decree of the chancery court.

Frederic v. Mayers, 89 Miss. 127, 43 So. 677; Gulf Refining Co. v. Terry, 163 Miss. 869, 142 So. 457; Minor, Real Property, Sections 132 and 133, 93, 96 and 27.

Constitutions prior to that of 1890 left with the Legislature the full and complete dominion over sixteenth section lands. As shown in the Dantzler case the Legislature abused this power by leasing the lands for ninety-nine years for a small gross sum. At the time such leases were made, the lands were generally wild and uncleared, and of small value, but by 1890 they had been largely cleared and had acquired a value which rendered them an object of real concern, and, too, public interest in education had grown with the years, all just as the immortal Jefferson had forseen. It was to remedy that abuse and to preclude its future...