Bucknum v. Johnson

• Decision Date: 20 November 1912
• Docket Number: 662
• Citation: Bucknum v. Johnson, 21 Wyo. 26, 127 P. 904 (Wyo. 1912)
• Parties: BUCKNUM v. JOHNSON
• Court: Wyoming Supreme Court

127 P. 904

21 Wyo. 26

BUCKNUM v. JOHNSON

No. 662

Supreme Court of Wyoming

November 20, 1912

ERROR to the District Court, Natrona County; HON. CHARLES E CARPENTER, Judge.

Henry A. Johnson instituted a contest before the state board of school land commissioners, seeking the cancellation of a state lease granted and executed to Clark Beck April 26 1907, which lease had been assigned by Beck to C. K. Bucknum.From the decision of the board refusing to cancel the lease the contestant appealed to the District Court.The trial in the District Court resulted in a judgment for the contestant ordering the cancellation of the lease.The contestee Bucknum, brought error.The material facts are stated in the opinion.

Reversed.

Norton & Hagens, for plaintiff in error.

The state board is vested by statute with a wide discretion with reference to leasing state lands, and the District Court, on an appeal from the board, sits as a court of review, to reverse, affirm or modify the decision of the board, and not to entirely disregard such decision as if it were vacated by the appeal.Sec. 656,Comp. Stat. 1910, must be construed and harmonized with other statutes regulating appeals from the board.Section 658 plainly indicates that appeals from the board are not to be tried de novo, but are to be tried upon the evidence taken before the board, the original papers and affidavits and other records in the case.Where the trial is de novo, the general rule, under the modern chancery practice, where the decree is vacated, is that the cause with all its incidents of pleading and evidence, is presented unchanged to the appellate court, and new issues cannot be introduced.(2 Ency.Pl. &Pr. 327;Bank v. Harvey,16 Ia. 141;Luthe v. Luthe,12 Colo. 429;Baier v. Humpall,16 Neb. 127;Bishop v. Stevens,31 Neb. 786.)Under our statute regulating this appeal the case is not tried anew as upon original process.Such an appeal differs from appeals from justice courts.The appellate proceeding seems to have been considered as a mere proceeding for review in Cooper v. McCormick,10 Wyo. 398.(See alsoBaker v. Brown,12 Wyo. 205;State ex rel. Marsh v. Board,7 Wyo. 489;Greenwood &c. Co. v. Routt, 17 Colo. 156.)

The evidence in the case fails to show that the land was occupied by the defendant in error under any color of title, that he had any improvements thereon, or that he had exercised any control over it to the exclusion of others, or had done any work on the pretended reservoir or expended money thereon.His application for water rights do not state that the ditches did or would run through land in controversy, or that any portion of it would be irrigated, or that the proposed reservoir would include any part of it.In the notice of location of the reservoir filed with the state engineer, he does not attempt to locate the lands to be used for reservoir purposes.But if he had claimed possession of the land, or had made improvements thereon by which he could claim color of title by reason of occupancy and improvements, he obtained no right which impaired the power of congress to withdraw the land from sale, or dispose of the same to other parties.(Kimball v. Waite,132 U.S. 35;Frisbie v. Whitney,9 Wall. 187;Yosemite Valley Case, 15 Wall. 77;Wells v. Pennington Co.,2 S.D. 1, 39 Am. St. Rep. 759;Gibson v. Hutchings,12 La. Ann. 545;Johnson v. Brew,43 Am. St. 172.)The evidence does not show any bad faith on the part of the land board in selecting the land, but it does show that at the time the Beck lease was granted, the board had no knowledge of the claims or pretensions of the defendant in error to the land in controversy.The fact that an applicant owns lands within one mile of lands sought to be leased gives him no better right to a lease than any other party.(State ex rel. Marsh v. Board,7 Wyo. 478.)If Beck had answered the question in the application as to the occupancy of land within one mile of the tract applied for by stating that Johnson occupied land within that distance, and had described the land so occupied, there would have been no reason for the denial of Beck's application.The only restriction upon the leasing of state lands is that the board shall lease the lands for the greatest benefit to the state.There was no other application before the board when the Beck lease was granted.If the lease was granted under such circumstances as not to result to the greatest benefit to the state, the question could not be raised by defendant in error.(State ex rel. Marsh v. Board, supra.)

No amount of good faith or good intentions can give one color of title or the right of possession to the public domain.The fact that the United States land office refused to act when Johnson offered the maps of his proposed reservoir is conclusive that the state land board, when they selected the land and leased the same, were not aware that Johnson made any claim of right to possession of the land, or that he claimed any color of title.The fact that he filed his maps after the commencement of this contest proceeding is of no effect, since the title of the state vested prior to that time.The law of this case is fully covered in Caldwell v. Bush,6 Wyo. 342, where the evidence of possession was much stronger than the evidence of Johnson's possession in the case at bar.In view of the constitutional provisions creating the land board, and the statutes governing its procedure, supplemented by the decisions of this court interpreting the same, the decision of the board should not be disturbed in the absence of fraud, or abuse of discretion on the part of the board.

No appearance for defendant in error at the time of hearing, but a brief had been filed in the cause on behalf of defendant in error by W. R. Stoll, April 7, 1911, then his counsel, contending substantially as follows:

On an appeal from the state land board to the District Court, it is the right of the appellant to have a trial de novo, but he may have a trial upon the original papers and affidavits.In this casethe statute was fully complied with, and as to the proceeding upon the trial there is no question in this case.No objection was interposed to the method of the trial, and no question was raised as to the propriety of that method.It is the duty of the courts to correct any abuse of discretion on the part of the land board when the matter properly comes before it, and on appeal the proper action for the court in order to correct such abuse is a reversal of the board's action.The statute clearly permits a trial de novo, plainly implying that the case is to be tried as if it first originated in the court.(2 Ency.Pl. &Pr. 324-325, 327;Ry. Co. v. Moody(Ala.),44 So. 94;Turner v. Mach. Co.(N. C.),45 S.E. 781;Stetson v. Bank,12 O. St. 577;State v. Tall(Wis.),14 N.W. 596;Dorr v. Birge,5 How. Prac. 323;Jussen v. Board,95 Ind. 567;Beltz v. Charleston Co.,17 S.C. 586;Cox v. Lindley,80 Ind. 327;In re. Solomon's Est., 74 S.C. 189;Reid v. Fillmore, 12 Wyo. 72.)

Occupancy with relation to public lands, means physical possession of the lands by some person, although there be no record anywhere of it or color of title of the person so occupying.(Exploration Co. v. Gray &c. Oil Co.,112 F. 4;190 U.S. 301;47 L. C.P. 1064;Oil Co. v. Clark,50 L.Ed. 550;Oil Co. v. Clarke,30 L. D. 570;Exploration Co. v. Oil Co.,104 F. 20;Oil Co. v. Oil Co.,98 F. 673;Oil Co. v. Miller,97 F. 681;Miller v. Chrisman(Cal.),73 P. 1083;Moffat v. Gold Excav. Co.,33 Colo. 142;Weed v. Snook, 144 Cal. 439.)

One of the objects of the question in an application for lease as to improvements and occupancy of other lands within one mile is to ascertain whether any third party would be interested in purchasing the same, or might have a preference right to do so.The lease in question should have been cancelled because of the untruthful answer in the application and also because there was a preference right in the defendant in error.The defendant in error had a vested right to the land for a reservoir site, and this was plainly shown by the evidence.

SCOTT, JUSTICE.BEARD, C. J., and POTTER, J., concur.

OPINION

SCOTT, JUSTICE.

This case was originally instituted as a contest before the State Board of School Land Commissioners by Johnson, the defendant in error, on June 5, 1907, seeking the cancellation of a lease made and executed by the State to Clark Beck on April 26, 1907, and by him assigned with the approval of the board to the plaintiff in error on June 27, 1907, of the south half of the northwest quarter, the southwest quarter of the northeast quarter, the west half of the southeast quarter, the northeast quarter of the southeast quarter, and the northeast quarter of the southwest quarter of section 8, township 35 north, of range 82 west of the 6th principal meridian, and situated in Natrona County, Wyoming.The board upon hearing sustained the lease in favor of Bucknum, the assignee and plaintiff in error here, and dismissed defendant in error's contest, whereupon a motion for a rehearing was submitted by Johnson to and denied by the board and the case was appealed by him to the District Court of Natrona County.The case was tried in that court and the decision and judgment was for Johnson, the lease cancelled, and Bucknum brings the case here on error.

It was sought by Johnson to appropriate a part of the land in controversy for and as a part of a reservoir site.A part of the land included in the proposed site belonged to the United States and, as shown by the findings of the board, was selected by the state in lieu of other lands after a part of the work on the proposed reservoir was done.The exact date of the selection does not appear in the record.It must,...