Cooper v. McCormick

• Decision Date: 25 June 1902
• Citation: 69 P. 301,10 Wyo. 379
• Parties: COOPER v. McCORMICK
• Court: Wyoming Supreme Court

69 P. 301

10 Wyo. 379

COOPER v. McCORMICK

Supreme Court of Wyoming

June 25, 1902

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

This was an appeal from a judgment of the District Court affirming a determination of the State Board of Land Commissioners in awarding a lease of state lands. The facts are stated in the opinion.

Reversed.

McMicken & Blydenburgh and N. E. Corthell, for plaintiff in error.

The first controversy in the case arose over the meaning of the word "renew" in Sec. 815, R. S., it being contended that this did not import a new lease at the same rental. This proposition, however, we understand to have been abandoned as it certainly ought to have been, there being no conflict in the authorities on the question, and no reasonable doubt as to the meaning of the word "renew." (Steen v Scheel, 46 Neb. 252; Daniels v. Straw, 53 F. 327; Rutgers v. Hunter, 6 John. Ch., 215; Cunningham v Pattee, 99 Mass. 252.)

The charge of fraud in obtaining the lease of 1895 is one which the lessee was certainly entitled to have formulated in some definite tangible manner and an opportunity to be heard upon it before any decision concluding his rights. It affected the validity of his original lease, which could not be decided without a hearing. (State v. Board, 7 Wyo., 487; Delles v. Bank, 7 Wyo. 73.)

The board based its action, in part, upon the finding "that Cooper is a foreigner residing in England and has never been a resident of Wyoming." It is submitted that this proposition, if true, is not a valid ground for denying him his contract right of renewal under the statute. Its bearing upon his rights is not clearly pointed out in the proceedings or in the decision, but we assume that it is intended to raise the question of alienage and consequent incapacity to take or hold real estate. There are several reasons why this objection cannot hold good. In the first place, alienage is a fact to be proved by him who asserts it. (Moore v. Wilson, 18 Tenn. 406; Gilman v. Thomson, 11 Vt. 643.) In the second place, in order to divest the title of an alien, inquest of office is necessary by the proper authorities. (Doe v. Robertson, 11 Wheat., 350; Cross v. DelValle, 1 Wall., 1; Osterman v. Baldwin, 6 Wall., 116; Bogan v. Mort. Co., 63 F. 197; Gilman v. Thomson, 11 Vt. 643.) Inquest of office in this State is a direct proceeding instituted by the prosecuting attorney of the county. (R. S., 2307.) In the third place, the State is precluded by its grant from questioning the capacity of the grantee to take and hold the thing granted. (Doe v. Robertson, 11 Wheat., 350.) In the fourth place, the leasehold interest of Cooper, being an estate for years and less than a freehold, is chattel property and not real property. (2 Blackstone, 143; In Re. Gay, 5 Mass. 419; Bisbee v. Hall, 3 Ohio 449; Brewster v. Hill, 1 N. H., 350.)

The fifth finding of the board, "that Cooper's application was not based upon any claim of right," does not seem to have any significance. Neither the statute nor the rules of the board contain any regulation or point out any particular method for the assertion of a renewal right of this character. It is not denied that Cooper held the lease or that he did file an application in the usual form for a new lease. His claim of the renewal right was seasonably made known to the board, and was fully sustained by evidence upon the hearing. It would seem to be clear, therefore, that Cooper's application was distinctly based upon his specific claim of the right of renewal, before the board acted upon the matter. If his application to amend was in any way essential it had relation to the time when his original application was first filed. (Johnson v. Woodworth, 18 Wash. 243.)

"The power to refuse to renew or lease, or to sell the lands or to lease them to any other parties," is expressly taken away by statute (R. S., 815) in all cases of the class to which this belongs. Indeed, an affirmative duty would seem to be laid upon the board, rather than upon the lessee, in such cases. (Carrington v. Harris (Tex. Civ. App.), 50 S. W., 197.)

There remains to be considered only the last proposition raised by the board, viz., that Cooper's claim for a renewal on the ground of reclamation of the land is not such a claim as would give him the right to renew under R. S., 815, because he "had not complied with R. S., 815, in irrigating 40 acres in each 160 acres of said land, nor had he provided suitable ditches for its full and complete reclamation." This objection is to be considered in the light of the evidence offered upon the hearing. The real point involved in the board's objection, though not so expressed, is that the irrigation shown by the lessee, though covering more than 200 acres of the 640 embraced in his lease, is not distributed in separate 40-acre tracts in each technical quarter section.

It would seem clear, from an examination of the legislation regulating the leasing and other disposal of the state lands, that it was the purpose and policy of the State to give a preference to settlers and those who have improved the public lands; to encourage settlement and improvement; to give the settler or lessee the full present benefit of his improvement and expenditure. This is shown (a) by the general right of renewal awarded to the lessee on condition of agreement with the board as to the valuation (R. S., 812); (b) by protecting the owner of the improvements against a lease of the land to any other person without full and fair compensation to the owner of the improvements (R. S., 817); (c) by the preference of actual settlers as purchasers in case of sale (R. S., 819); (d) by giving a preference right to the lessee on the sole condition that he irrigate and reclaim and procure a full and adequate water supply for one quarter of the land included in his lease (R. S., 815); (e) by extending a preference right to the lessee on the sole condition of his establishing a reservoir upon the land. (Laws 1901, p. 92.) These provisions clearly establish a definite policy on the part of the State, which it is the duty of the executive and the courts to follow and enforce. (State v. Forest, 8 Wash., 610.)

This legislative policy and the several provisions of the statute necessarily enter into the terms of every contract or grant made under them and the obligations of such contracts cannot be impaired even by a subsequent act of the Legislature. (Blum v. Fristoe (Tex. Civ. App.), 46 S. W., 658; Fletcher v. Peck, 6 Cranch, 87; State v. McPeak, 31 Neb. 139; State v. Thayer, 46 Neb. 137; State v. Commissioners, 4 Wis., 432.) Where preference rights to purchase are secured to improved lands such lands are excepted from the operation of general laws providing for the sale of lands to the first applicant. (Oliver v. Dupee, 16 Wash. 634.)

Where one has the preference right to buy the land the commissioner has no discretion to refuse a sale to him. (Burnett v. Winburn (Tex. Civ. App.), 25 S. W., 969; Watts v. Wheeler, 10 Tex. Civ. App., 117.)

Under analogous provisions, in the constitution and laws of Texas, to the provisions of our own statutes, before cited, it is held that, in order to bar a settler of his preference right to purchase, an affirmative duty is laid upon the commissioner, and he must make, in good faith, an offer to sell to the settler, and there must be a rejection on the part of the latter before he can be deprived of his right, and even knowledge on the part of the settler that the lands are for sale is of no significance. (Carrington v. Harris (Tex. Civ. App.), 50 S. W., 197; Baker v. Dunning, 77 Tex. 28; Perego v. White, 77 Tex. 196.)

A careful reading of the language of Section 815 in connection with the other germane provisions of the statute, and in the light of the physical conditions of the lands, the rights to be secured, the objects to be accomplished and the encouragement held out to those who would improve the state lands, can leave the court in no doubt as to the meaning of the Legislature. Even if there were anything in the language itself literally importing that the irrigation should conform to the lines of sections and subdivisions, the court, having in view the nature of the undertaking and the well known topographical conditions and the natural laws and limitations controlling the disposition and use of running water, would hold these conditions to modify and limit the meaning of the statute. "The intention of the lawmaker will prevail over the literal sense of the terms, and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the context; from the occasion and necessity of the law; from the mischief felt and the remedy in view, and the intention is to be taken or presumed according to what is consonant with reason and good discretion." (1 Kent, 64; Sutherland, Stat. Construction, 240-41.)

The language of the statute does not call for the technical interpretation insisted upon by the board. (Henshaw v. Foster, 26 Mass. 312.) The administration of the land department of the United States furnishes abundant illustration upon this point. (See R. S., U.S. 2259, 2289; Act March 3, 1877 (19 Stat., 377); Act June 14, 1878 (20 Stat. L., 113).

The history of the interpretation of the Desert Land Act is especially instructive in this connection. Not only has it been the uniform practice to allow an entry to embrace a portion of several sections, but in construing the clause requiring the entryman to reclaim "the land entered" it has never been insisted that he must reclaim it all, though the expression is clearly capable of that literal meaning. It was early ruled by the department that the non-irrigable character...