Hawks v. Creswell

• Decision Date: 21 December 1943
• Docket Number: 2272
• Citation: 60 Wyo. 1,144 P.2d 129
• Parties: WESLEY J. HAWKS and GROVER C. WARREN, Appellants in the District Court and Appellants in the Supreme Court, v. CARROLL J. CRESWELL, Appellee in the District Court and Respondent in the Supreme Court
• Court: Wyoming Supreme Court

144 P.2d 129

60 Wyo. 1

WESLEY J. HAWKS and GROVER C. WARREN, Appellants in the District Court and Appellants in the Supreme Court, v. CARROLL J. CRESWELL, Appellee in the District Court and Respondent in the Supreme Court

No. 2272

Supreme Court of Wyoming

December 21, 1943

APPEAL from District Court, Campbell County; JAMES H. BURGESS Judge.

Proceeding on application for lease of state lands by Wesley J. Hawks Grover C. Warren and Carroll J. Creswell. From a judgment of the District Court modifying and confirming as modified the approval by the Board of Land Commissioners of the State of the decision of the Commissioner of Public Lands which awarded lease of state lands upon the conflicting applications to Caroll J. Creswell, Wesley J. Hawks and Grover C. Warren appeal.

Affirmed.

Otis Reynolds, of Sundance, for appellants.

POINTS OF COUNSEL FOR APPELLANTS

Appellants Warren and Hawks have been residents of Campbell County Wyoming for twenty-eight years, and have been ranchers in the vicinity of the land applied for. They own cattle and horses. Their deeded land is near or adjoins the state land, and their leased lands adjoin the state land for several miles.

The expiring leases stood in the name of Grace S. Creswell of Sheridan, Wyoming, but she is a resident of Illinois where she died in 1939. Her estate was probated in Illinois and later adopted in Wyoming as a foreign probate.

The state leases are not mentioned in the probate of her estate. None of the Creswell lands, including the state land involved in this suit, has been operated by the Creswells for twenty-tight years. The respondent is not a rancher but sub-leases the lands involved. Respondent claims to be a resident of Wyoming since 1930 but he voted in Montana from 1930 to 1940.

The fact that Creswell's lessee, Cobb, trespassed on appellant's land is a pertinent fact on the proposition that state lands should be leased in such manner as to result in the greatest benefit to the state; and as the Wyoming Court said in Sullivan v. Meer, 58 Wyo. 90 "Probably peace among livestock men and prevention of possibly oppressive conduct," may be one of the factors to be considered.

The respondent was not the holder of the expiring leases and was not entitled to the status of an old lessee, because the title to the leases did not pass to him under the probate of his step-mother's estate. The leases were still in the name of Grace Creswell and no instruments or assignments were executed which would constitute him an old lessee. Respondent failed to prove his title to the expiring leases and these leases were never distributed to the heirs of Grace Creswell by either Illinois or Wyoming probate. The appellants submitted a higher bid than respondent and were entitled to the leases.

There is no basis for a finding that the state lands had become an integral part of the old Creswell ranch, nor is the respondent entitled to any preference on account of improvements. There was no substantial evidence to support the finding of the trial court that the respondent was a bona fide resident of Wyoming, particularly since he voted in Montana. It is elementary that an elector can only vote in the place of his residence.

Respondent violated the terms of the expiring lease and was not entitled to any preference. He made a profit on the state lands by virtue of his sub-lease to Cobb and he did not pay to the state one-half of the excess realized on the sub-lease.

Respondent changed his theory. At the trial in the lower court he took the position that appellants' bids were unreasonably high and excessive and that respondent was not required to meet the higher bid. After the lower court ordered him to meet the higher bid, he abandoned his first theory and acquiesced in the courts findings. This cannot be done. 2 R. C. L. 79.

John G. Hutton, of Sheridan, for respondent.

POINTS OF COUNSEL FOR RESPONDENT

The holder of an expiring lease has an absolute proference over other applicants, provided only that he had paid the rentals when due, has not violated the provisions of the lease, is generally qualified, and that he take the lease at the highest rental offered by any other applicant.

The state lands involved herein are so closely tied up with the deeded land that the Creswell interests would suffer great financial hardship if the leases were not awarded to them. There would be an enormous depreciation in their entire holdings.

While it is true that assignments of state leases should be recorded with the commissioner, such is not necessary where a transfer occurs by operation of law or descent and distribution. When Grace Creswell died, her Wyoming property, including the state leases, passed to her heirs by operation of law. The Commissioner properly found that the respondent was entitled to all rights of the old lessee.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This is a proceeding by direct appeal from a judgment of the District Court of Campbell County, Wyoming modifying and confirming as modified the approval by the Board of Land Commissioners of the State of Wyoming of the decision of the Commissioner of Public Lands which awarded a lease of certain state lands upon the conflicting applications of appellants, Wesley J. Hawks and Grover C. Warren, for said lands to Carroll Creswell, the respondent herein. The facts necessary to be recited in order to obtain a proper understanding of the controversy are substantially these:

One Grace S. Creswell held a lease upon 553.73 acres of state land located in Sections 7 and 8, Township 56 North, Range 76 West of the sixth principal meridian. She also held a lease upon certain other state lands totaling 1200 acres located in Sections 7, 8, 9, 16, 18, 20 and 21, Township 55 North, Range 75 West of the sixth principal meridian. Each of the leases ran for terms of five years commencing February 1, 1937 and accordingly expiring February 1, 1942. This lessee died on or about November 6, 1939 in McLean County, Illinois testate, and her sister, Belle S. Martin, was duly appointed administratrix with the will annexed by the Probate Court of that county. The party last mentioned qualified under this appointment January 8, 1940. The estate of the deceased was in regular course administered, all debts and expenses paid and a final order was entered by said probate court February 21, 1941 discharging the said Belle S. Martin as such administratrix.

Thereafter and on May 7, 1941 a certified transcript of the probate proceedings aforesaid was filed in the District Court of Campbell County pursuant to the provisions of Section 88-918 W. R. S. 1931 and the court last named was requested to make an order admitting said certified transcript to record therein and also to make certain findings of fact. Such an order was on June 9, 1941 made by said district court after due notice given, no objections thereto being filed and the court on that date directed that:

"The certified transcripts of the proceedings in the Matter of the Estate of Grace S. Creswell, Deceased, in the Probate Court of Illinois, in and for the County of McLean, heretofore filed in the office of the Clerk of this Court, be, and they are hereby admitted to record in this Court, and shall be considered and treated from this date as original proceedings in this Court and conclusive evidence of the facts therein shown; and the probate of the Estate of Grace S. Creswell, Deceased, in this County and State may be and is hereby dispensed with."

The transcript of the probate proceeding in Illinois above mentioned included a copy of the will of the said Grace S. Creswell, deceased, and its paragraph numbered "fourth" reads:

"I give, grant and bequeath the residue of my estate, both personal and real, to the following named persons: One-half (1/2) of said residue to Carroll J. Creswell. One-sixth (1/6) to George W. Creswell, One-sixth (1/6) to Robert H. Creswell, One-sixth (1/6) to Kenneth Creswell. In case one or more of the last three named do not survive me, his or their share shall be divided equally among the survivor or survivors."

It is apparent therefore that the four persons named in said paragraph were the residuary legatees of the testatrix Grace S. Creswell. This transcript was received in evidence in the district court in the present litigation without objection.

It appears also by the certified copy of the final decree in the estate of William Creswell deceased dated October 22, 1941 also received in evidence on the trial of this matter below without objection, that Carroll Creswell is the surviving son of William Creswell and that he is a life tenant of the William Creswell lands as stated in his application on file with the Commissioner of Public Lands of the State of Wyoming, as hereinafter described. Both the estates--that of William Creswell and Grace S. Creswell, the stepmother of Carroll Creswell--were apparently completely probated before Carroll Creswell made his application aforesaid for a renewal state lease upon the lands leased to his stepmother. Carroll Creswell testified that he, himself, exercised the control over the Creswell lands involved in this litigation through an oral arrangement with his nephews, George, Robert, and Kenneth Creswell. Subsequently this oral arrangement was reduced to writing under date of August 28, 1942 before the case at bar was tried in the district court of Campbell County on September 14 and 15, 1942. This written statement of the oral agreement is embodied in a so-called lease agreement between the nephews of Carroll Creswell aforesaid as parties of the first part and Carroll Creswell of the second part, this writing containing the following recitals relative to...