Kerrigan v. Miller

• Decision Date: 05 December 1938
• Docket Number: 2074
• Citation: 53 Wyo. 441,84 P.2d 724
• Parties: KERRIGAN v. MILLER, GOVERNOR, ET AL
• Court: Wyoming Supreme Court

84 P.2d 724

53 Wyo. 441

KERRIGAN v. MILLER, GOVERNOR, ET AL

No. 2074

Supreme Court of Wyoming

December 5, 1938

APPEAL from the District Court, Niobrara County; HARRY P. ILSLEY Judge.

Proceeding by Harold E. Kerrigan against Leslie A. Miller, Governor of the State of Wyoming, and others, as the State Board of Land Commissioners, and another, to review a decision of the Board in re conflicting claims of Harold E. Kerrigan, and H. E Zerbe for a grazing lease upon section 36, township 32 north, range 61 west. From an adverse judgment, plaintiff appeals.

Reversed, with direction.

For the appellants, there was a brief by Thomas O. Miller, of Lusk; Ray E. Lee, Attorney General; Thos. F. Shea, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Miller.

The question submitted in this appeal is whether the State Board of Land Commissioners has any discretion in changing the terms of a grazing lease, wherein the lessee is seeking a renewal of a lease, granted to him on two prior occasions, wherein the applicant is a dummy acting for a corporation, that is probably disqualified to receive or take the lease. The applicant for a renewal of the lease is acting for the benefit of the Van Tassell company. He owns no lands or livestock and has never even seen the lands. The acts of Kerrigan and the Van Tassell Company are in violation of Section 91-113, R. S. The State Land Board, rather than the courts, has the direction, control, disposition and care of state lands. Section 3, Article 18 of the Wyoming Constitution. The statute, Chapter 91, Wyoming Revised Statutes is intended to carry out the terms of said constitutional provision. State v. Board, 20 Wyo. 162. The granting of the lease to Zerbe was based on the statute Sec. 91-113, R. S. The case of Mercer v. Thorley, 48 Wyo. 141, did not overrule the Huckfeldt case. The Board has a large discretion. State v. Board, 7 Wyo. 478; Buckman v. Johnson, 21 Wyo. 26. Kerrigan is not a bona fide applicant for a lease. The Van Tassell company is the real party in interest.

For the respondent, there was a brief and an oral argument by J. A. Greenwood of Cheyenne.

Harold E. Kerrigan, the holder of an existing lease, claimed a preference under Section 91-113, R. S. H. E. Zerbe was a new applicant. The Commissioner of public lands granted both applications in part and rejected both in part. The trial court reversed the action of the Commissioner. Paragraph 5 of the Act of Admission, as amended, authorizes the state to lease state lands for ten years. Chapter 34, Laws 1935, Chapter 49, Laws 1937, Sec. 91-110, R. S. 1931. By Chapter 79, Laws of Wyoming, 1890-1891, lease renewals were placed within the discretion of the land board. See also Chapter 82, Laws 1910. From the date of the decision in the Huckfeldt case, March 26, 1912, 20 Wyo. 162, to the adoption of Chapter 108 of the Laws of 1929, the legislature took no action on the subject of preference rights to grazing lease renewals. Appellees believe that the question here is whether the Land Board can ignore the language of Section 91-113, R. S. Kerrigan is qualified to lease state school lands. He had not violated the terms of his prior leases. He had not attempted to deceive the state officials by fraudulent methods in securing his leases. The land commissioner disregarded the plain words of the Statute, after concluding that the appellant Zerbe needed additional pasturage. He relied upon the Huckfeldt case, concluding that it released state officials from following Section 91-113, R. S. Appellant contends that the Van Tassell company is the benefactor under the Kerrigan lease. Such contention is without merit. Appellant's contention that Kerrigan has no personal use for the land is also without merit, in view of the statute. Appellant's contention that Zerbe needs the land to develop his own adjacent lands is likewise without merit. The opinion in the Huckfeldt case is not a construction of the language of Section 91-113, R. S. 1931. The decisions relied upon by appellant as justifying a reversal of the decision of the trial court were all pronounced prior to the enactment of Section 18, Chapter 108, Laws 1929. The case of Mercer v. Thorley, 48 Wyo. 141 is against the contentions of appellant. Section 91-109, R. S. gives a present lessee a preference over all others to lease the land covered by the expiring lease. The Mercer case is cited in a later opinion in the case of Wyodak Chemical Company v. Board (Wyo.) 65 P.2d 1103, holding that a present lessee has a superior right which must be considered in disposing of conflicting applications. The Van Tassell Company and its relation to appellee in the use of the leased lands are not material to a determination of the question presented. The decision of the trial court should be affirmed.

BLUME, Chief Justice. RINER and KIMBALL, JJ., concur.

OPINION

BLUME, Chief Justice.

The State issued a lease to Harold E. Kerrigan, the respondent herein, for Section 36, Tp. 32, Range 61, Niobrara County, Wyoming, to run from January 1st, 1932, to January 1st, 1937. On November 16, 1936, he applied for a renewal of the lease. On December 31, 1936, H. E. Zerbe, the appellant herein, applied for a lease on the same land. On February 13, 1937, the commissioner of public lands decided to divide the land between the two applicants, giving to Kerrigan a lease for the west half of the section and to Zerbe a lease for the east half thereof. He found that Kerrigan had not violated the terms of the expiring lease and that both applicants were qualified to apply for the new lease. On April 8 or 9, 1937, the State Board of Land Commissioners confirmed the action of the commissioner, Zerbe to make satisfactory arrangements with the owner as to the improvements on the land leased to him. On April 27, 1937, Kerrigan appealed from the decision allowing Zerbe a lease for the land above mentioned. Subsequently a stipulation was entered into by and between the parties herein, which so far as material herein, and additional to some of the facts hereinbefore stated, is as follows: Both Kerrigan and Zerbe are qualified under Section 91-109, Rev. St. 1931, to lease state lands, the former being a citizen of and residing in Laramie County, Wyoming, the latter being a citizen of and residing in Niobrara County; the land sought to be leased is school land; Kerrigan first obtained a lease thereon on September 20, 1927, which lease was renewed as above mentioned; he has not violated the terms of the lease, has paid rental thereon when due, and offers to take a renewal lease at the same terms offered by Zerbe; he has permitted the Van Tassell Real Estate and Live Stock Company to graze its live stock upon the leased land during the entire time he has held a lease thereon, and that such use will continue if he obtains a new lease, and that said company owns the improvements upon the land; that he has never personally occupied the land, and that the Van Tassell Company has always paid the rental on the lease; that Zerbe is trying to make a living partially by the use of the lease and needs the land for his 75 head of cattle. The appeal from the land board came on for trial before the court without a jury. It was shown that Kerrigan never saw the land sought to be leased; that he owns no live stock and has no use for it personally; that he owns no land adjoining the leased land. It further was shown that Zerbe owns land adjoining the school section in controversy here; that he owns about 75 head of live stock and has need for the lease. At the conclusion of the trial, the court reversed the action of the state land board and held that Kerrigan was entitled to a lease of the whole of the section involved herein. From a judgment to that effect Zerbe has appealed to this court. The trial court evidently agreed with the contention of counsel for respondent herein, that Kerrigan, as the old lessee, was entitled to a preference right of renewal under the provisions of Section 91-113, Rev. St. 1931, and that the State Board of Land Commissioners had no discretion in denying that right. That is the only point involved herein. The trial judge in this case is not only learned in the law, but he also is thoroughly familiar with the agricultural and economic conditions and needs in this state, and we have, therefore, given the point involved herein the most painstaking investigation.

The land in controversy herein is school land, and the decision herein is limited to and affects such land only. Section 5 of the Act of Admission provides that lands granted to the state for educational purposes "may, under such regulations as the legislature shall prescribe, be leased for periods of not more than five years in quantities not exceeding one section to any one person or company." The lands thus granted were accepted by Section 1 of Article 18 of the Constitution with the conditions and limitations imposed by Congress. By an act of Congress approved February 15, 1934, the period for which the land may be leased was extended from five to ten years. This act of Congress was ratified by Chapter 34 Session Laws of 1935 of this state. Section 91-109, Rev. St. 1931, provides that "no person shall be qualified to lease state lands except one who is the head of a family, unless he or she has attained the age of 21 years (we pass by the obscurity of the sentence); that a corporation must be qualified under the laws of this state; that no person or corporation shall be entitled to lease more than one section of school lands, or more than four sections of institutional land, or one section of school land and three sections of institutional land, or a total of more than 2500 acres. The main section of...