Miles v. Wells

• Decision Date: 07 May 1900
• Citation: 22 Utah 55,61 P. 534
• Court: Utah Supreme Court
• Parties: ORSON MILES, APPELLANT v. HEBER M. WELLS, JAS. T. HAMMOND, BYRON GROO, WESLEY K. WALTON, ISAAC C. McFARLAND, T. D. REES, FISHER S. HARRIS, AS MEMBERS OF THE STATE BOARD OF LAND COMMISSIONERS, AND THE STATE BOARD OF LAND COMMISSIONERS, RESPONDENTS

61 P. 534

22 Utah 55

ORSON MILES, APPELLANT v. HEBER M. WELLS, JAS. T. HAMMOND, BYRON GROO, WESLEY K. WALTON, ISAAC C. McFARLAND, T. D. REES, FISHER S. HARRIS, AS MEMBERS OF THE STATE BOARD OF LAND COMMISSIONERS, AND THE STATE BOARD OF LAND COMMISSIONERS, RESPONDENTS

Supreme Court of Utah

May 7, 1900

Affirmed.

Messrs King Burton & King, for appellant.

Hon. A C. Bishop, Atty. General, for respondent.

BASKIN J. BARTCH, C. J., and MINER, J., concur.

OPINION

BASKIN, J.

The plaintiff, by petition, applied to the court below to issue a writ of mandate, directed to the defendants, and each of them commanding them to refrain from selecting certain lands for the purposes of public sale or lease, and to receive the application made by the petitioner for the selection of said lands, and also to select the same pursuant to the petitioner's application, and to contract to sell the same at private sale to the petitioner for the sum of $ 1.50 per acre, and to receive the sum of 25 cents per acre tendered by the petitioner; and also commanding them and each of them to make no selection of said lands or any part thereof except pursuant to the application of the petitioner, and for the purpose of selling them to the petitioner at private sale pursuant to his said application; and also commanding them to show cause before this court at the court room thereof in the city of Salt Lake, and in the State aforesaid, on the 7th day of October, 1899, at 10 o'clock a. m., and to show cause, if any they have, why they have not done so. Your petitioner prays for general relief."

An alternative writ of mandate was granted and served upon defendants.

A demurrer was interposed to the petition by the defendants on the ground that the same did not state facts sufficient to constitute a cause of action, and that the court had no jurisdiction of the subject-matter.

Without setting out in detail the allegations of the petition, it is sufficient to state that it is, in substance, alleged that the plaintiff, a citizen of the United States, and a resident of Cache county, in this State, on the 2d day of October, 1899, in due form, made a written application to the State Board of Land Commissioners, of which the defendants were the members, as follows, "for the selection by the said Board of the following described tracts of land, to-wit: (Then follows description by metes and bounds of various tracts of lands, aggregating 2,400 acres) which said lands were and still are public and unoccupied public domain of the United States and subject to selection by defendants for said state, in satisfaction of the grants made as aforesaid." And in said application the plaintiff requested and demanded said Board to select said lands, and to contract and sell the same to him at private sale at $ 1.50 per acre, that being the price fixed by the Board to be paid by persons applying for lands to be selected by the Board in satisfaction of the grants of public lands made by Congress to the State of Utah; that the plaintiff tendered to the Board twenty-five cents per acre for said lands to be applied on the first payment, and "demanded a contract with said defendants by which the balance of said purchase price should be paid in ten equal yearly payments," and that the Board refused to receive the money so tendered, and refused, and still refuses, to select said lands and contract and sell the same to the plaintiff at private sale, or at all.

Prior to the argument of the demurrer, the following minutes of said board, by agreement of the parties to the action, were added to and made a part of the petition: "Commissioner Hammond moved that the secretary be directed to notify each person upon whose application land had been selected that the board is now prepared to enter into a contract to sell the land so selected to the applicants at $ 1.50 per acre in all cases, except where the applicants have agreed to pay more than that price, and in such cases the price to be that stated in the application; and that the applicants have thirty days after the receipt of such notice within which to enter into the contract and make a deposit. Carried. Adopted May 4, 1899.

"Commissioner MacFarland moved that the executive committee be authorized to enter into private contracts with the citizens to sell to them lands which have been selected on their application, when the board is not in session.

"Commissioner Harris moved that all of the applications for the selection of lands by the State be denied where the price offered by the applicants is less than $ 1.50 per acre or the land applied for is surveyed. Carried.

"By order of the State Board of Land Commissioners of July 6, 1899."

Sec. 1, Art. 20, Const., provides that "All lands of the state that have been or may hereafter be granted to the state by Congress * * * shall be held in trust for the people, to be disposed of as may be provided by law."

The legislature passed an act (Ch. 64 of the Laws of 1899, p. 85), among the sections of which are the following, which have a bearing upon the questions involved:

"Sec 5. The board of land commissioners shall have the discretion, management, and control of all lands heretofore, or which may hereafter, be granted to this state by the United States government, or otherwise, for any purpose whatever, except lands used or set apart for public purposes or occupied by public buildings, and shall have the power to sell or lease the same for the best interests of the state and in accordance with the provisions of this act and the constitution of the state.

"Sec. 7. The board shall cause all the public lands now owned by the State, or lands the title to which may hereafter be vested in the State, to be selected and registered, and thereafter sold or leased. * * *

"Sec. 9. The board shall cause the State lands and the improvements thereon to be appraised or reappraised at such times as it may deem for the best interests of the State. * * *

"Sec. 14. In all counties where the public lands or any portion thereof, have been appraised, the board shall, when deemed conducive to the best interest of the State, attend in person or by agent, at such time as the board shall direct, and offer at public auction at the courthouse of the county, and sell to the highest bidder all or any of the appraised and unsold and unleased lands situated in the county where such public auction is held. * * *

"Sec. 16. Whenever any citizen of the United States or person who has declared his intention to become such, shall make application in writing for the selection by the State of any tract of land in satisfaction of any grant to the State, the board may select and contract to sell the same at private sale to the person requesting the selection thereof at a price to be fixed by the board, not less than one dollar per acre; provided that at the time of making such contract twenty-five cents per acre shall be deposited with the board to be applied as the first payment on such land after the same is patented to the State, and the remainder of the purchase price shall be paid in not to exceed ten equal yearly payments. All lands heretofore selected by the board upon the application of citizens may be sold to the applicants under the provisions of this section.

"Sec 18. The board may sell the timber on the unsold and unleased lands of the State, except as provided in ...