Neel v. Barker.

• Decision Date: 05 January 1922
• Docket Number: No. 2571.,2571.
• Parties: NEELv.BARKER.
• Court: New Mexico Supreme Court

27 N.M. 605

204 P. 205

NEEL

v.BARKER.

No. 2571.

Supreme Court of New Mexico.

Jan. 5, 1922.

Syllabus by the Court.

The restrictions and limitations of the Enabling Act admitting the territory of New Mexico to the Union (36 Stat. 557, c. 310; Act of June 20, 1910) in regard to the sale, lease, conveyance, or contract of or concerning any of the lands granted or confirmed by said act, or the use thereof, or the natural products thereof, do not apply to a grant or lease to explore for oil and gas executed by the commissioner of public lands of the state of New Mexico.

Appeal from District Court, Rio Arriba County; Bratton, Judge.

Action by George M. Neel against William J. Barker. From a judgment affirming the decision of the Commissioner of Public Lands, and denying plaintiff's application for an oil and gas lease on certain state lands, plaintiff appeals. Affirmed.

The restrictions and limitations of the Enabling Act admitting the territory of New Mexico to the Union, 36 Stat. 557, c. 310; Act of June 20, 1910, in regard to the sale, lease, conveyance, or contract of or concerning any of the lands granted or confirmed by said act, or the use thereof, or the natural products thereof, do not apply to a grant or lease to explore for oil and gas executed by the commissioner of public lands of the state of New Mexico.

Francis C. Wilson, of Santa Fé, for appellant.

Harry S. Bowman, Atty. Gen., for appellee.

RAYNOLDS, C. J.

This is an appeal from the district court of Rio Arriba county affirming the decision of the commissioner of public lands, denying the application of the appellant for an oil and gas lease upon certain state lands in Rio Arriba county. The appellee, William J. Barker, was the holder of an oil and gas lease issued by the state of New Mexico through the office of the state land commissioner, dated August 29, 1919. The lands included in this lease constituted a portion of those granted by the United States to the territory of New Mexico by an act approved June 21, 1898, known as the “Fergusson Act” (30 Stat. 484). These lands became the property of the state of New Mexico when it was admitted into the Union. On December 15, 1919, the contestant, George M. Neel, appellant here, made an application for an oil and gas lease upon a portion of the same lands which had been previously leased to appellee, furnished and filed with the application an appraisement of the lands, and requested that an oil and gas lease of such lands be put up for sale at public auction to the highest and best bidder after public advertisement as provided by section 10 of the Enabling Act (chapter 310, 36 Stat. 557; Act of June 20, 1910). The lease issued to the contestee, appellee here, William J. Barker, was executed and issued to him by the commissioner of public lands without formal appraisement of the lands, without advertisement, and without sale at public auction. Appellant contended that section 10 of the Enabling Act was not complied with. The commissioner rejected the application of appellant, Neel, upon the ground that the lease had previously been executed to appellee, Barker, and was a valid and subsisting contract at that time. The commissioner also held the contract with Barker, being an oil and gas lease, for a period not exceeding five years, was by the terms of section 10 of the Enabling Act excluded from its provisions, and that it was not necessary to appraise, advertise, and sell at public auction the lease in question.

The lower court, in affirming the action of the commissioner, held that the provisions of section 10 of the Enabling Act applied alike to lands which became the property of the state through the grant to the territory by the “Fergusson Act,” and to those which had been granted de novo to the state and the Enabling Act. It also held that Congress had power to place such restrictions as it saw fit upon the grant of lands to the state of New Mexico. With these two conclusions of the lower court the appellant states he has no quarrel. He maintains that there are only two questions to be passed upon by this court. He contends, first, that the lease of the appellee, Barker, was such a sale of lands or an interest therein as was required by the terms of the Enabling Act to be appraised, advertised, and sold at public auction; second, that said instrument was a lease, license, or interest not included within the proviso of section 10, to the effect that leases for a term of five years or less could be made without appraisement and sale at public auction. These two points were decided adversely to the contentions of the appellant below, and he brings his appeal to this court.

Eleven errors are assigned, but in his brief appellant confines his discussion to the two propositions above set out, seeking a reversal on the ground that the court below erred in deciding these two contentions against him. In the view we take of the case it is not necessary to determine the nature of the so-called lease issued by the commissioner of public lands, granting to the lessee the right to enter and explore for oil and gas for a term of five years, with provisions of renewal under certain conditions and upon certain payments. Nor is it necessary to determine the interest thereby granted or conveyed. It is conceded by both sides that oil and gas are minerals, and that the lands under which they may be found are mineral lands. The Enabling Act, which is chapter 310, 36 Stat. 557, by its provisions grants certain land to the state of New Mexico, and restricts the sale and the leasing and conveyance thereof, and the natural products of such lands, by provisions making it necessary to appraise, advertise, and sell at public auction these lands, and declaring that, if the provisions are not carried out, the attempted sales, leases, conveyances, and contracts will be void. Section 10 of the act, in so far as it is material to the matter under discussion, is as follows:

“Nor shall any sale or contract for the sale of any timber or other natural product of such lands be made, save at the place, in the manner, and after the notice of publication thus provided for sales and leases of the lands themselves: Provided, that nothing herein contained shall prevent said proposed state from leasing any of said lands referred to in this section for a term of five years or less without said advertisement herein required. * * *

Every sale, lease, conveyance, or contract of or concerning any of the lands hereby granted or confirmed, or the use thereof or the natural products thereof, not made in substantial conformity with the provisions of this act shall be null and void, any provision of the Constitution or laws of the said state to the contrary notwithstanding.”

The Enabling Act itself, together with prior enactments by Congress upon the subject, indicates to our mind that only agricultural land and contracts, leases, sales, and conveyances thereof were contemplated by Congress; that the mineral land was specifically reserved by provisions in the act itself, and by prior enactments on the same subject. As is stated by the trial court:

“The act of July 4, 1866 (14 Stat. 86, U. S. Comp. St. § 4613, Fed. Stats. Ann. 2318), expressly provides that all lands valuable for mineral shall be reserved from sale, except as otherwise expressly directed by law; said statute being...