Ross v. Trustees of University

• Decision Date: 26 August 1924
• Docket Number: 1172
• Parties: ROSS, GOVERNOR ET AL. v. TRUSTEES OF UNIVERSITY
• Court: Wyoming Supreme Court

228 P. 642

31 Wyo. 464

ROSS, GOVERNOR ET AL. v. TRUSTEES OF UNIVERSITY

No. 1172

Supreme Court of Wyoming

August 26, 1924

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

On petition for rehearing. For former opinion, see 30 Wyo. 433 222 P. 3.

Rehearing Denied.

David J. Howell, Attorney General, for plaintiffs in error; Ray E Lee, of counsel.

Corthell McCullough & Corthell, for defendant in error.

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

OPINION

POTTER, Chief Justice.

The case is now before us upon a petition for rehearing, alleging that, by the decision upon the original hearing (see 222 P. 3), this court erred in the following particulars:

"1. In holding that the grant of lands in controversy for County road purposes is justifiable under the power of Eminent Domain.

2. In holding that the State Board of Land Commissioners and not the Trustees of the University has the management of University lands.

3. In holding that the University lands are not vested in the University under Section 15 of Article VII of the Constitution."

The court did not, by said decision, hold either of the above propositions as they are stated. But we think we understand what was intended in so stating the grounds for rehearing, and as we desire the court's position to be accurately understood, we feel justified in briefly explaining the distinction between that position and what the court seems to be represented to have held in the above statement of the grounds for rehearing.

When discussing the provision of the statute for granting a right of way for county roads over state public lands, we said that the taking of such lands by the exercise of the right of eminent domain has usually been upheld by decisions upon the subject, where the fee is not thereby disposed of, and cases were cited in support of that statement; but it was further said in that connection that eminent domain, when defined as the power to take private property for public uses, was not involved in the case; and, argumentatively, that if, in the exercise of such power, the state might permit corporations and individuals to acquire the right to use such lands for quasi-public purposes, it was difficult to see why the state itself might not consent to such use for a purely public purpose, especially where such use would not defeat the objects of the grant. But the question of the right to acquire such lands through eminent domain was left undecided and for the reason stated, that it was not a question in the case.

Instead of holding that the Land Board and not the University Board has the management of university lands, we held that the provision relied on by the University (Sec. 17 of Art. VII) directing the legislature to provide for the management of the University "its lands and other property" by a board of trustees was not intended to affect the management and control of state lands like those involved in this case, and we said:

"We think it is not a strained construction to say that the lands and other property of the University, as there mentioned, does not include lands held by the state for university purposes, under this grant. As to these state lands, the University's interest is that of a beneficiary, and its right is, not to have the lands, but only the income therefrom."

Our decision thus left the University Trustees in the management of all its real and personal property "occupied or used by, and in connection with, that institution, and perhaps, other property, not necessary now to be inquired about."

Again, instead of holding, as stated in the third ground aforesaid, that "the University lands" are not vested in the University by section 15 of Article VII, we held, construing that section, that the declaration therein that the lands granted to the University as such or in aid of the instruction in any of its departments, should vest in the University, was not intended to take the lands in controversy "out of the category of state lands, where they were placed, not only by the terms of the grant, but by its acceptance through the constitution, and by other provisions of that instrument." Moreover, said third ground contains a technical misstatement of the situation by referring to the granted lands as "the University lands," since it is generally held, and it is conceded in this case, that the title to all of the lands under the grant in question was and remains in the State. It was, no doubt, intended by the language used in stating that ground to refer merely to the lands in question in this case, and we shall consider it as alleging error in the holding that the lands granted to the state under the Congressional acts involved in the case were not "vested" in the University except as the beneficiary of their proceeds. The opinion recites the fact that no university had been established when the grant was made to the Territory, that when the Constitution was framed and adopted the lands had not been granted to the University as such, nor in aid of the instruction to be given in that particular institution, and that the original grant was for the use and support of a University when the Territory should be admitted as a state. Reciting the further fact, in the original opinion, that the use of the income for its support was all the benefit that any university could expect to receive from the fund, we held that the provision of the Constitution vesting in the University all lands granted by Congress into the University as such or in aid of the instruction given in any of its departments, if including these particular lands, merely designates the University as the institution to receive the benefit of the grant, and that it was not intended thereby that the lands themselves should become university lands within the meaning of the provision in the same article for the management of its lands and other property by a board of trustees.

In the brief filed in support of the application for rehearing, the first point presented involves a criticism of the court's decision for having considered the right to acquire, by proceedings in eminent domain, a right of way for a highway across these or other public lands of the state granted to it by Congress, and it is suggested that the question which, it is said, was not presented in the briefs upon the original hearing, is of such importance that it should not be disposed of without a full and exhaustive presentation of both sides and the fullest consideration by the court; and it is now suggested that if the question is believed by the court to be necessarily involved, an opportunity be afforded counsel for each of the parties to prepare briefs and present their views thereon. The court's decision seems also to be somewhat criticized for having considered the question of the right of the state by legislative authority, through the land board or otherwise, to grant an easement for a county road across lands embraced within the Congressional grant aforesaid, either with or without compensation; that seeming to be based also upon the ground that a decision of the question was not necessary to a disposition of the case upon a consideration of the question whether the University Board or the Land Board has the management of said lands.

It is true that the argument upon the original hearing was confined to a discussion of the latter question. But it was suggested in the brief for the University upon that hearing that the decree of the district court should be affirmed, and it was stated in concluding the argument in that brief that the authorities cited would seem to be pertinent also on the question whether either Board could lawfully make the grant in question. And it was said further in the brief concerning that matter, that whether exercised by the one board or the other, the attempt to make the grant "would seem to be a plain violation both of the constitutional provisions and of the provisions of the granting Act." But it was suggested that the question might not be essential to the determination of the case.

Our statement above explaining the reference in the former opinion to the decisions respecting the right to acquire through eminent domain an easement across public lands sufficiently answers, we think, the criticism as to the court's consideration of that matter as well as the suggestion that the parties be allowed an opportunity to present their views upon it. But to remove any remaining doubt as to the effect of the decision in that respect, it may be understood that the court did not then and does not now decisively pass upon the question, but leaves it open for further consideration whenever properly presented.

It seemed, necessary however, to consider the question of the right of the legislature to authorize the granting of a right of way for a county or public road across such lands, in view of our conclusion that the judgment could not be affirmed upon considering alone the authority of the land board in the matter of the control, leasing and disposal of such lands. Without considering the power of the legislature to authorize or the state to grant a right of way across such lands for the purpose aforesaid, the judgment here for review might possibly have been modified in a particular which would seem necessary in any event, if not reversed. But it was not thought reasonably possible to reverse the judgment, as was contended should be done by counsel for the land board, without a determination of its authority under the statute providing for the granting of said right of way. And it is not now perceived that a decision of that question could be reasonably avoided, in view not only of the court's said conclusion, but the issues in the case and...