State ex rel. O'Brien v. Board of Commissioners of Educational Lands and Funds

• Citation: 216 N.W. 818,116 Neb. 261
• Decision Date: 09 December 1927
• Docket Number: 25116
• Parties: STATE, EX REL. SAMUEL L. O'BRIEN, APPELLANT, v. BOARD OF COMMISSIONERS OF EDUCATIONAL LANDS AND FUNDS ET AL., APPELLEES
• Court: Supreme Court of Nebraska

216 N.W. 818

116 Neb. 261

STATE, EX REL. SAMUEL L. O'BRIEN, APPELLANT, v. BOARD OF COMMISSIONERS OF EDUCATIONAL LANDS AND FUNDS ET AL., APPELLEES

No. 25116

Supreme Court of Nebraska

December 9, 1927

APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.

AFFIRMED.

Allen G. Fisher and Samuel L. O'Brien, for appellant.

O. S Spillman, Attorney General, and George W. Ayres, contra.

Heard before GOSS, C. J., ROSE, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

THOMPSON, J.

This is an action brought by appellant, Samuel L. O'Brien, hereinafter called plaintiff, to compel the defendant, Honorable Dan Swanson, commissioner of public lands and buildings, hereinafter referred to as land commissioner, and other officers connected with the administration of his office, to issue to plaintiff a lease of section 16, township 20 north, range 28, of the school lands of Cherry county, and praying that an alternative writ of mandamus issue, and that the same might be made permanent upon a final hearing of the case. Issues were duly joined, trial had to the court, and judgment entered in favor of defendants; to reverse which plaintiff appeals.

The record discloses the following facts: That on April 21, 1924 plaintiff made application in due form to the county treasurer of Cherry county to lease the school lands above described; that at the time of such application a casual examination of the books was made by the officers, application received, and rental of $ 61.20 paid by plaintiff; that a duplicate receipt, together with the application, were transmitted by mail to the office of the land commissioner, on receipt of which a lease to plaintiff was immediately executed, signed and sent to the county treasurer for delivery, at which time it was discovered by him that on April 15, 1924, an application to lease the same land had been made by one E. A. Roberts, which was filed and approved by the county treasurer, and the then appraised rental value of such land, to wit, $ 54.40, paid by Roberts; that this application of Roberts gave him until May 15, 1924, to pay for the improvements which had been placed on the land by a prior lessee, the value thereof to be ascertained by the county treasurer in the meantime, which was done and estimated at $ 50, which sum Roberts paid on May 15, 1924; that thereupon the county treasurer reported the matter back to the land commissioner, and such report was accompanied with the lease to plaintiff, which had remained undelivered awaiting the valuation of improvements and payment thereof by Roberts; that a cancelation of the O'Brien lease was requested by the county treasurer; that on receipt of this communication the land commissioner canceled...