State, ex rel. Cross v. Board of Land Commissioners

• Decision Date: 09 June 1936
• Docket Number: 1953
• Parties: STATE, EX REL. CROSS v. BOARD OF LAND COMMISSIONERS
• Court: Wyoming Supreme Court

58 P.2d 423

50 Wyo. 181

STATE, EX REL. CROSS v. BOARD OF LAND COMMISSIONERS

No. 1953

Supreme Court of Wyoming

June 9, 1936

Rehearing denied November 24, 1936; 62 P.2d 516, Reported at 50 Wyo. 181 at 205.

ORIGINAL mandamus proceeding by the State of Wyoming, on the relation of George H. Cross, against the Board of Land Commissioners of Wyoming. Rehearing denied November 24, 1936. See 62 P.2d 516.

Petition denied.

For the relator there was a brief by Charles E. Winter and Wm. B Cobb of Casper, and oral argument by Mr. Winter.

The questions in issue in this case are: (1) Can the state land board lawfully impose a provision in a contract of purchase of state lands requiring the purchaser to convey to the state the mineral rights in the land patented, and withhold the patent until such conveyance is made? (2) Where purchaser signed a contract containing such provision to convey the mineral rights to the state, and such provision is void, is the purchaser nevertheless bound thereby and estopped from suit? (3) If the provision is void and purchaser has the right to enforce the rest of the contract, is mandamus the proper procedure? The Act of Admission, Section 5, Art. XVIII, Sec. 1 and Article VII, Section 13 of the Wyoming Constitution provide for the disposition of state lands acting through a board of land commissioners. Ross v. State, 21 Wyo. 464; State v. Board, 36 Wyo. 302; State v. Commissioners, 7 Wyo. 478; Buckman v. Johnson, 21 Wyo. 127; 91-102, R. S. 1931. The Board may adopt rules. Section 91-120, R. S. 1931. The Board shall sell sub-divisions as it may deem for the best interests of the state. Sec. 91-501, R. S. 1931. The statute also provides for advertising sale and plan of payment. Sec. 91-503, R. S. 1931, Sec. 91-504, 7 R. S. 1931. Section 91-508 provides for the amortization plan. Provisions as to patents are set up in Section 91-513, R. S., cited in Olds v. Little Horse Creek Company, 22 Wyoming 336. In this connection, the purchaser paid more than the land was worth and the whole fee simple title should go to him. A contract in contravention of the statute is void. Miller v. Ammon, 145 U.S. 884. The legislature and its acts control the board. The mineral provision injected by it in the purchase contract is void. Mulnix v. Mutual Ben. Life Ins. Co., 46 P. 126; State v. Clamme, 134 N.E. 682; People v. Righeimer, 132 N.E. 229; 99 R. C. L. 455. There was no implied authority to insert the mineral provision in the contract. Valley Forge Park Com., 33 Pa. 325; 59 C. J. 112. The state in its business capacity is subject to the law of contracts as an individual. Cleveland Terminal Company v. State, 97 N.E. 967; Davenport v. Buffington, 46 L.R.A. 380; Greek v. Company, 38 P. 458; Paulson v. County, 42 L.R.A. 377. A contract void in part may be enforced as to the valid portion. 6 R. C. L. 814-815; State v. Wilson, 84 P. 739; Miller v. Railway Company, 156 P. 780; Armstrong v. Bank, 133 U.S. 432. Land is the soil of the earth and includes everything erected upon its surface or buried beneath it. 3 Kent 378. When a purchaser has complied with his contract, he is entitled to a patent and the Board is obliged to convey the land in fee. Adams v. Henderson, 168 U.S. 573. As the Board lacked the legal capacity to create the easement, it is void, and being void cannot form the basis of an estoppel. 9 R. C. L. 747; 16 Cyc. 721, 734, 757. The controlling case is Burke v. So. P. R. R. Company, 234 U.S. 669. Walpole v. State, (Colo.) 163 P. 848; Campbell v. The Flying U., (Ariz.) 220 P. 421; Otto v. Field, 31 N.W. 120; State v. Field, 241 P. 1040. The relator's is a completed contract. Mandamus is the proper remedy. 22 R. C. L. 353; Lane v. Hoagland, 244 U.S. 174; State Board v. Carpenter, 66 P. 165; Wren v. State Board, 159 P. 616. Mandamus will lie to compel delivery of patent. Lane v. Hoagland, supra; Greenwood Land Company v. Routt, 26 P. 1125. The State Board cannot even buy or trade for improvements put on state land by a lessee. State v. Carey, 26 Wyo. 300. There is no authority for the commissioner of public lands to acquire any land or interest in land. Sec. 91-201-212. The legislature has refused to enact laws providing for mineral reservations in patents. Maintenance of the common school fund is guaranteed by the constitution. State v. Snyder, 29 Wyo. 163. The purchaser bought what the law provides--a fee simple title. The appraisal was on that basis. The Board offered and sold the land, which means patent in fee simple. There was no consideration for the promise to deed the mineral rights to the state. The Board could not give a consideration. There was but one sale and no separation. It was a surface right sale. Unless the sale included the mineral rights, the purchaser would not be able to deed the mineral to the state. There is here a clear legal right in the relator and a clear legal duty to act exists on the part of the Board, and the writ will be an effectual remedy; hence the mandamus writ is lawfully issued.

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

The land in question is indemnity school land. A certificate of purchase issued to J. H. Kennedy on May 2, 1919, was exchanged for an amortization certificate in 1926, which in turn was assigned to plaintiff in 1933. Payments were completed in May, 1935, and patent was prepared for delivery to the plaintiff by defendant, but defendant refused to deliver the patent until the plaintiff had completed the purchase by conveying to the State of Wyoming, all of the mining and mineral rights in and to said land. The defendant has interposed a general demurrer to the petition upon the ground that the petition fails to state facts sufficient to constitute a cause of action. A state may dispose of and deal with its property on its own terms. 25 R. C. L. 388. The constitutional provision, Article 7, Section 13 authorizes the Board to dispose of lands so as to realize the largest possible amount. The Board of School Land Commissioners is placed in charge of the business of handling the school lands of the state. Pike v. State Board of Land Commissioners, 19 Idaho 268, 113 P. 447. Since 1917, it has been the practice to segregate the minerals and mineral rights in lands sold by the state from other portions of the land and to have such rights reconveyed to the state when the lands have been sold and the purchase price paid. The laws of this state provide that the minerals on public lands may be disposed of separately from the surface. Section 91-801-8 R. S. 1931. State v. Snyder, 29 Wyo. 163. The State Land Board had the right to make the contract in question. The plaintiff accepted the assignment of the amortization certificate of purchase with all the terms therein contained and became bound thereby. He acquired no greater rights under such certificate than the original purchaser of the land had thereunder. The Constitution and laws do not compel any sale. Petroleum Company v. Price, et al., 206 P. 1033. If we eliminate a part of the contract, we must conclude that there was no meeting of the minds of the parties upon the terms of the sale, and the defendant should not be compelled to perform a contract which the plaintiff seeks to rewrite to suit his own terms and convenience. It is not the duty of the court to make a new contract for the parties. Phillips v. Hamilton, 17 Wyo. 41.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This case is an original proceeding in this court instituted by the filing of a petition on behalf of relator, Cross, to obtain a writ of mandamus directed to the Board of Land Commissioners of the State of Wyoming, the defendant herein, requiring it to deliver to him a patent for certain lands located in Converse County, Wyoming. An alternative writ was issued and the defendant, through the Attorney General of this State, has demurred generally to relator's petition. The sufficiency of that pleading to entitle Cross to the relief he seeks must accordingly be determined.

The material facts contained in the averments thus challenged are these: After setting out that relator was at all the times referred to in the petition duly and legally qualified to receive and succeed to the rights of one J. H. Kennedy, on account of an assignment to relator of an amortization sale certificate of land purchased by Kennedy from the State of Wyoming, through the defendant Board, which Kennedy was properly qualified to acquire, and that the defendant is the duly and legally created Board of Land Commissioners of this State, having the direction, control, leasing, disposing and sale of state lands now or hereafter granted to this commonwealth for the support and benefit of public schools, as prescribed by law, and having also the power to establish rules and regulations not in conflict with law governing the sale of said lands, it is stated that on October 20, 1917, J. H. Kennedy filed his application with the Board aforesaid to purchase from the State certain described lands, in Converse County, comprising about 160 acres, which were indemnity school lands selected by the State and the title thereof obtained by it from the United States.

It is also alleged that this application was on November 18, 1918 approved by the said Board, the land appraised at thirteen dollars thirty-three and one-third cents per acre and ordered sold, with the condition that the mineral rights thereto should be reconveyed to the state before the purchaser received a patent to said lands; that in due course was had notice of sale, report of said sale to Kennedy, bond of purchase and confirmation of sale to...