State v. Carey

• Decision Date: 29 September 1919
• Docket Number: 950
• Citation: 183 P. 785,26 Wyo. 300
• Parties: STATE v. CAREY
• Court: Wyoming Supreme Court

183 P. 785

26 Wyo. 300

STATE v. CAREY

No. 950

Supreme Court of Wyoming

September 29, 1919

ORIGINAL PROCEEDINGS IN MANDAMUS on the relation of A. H Marble against Robert D. Carey, Governor, and others comprising the State Board of Land Commissioners.

Clark and Haggard, for relator.

The rights of the original lessee are governed by the provisions of Sec. 632, C. S.; the provisions of Sec. 616, C. S., while in conflict, were apparently repealed by implication; at any rate, Sec. 632 is the more recent expression of the legislature on the subject, and should govern; the presumption of repeal is supported by the legislative history of the two sections, when considered in connection with other sections of the state land laws, bearing a relation to both. Sec. 616 may remain in force and effect for certain purposes for example, in cases where the original lessee has reclaimed more than one quarter of the land, thus acquiring a right to successive leases, for a period of 25 years, at the end of which time the water rights and improvements should revert to the state; the purchaser having complied with the statute Sec. 632 C. S., is entitled to a certificate of purchase.

D. A. Preston, Attorney General, for defendant.

Educational lands may be leased for periods not exceeding five years; water rights acquired by the original lessee become the property of the state at the expiration of the first five year lease, under the provision of Sec. 616 C. S., and the same rule should be applied at the expiration of each succeeding five year lease term; water rights thus acquired by the state could not be impaired by the subsequent enactment of Sec. 632 C. S.

Clark and Haggard, for relator, in reply.

If the leases upon which the provisions of Section 616 are founded could not be lawfully given, and the preferential right to renewals be void, there could be no transfer of water rights growing out of a transaction under a void statute. The contention that Sec. 632 cannot be given retroactive effect, so as to apply to a lease granted prior to its enactment, is not supported by the authorities, since Sec. 632 is a repealing act (36 Cyc. 1224). Occupying claimant or betterment acts may operate retrospectively (22 Cyc. 15; Beard v. Dansby, 48 Ark. 183, 2 S.W. 701; Fee v. Coudry, 45 Ark. 410; Claypool v. King, 21 Kan. 602; Whittney v. Richardson, 31 Ver. 300; Mills v. Geer, 111 Ga. 275, 52 L. R. A. 934.

BEARD, CHIEF JUSTICE. POTTER, J., and BURGESS, District Judge, concur. BLYDENBURGH, J., being unable to sit, HON. JAMES H. BURGESS, Judge of the Fourth Judicial District, was called in and sat in his stead.

OPINION

BEARD, CHIEF JUSTICE.

This is an application to this court by the relator for a writ of mandamus requiring the defendants to issue to him a certificate of purchase for Section 16, Tp. 21 N., R. 66 W., in Platte county. The case was commenced while the predecessors of the above named defendants were in office, and during the pendency of the action the present officers were, duly, by order of court, substituted as defendants. The case has been submitted on a general demurrer to the petition, and presents the single question of law, viz: Is the purchaser of school lands from the state required to pay to the lessee of said lands the appraised value of irrigation ditches constructed by said lessee, and water rights acquired by him during the period of his lease or leases for the irrigation of less than one fourth of said land, or must said purchaser pay said appraised value to the state? The relator paid to the proper state officer the first payment required at the time of the sale and purchase of the land, and paid to the lessee or lessees the appraised value of the ditches which had been constructed thereon and the water acquired by them during the terms of their leases, and delivered to the proper officer the receipts of the said lessees for such payments and demanded that a certificate of purchase for said lands be issued to him. This the defendants refused, claiming that the state was entitled, and not the lessees, to the appraised value of said ditches and water rights.

The provisions of the statutes which we are required to construe and apply are Sections 616 and 632, Compiled Statutes, 1910, which read as follows:

"Sec 616. All water rights which shall have become appurtenant to the lands leased aforesaid shall, upon the expiration of the leases given to the lessee who made the irrigation and improvements thereon, become the property of the state, and shall not be considered as being improvements, which any subsequent lessee or purchaser thereof shall be obliged to reimburse or pay such original lessee who made such improvements thereon."

"Sec. 632. If any state lands be sold upon which surface improvements, including irrigation works of any kind, have been made by a lessee, or for which water rights or proportionate interests in irrigation reservoirs, canals or systems, have been acquired, said improvements, irrigation works and water rights shall be appraised under the direction of the board. The purchaser of said lands, upon which improvements and...