White v. Board of Land Com'rs

• Decision Date: 17 May 1979
• Docket Number: No. 4919,4919
• Citation: 595 P.2d 76
• Parties: Bryan WHITE and Frances H. White, Appellants (Defendants below), v. BOARD OF LAND COMMISSIONERS for the State of Wyoming and A. E. King, Commissioner of Public Lands for the State of Wyoming, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 76

595 P.2d 76

Bryan WHITE and Frances H. White, Appellants (Defendants below), v. BOARD OF LAND COMMISSIONERS for the State of Wyoming and A. E. King, Commissioner of Public Lands for the State of Wyoming, Appellees (Plaintiffs below).

No. 4919.

Supreme Court of Wyoming.

May 17, 1979.

John A. MacPherson (argued), of MacPherson, Golden & Brown, Rawlins, for appellants.

V. Frank Mendicino, Atty. Gen. and Christan P. Mai, Asst. Atty. Gen. (argued), for appellees.

Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired. ^*

GUTHRIE, J., delivered the opinion of the court.

GUTHRIE, Justice, Retired.

The questions presented by this appeal concern the rights of lessees attaching as a consequence of a decision of the State Land Board to sell certain school lands, which they have leased through the years. The case arises out of a declaratory judgment action instituted by the Board following a delay in the attempted sale of the land occasioned by the asserted claims of appellants to all appurtenant water rights, ditches, and ditch rights. The district court entered an order in favor of the Board, which determined that appellants were not entitled to a preferential right to meet the highest bid in the event the land would be sold at public auction, that they were not entitled to compensation for three water rights and all ditches and ditch rights that had been secured and developed by the predecessor in interest of appellants for irrigation of the land, and that they had forfeited their entitlement to any compensation for improvements on the land in excess of $750.00. We reverse the judgment insofar as appellants were denied the right to meet the highest bid in the event of sale and affirm the judgment as to the other aspects.

The facts are similar to those appearing in an earlier suit in this court, being King v. White, Wyo., 499 P.2d 585 (1972), and will be repeated insofar as necessary for clarity. In 1901, Herbert King secured his first lease upon school lands located in Carbon County and legally described as Section 36, Township 19, North, Range 78 West of the 6th Principal Meridian. King perfected three direct-flow irrigation rights on these lands. Two of the water rights have a priority date of February 14, 1908, and were secured under a renewal lease for a five-year term, which expired in 1911. A supplemental direct-flow water right from Rock Creek was subsequently perfected with a priority date of July 21, 1921. King held leases on Section 36 continuously until November, 1957, when he assigned it to appellants. The assignment was approved by the Board, and in 1959, appellants secured a ten-year renewal lease on these premises with an expiration date of March 1, 1969.

On February 17, 1969, appellants applied for a renewal of their lease, but the Commissioner of Public Lands in a decision rendered after expiration thereof recommended that the section be sold, noting the controversy with appellants over ownership of water rights and the long-standing disagreements over the section between appellants and the Wheatland Irrigation District. The Commissioner's decision advised that the water rights appurtenant to the land were to be sold with the land, that the purchaser would have to pay the State for these rights, and that appellants did not have a preferential right to meet the high bid in the event the land was sold. Appellants appealed the decision to the Board asserting a claim to the water rights and that they should be compensated for the appraised value thereof when Section 36 was sold. The Board entered its findings of facts and conclusions of law on February 4, 1970, which affirmed the Commissioner's decision with respect to ownership of the water rights but ordered that appellants shall have their right to meet the high bid at the public auction.

The question of ownership of these water rights and entitlement to payment therefor was ultimately reviewed in King v. White, supra, but the case was postured upon the effect of the lease assignment in 1957. This court held that appellants secured no title to the water rights perfected by King by virtue of the assignment but only the right to the use and enjoyment of them during the term of the lease.

Following the issuance of the mandate in King v. White, supra, the Commissioner advised appellants by letter, dated November 20, 1972, of the Board's decision to sell Section 36 at public auction for the highest responsible bid, and further advised in a letter of December 26, 1972 that they were merely lessees of an expired lease and would not be granted a preferred right at the sale. At that time appellants had acquired two quitclaim deeds, recorded on December 22, 1972, from Ester L. Hansel and Alfred Herbert King, purporting to convey to appellants all the water rights, ditches and ditch rights secured by King on this section. After the proposed sale was advertised as required by the statute, the Commissioner appeared at the courthouse in Rawlins, Wyoming, on January 26, 1973 to conduct the public auction and sale of the section and all appurtenant water rights and ditch rights. Before the auction commenced Bryan White appeared with his attorney, announcing publicly a claim of ownership to all appurtenant rights. The Commissioner held up the sale until these issues could be resolved.

The issue raised by the first count of the Board's complaint concerns the validity of the Board's decision of February 4, 1970, which held that appellants shall have the right to purchase the subject land for the amount of the highest responsible bid as provided by what is now denominated as § 36-9-101, W.S.1977. That statute gives a lessee of state land or a lessee holding an expiring lease at the time of sale what is commonly known in contract law as a preemptive right or right of first refusal. Appellants argue that the doctrines of Estoppel and Res judicata apply to final decisions of the Board and preclude the Board from denying the existence of a vested right, I. e., to meet the bid of the highest bidder at the sale. The Board concedes the holding of its earlier decision, but asserts that the decision can now be reversed because it was not in conformity with the statute. ¹ Although the issue as framed by the parties is intriguing, at no stage of the proceedings have either the parties or the district court raised the question whether the allegations of this claim for declaratory relief set out a justiciable issue necessary to exercise of its jurisdiction.

Parties cannot confer jurisdiction by consent. Church v. Quiner, 31 Wyo. 222, 224 P. 1073 (1924); Poston v. Delfelder, 39 Wyo. 163, 270 P. 1068 (1928); and jurisdiction of subject matter cannot be waived. Steffens v. Smith, Wyo., 477 P.2d 119, 121 (1970). We have an obligation to independently consider and pass upon it. Pritchard v. State, Div. of Voc. Rehab., Dept. of H. S. S., Wyo., 540 P.2d 523, 524 (1975); Bowman v. Worland School District, Wyo., 531 P.2d 889, 891 (1975). This inquiry is necessary because the action was filed under the Uniform Declaratory Judgments Act, §§ 1-37-101 to 1-37-114, W.S.1977, and we have held that before a court can proceed to grant relief under the act, there must be present a justiciable controversy, being a jurisdictional requirement. Mountain West Farm Bureau Mutual Insurance Company, Inc. v. Hallmark Insurance Company, Wyo., 561 P.2d 706 (1977); Anderson v. Wyoming Development Co., 60 Wyo. 417, 154 P.2d 318 (1944). This is an unusual case inasmuch as the other issues presented to the district court met the justiciability requirement and were properly before the court. We disapprove, however, of the Board using the vehicle of a declaratory judgment suit to obtain a review of the validity of its own decision. The factual posture of this case makes the following most appropriate:

"Courts do not have the power to give legal advice or opinion. 'The relief sought should not merely be legal advice by the courts or to give an answer to satisfy curiosity.' (citing authorities) 'It was not the intent of the Declaratory Judgment Statute to confer jurisdiction on the courts to be legal advisers of all the political subdivisions of this State . . . ." Collins v. Horten, Fla.App., 111 So.2d 746, 751 (1959).

The stipulation of facts upon which the trial court made disposal of this case contains nothing which would demonstrate any present, real controversy between these parties. The stipulation does recite the fact that the Board of Land Commissioners had held that these appellants had a preferential right to meet the highest bid for this land and further recites that this decision was not appealed. The only other mention of this right is that the State on December 26, 1972, notified the defendant that they "will not be granted a preferential right at the January 26, 1976, sale."

We have heretofore recognized that the Declaratory Judgment Act gives the courts no power to determine future rights or anticipated disputes or controversies and must treat them as existing and genuine. Cranston v. Thomson, Wyo., 530 P.2d 726, 728-729 (1975). The statement in the letter clearly sets out an intention to deny this right in the future.

In face of the fact that there is an existing and unappealed order of the Land Commissioners granting to appellants such preference right and under which they claim, this record, by virtue of the stipulation and letter of the Commissioner of December 26, puts into proper perspective what is sought by this action. It would appear that the appellees in effect proposed to the lower court that this court should advise them whether this unappealed order is still in force and effect or whether the Commissioner can properly overrule the Board and set aside such unappealed order.

This is a request for legal advice and opinion as to the effect of the Commissioner's action and to ask the court which governs, yet this question can only arise...