*1 392
Argued February 31, 1960, October reversed remanded rehearing petition denied March v.
SPROUL GILBERT et al et al 359 2dP. *3 B. Thomas, Assistant Attorney General,
Alfred him cause Salem, argued appellants. With on the briefs were Robert Y. Thornton, Attorney Gen- and Donald H. eral, Burnett, Assistant Gen- Attorney Salem. eral,
Boy Kilpatrick, Canyon City, Oregon, argued cause and submitted a brief for respondents. R. Ronald L. and Hay,
John Orloff Rock- Hart, and wood, Davies, Biggs Strayer, Portland filed a Oregon as brief for Association amicus Cattlemen’s curiae. and
Before Chief Justice, McAllister, Rossman, Goodwin Jus- Sloan, O’Connell, King, Perry, tices. J.
O’CONNELL, declaratory is a for relief under This suit ORS Declaratory Judgments Act. Uniform Plain- 28.130, subjecting tiffs attack an assessment their interests county grazing to lands in Grant an ad in certain imposed valorem tax them under 307.060. ORS county assessor sheriff Defendants, Grant appeal judg- from and the State Tax Commission, plaintiffs. ment for subject grazing privi- to be taxed are interests government.
leges on lands federal These owned pursuant 15 of were created to Section interests Taylor (43 315m) Grazing Act which author- USCA Secretary lease of the Interior certain izes purposes. public for lands in domain imposed, under which the tax was 307.060, ORS as reads follows: Property held “307.060 the United States
by person less or other interest than under lease property personal of the United Real and fee. agency any department thereof or or held States any person or or under lease other interest simple, a fee other than under a less than estate and taxed for contract of shall assessed sale, subject de- the full true cash value thereof use. the tax The lien for shall duction restricted against only enforced the leasehold, attach to and be property. personal or real estate in such apply personal real or This section shall *5 any county, municipal by property or held this state political which corporation is: therein or subdivision by occupation “(1) such use and In immediate body; political or by “(2) Required, or the terms of the lease agreement, maintained and made available to be military as a installa- Government, the Federal to facility.” tion and privilege grazing Plaintiffs contend by Secretary granted to them of the Interior than a not “a lease or other interest estate less They simple” 307.060. further fee described ORS subject contend that if their interests are to taxation under 307.060 the statute is unconstitutional be- ORS purports levy property it a cause tax on the of the against and because it discriminates States, United lessees of the United States.
The trial court held that 307.060is ORS constitu- plaintiffs’ tional interest “constitutes not a but merely prop- but leasehold interest license to use the erty grazing.” appeal part judgment from that
Defendants plaintiffs which declares that have no taxable interest; plaintiffs cross-appeal part judg- from that ment which declares that 307.060 constitutional. ORS Taylor Grazing provision The Act makes for the types grazing privilege, granting of two different depending whether the land is within or outside grazing an district. Where the land is established Secretary grazing within district the of the Interior (43 315b) § 3 of the is authorized Section Act USCA grazing permit; the land is not in- to issue where Secretary grazing district the is authorized cluded in (43 315m) § to lease it Section 15 USCA may prescribe. pertinent parts such terms as he Taylor Grazing of Sections 3 and 15 of the read as Act follows: Secretary 3 The
“Sec. of the Interior is author permits ized to issue or cause to be issued graze livestock on such districts to such bona fide settlers, and other stock own residents, regulations ers as under his rules and are entitled participate range, upon pay in the use of the *6 annually ment of reasonable fees in each case to be fixed or determined from time to and in time, fixing Secretary the amount of such fees the of the Interior shall take into account the extent to yield public which such districts benefits over and accruing forage above those sources for livestock to the users of the re purposes. Such fees shall con grazing sist of a range, fee for the use of the and range-improvement appropriated fee when which, Congress, expended shall be available until solely purchase, for the construction, or mainte * * * range improvements. nance of per Such period mits shall be of not more than ten years, subject mittees to renewal in the preference right per to the of the Secretary
discretion of the specify who shall Interior, from time to time . * * numbers of stock and seasons of use So purposes far as provisions consistent with the and grazing privileges recognized of this Act, and ac knowledged adequately safeguarded, shall be but the creation of a district or the issuance permit pursuant provisions of a to of this Act any right, shall not create title, interest or estate (43 in or to 315b) the lands. see. USC., “Sec. 15 The ti% # [*] # [*] Secretary of the Interior is fur- ther authorized, his discretion, where un- vacant, appropriated, public unreserved lands of the domain are so justify situated as not to their in- any grazing clusion in pursuant district to be established any to this toAct, lease such lands for grazing purposes, upon such terms and conditions ** (43 may prescribe Secretary USC., *. as the 315m)” sec. provide Congress for the cre- intention of “permit” types interest, i.e., of ation of two distinct apparent § § under 315m and the “lease” under 315b Taylor an examination of other sections from clearly Grazing evidences which most Act. The section 315g implements § 315p. § This section this intent Secretary the Interior to ex- of which authorizes 315p provides § change grazing land for state land. follows: patent Exchange 315p. lands; issuance sub- of of
“§ ject outstanding lease. Secretary adjudicating of the Interior in “The 315g exchanges, this title, State under section involving outstanding un- lands embraced leases prior 315m to the der section of this title issued exchange application, filing of the State is author- any request patent ized to issue State subject outstanding to the to such lease: Pro- State, vided, the United shall not reason That States any patents required the issuance such any money account to the State for lected due col- *7 prior any part thereto as rent for of the then- period except current annual rental gust on Au- was, provided by (Aug. 24, 1937, law. 24, 1937, 748.)” [Emphasis added] ch. 50 Stat. “outstanding The use of the terms “rent” and lease,” period” “rental are, indicative of an course, inten- regard § tion to the interests created under 315m as important, 315p recognizes § But leases. what is more § that leases 315m create substantial interests in land patent by Secretary issued of the subject Interior is taken to that interest. The interest acquired permit excepted § under a 315b is not under 315p grazing § privilege acquired because the under permit
a spe- is not an interest in land. Section 315b cifically provides permits any “shall not create right, title, or estate interest, in or to the lands.” permit
The difference between a and lease is also recognized provides §in 315i which for a different dis- position moneys § of the collected under 315b and § under 315m. “permit” graze
The distinction between the au- thorized grazing under Section 3 and the “lease” of lands under pre- Section 15 is reflected in the forms pared by Department of Interior for use in me- morializing grant privilege in each instance. grant privilege graze The of a under Section 3 is “- made two instruments which are entitled Grazing “Application Grazing Year Permit” and For oper- License Permit.” The when latter, endorsed, permit permit granted ates as the itself. The grazing during of a certain number of cattle a des- ignated period permit described in the aas certain permit number of animal-unit months. The does not specific per- describe area of land which the mittee is entitled to run his cattle other than the des- ignation district to which he is limited. privilege granted permit under Section 3 is not permits may granted exclusive; to more than one person single grazing for a district. grant
The form of instrument used to graze quite under Section 15 different. It is entitled “Application To Lease and Lease of Lands for Graz- ing application, accepted Livestock.” This when agency, the federal constitutes the lease itself. Unlike grazing permit granted under Section the lease legal description contains of the land to which the grazing right range, township, extends terms of government section and lots. The lessee has the ex- *8 right to use the described land for elusive persons. Throughout against all the instrument other commonly language In the found in leases is used. appli- application portion the of the instrument the any part “applies all cant to lease of the lands signature agrees and he that his to the described,” application “acceptance also shall constitute an this proper lease when executed officer in behalf application of the United States.” At the foot provision acceptance following form inis * * * language: “A lease for the lands described hereby subject payments issued of rental due and provisions of-years.” period to the for a herein, specific provisions The instrument contains various rights defining the and duties of the all of “lessee,” language which are in the cast lease. The “lessee” agrees pay required paid if it is not “rental”; specified within the time “the shall lease become null readjustment and void.” Provision is made for three-year period. at the “rental” the end of each may “Subleases” are not authorized and the lessee “assign any lease or this interest herein without the prior signing written consent of officer.” de- fault clause is similar in form to that found in leases: performance “If the shall lessee default or ob- any stipula- servance of the terms, covenants, regulations tions or of now or hereof, hereafter in days force and such shall default continue 30 after service or written notice thereof then lessor, signing officer terminate and cancel this respect indicating lease.” Likewise with to the clause promises intention run with the land: “It agreed obligation is further covenanted and each binding upon, hereunder extend to and shall every benefit shall to and inure extend to the heirs, *9 assigns of administrators, successors and
executors, language respective parties There is other hereto.” of a indicates that the creation lease- in the form which was intended. hold interest Taylor appears, that not does It therefore, Grazing Congress intended to Act itself indicate that types grazing privileges— provide for two distinct under and a lease under Section 15 license Section 3 by Depart- used —hut also that the instruments granting grazing privileges of the Interior ment carry designed out the the two are under sections legislative distinction.
Admittedly
parties
attach
the name which
relationship
ipso
na
not
determine the
to a
does
facto
legal relationship
ele
ture of the
the essential
created;
present.
relationship
question
must be
ments of the
parlies
an instrument
The mere fact that the
describe
conclusively
establish the existence
lease does
Publishing
v. Bru
of a leasehold interest. Baseball
Co.
(1938);
ALR
18 NE2d
119
1518
ton,
54,
362,
302 Mass
Mich
236
239
Laundries,
Lewis v. Baxter
254
NW
216,
App
(1931);
142
162 Mo
Club,
502,
v. Oasis
Whiteside
language employed
(1912).
But the
SW 752
parties
construction if the instru
be an aid to
Donnelly,
ambiguous.
v.
285 Mass 554,
ment is
Alfano
determining
(1934).
the intention of the
NE
In
189
610
parties, “[t]he
construe the whole mass of
courts
merely
v.
and not
some of them.”
words
Strandholm
Barbey,
(1934).
145
In the case at bar grazing privi grant created in land was plaintiffs only. lege are “licensees” to them and that argue that a leasehold interest was The defendants plaintiffs. granted Thus we are called to each
403 upon to determine whether a lease or a license was created. ‹
To create leasehold interest the lessee must granted possession. A license is revoc privilege possession able to use land in the of another. Property, § Restatement of It 514. is com Servitudes, monly pos said that the lessee must have “exclusive Supp session,” Chain Belt Co. v. United F States, 115 (Ct. 1953); Maynard, 701, 708 Cl. v. 111 White Mass Rep (1872); Am 250, 255, 15 28 Mallam v. Trans- Airways, (Tex App Texas 227 SW2d 344, Civ 1949); Conaway v. Time Co., Oil 34 Wash2d (1949), strictly P2d but this is not true be *10 possessory including cause all interests, even a fee simple, subject making posses are to limitations the sory right something Translating than less exclusive. possession” right “exclusive to mean the to exclude apparent against it is others, that as the lessor the possession may vary depending exclusiveness imposed upon the restrictions the transferee’s use creating the instrument. Seabloom v. Krier, 219 Minn (1945); 362, 18NW2d 91 Peterson v. Vak, 160 Neb (1955), 450, 70NW2d 51 ALR2d 1221 436, 439, amended (1955); 160 Neb Tiffany, 71 708, NW2d 186 Real Property (3rd Ed) § 79. Even in the absence of ex press creating in reservations the the instrument, les right complete see’s to exclude others is less than for always right the landlord has the to enter to demand repairs. Tiffany, rent and to make Property Real (3rd Ed) § 79. specifically As we shall illustrate more it is later, common in the creation of a leasehold in- ‹ It will be noted that ORS 307.060 makes taxable not only leaseholds language but also “other interests less than a fee.” Thus the of the stat enough ute could be considered broad to include not only corporeal in terests strued, such leaseholds, as incorporeal but interests well; if so con profits easements prendre would come within its terms. For reasons which we below, will detail we are of opinion that ORS designed is 307.060 only tax possessory interests. property use of the to cer- to limit the lessee’s
terest specified In that he does not activities. the sense tain privilege property proscribed to use the for have possession is not Fur- the lessee’s exclusive. activities, right premises though lessee’s to use the even ther, may be his entire estate limited is not so restricted, subject creating instrument so as to be to termi- event; the occurrence of some stated nation other than event involve no element the stated grantor’s volition. Restatement, an exercise of g. Property, § In case the lessee’s comment such possession in a is as to the exclusive, lessor, limited sense. in the transferor reserved
Where extensive, the transferee’s terminate a license becomes indistinct a lease and line between judicial the difference is often effort to state and the difficulty Contributing convincing. less than non-possessory classifying possessory and interests possession occupation fact that of land is the in the * * * meaning. a fixed “Possession does not have things may mean different term which variable Property, purposes.” 1 American Law of different 180. 3.3, p § variability meaning posses- part
A meaning possession fact that has out of the sion arises *11 potential only use and because of actual or in terms may put vary parcel to land be from uses to which the many property parcel. is amenable to uses, the When single might purpose right a limited to use it for right yet, possession; to use same constitute not ques- regarded possessory may in if the land well be only susceptible a limited number of uses. to tion is question present in the land case, since in the so, And grazing, mining anything other than for of little use is
405 grant to use it for recreation, purposes part grazing all of embraces substantial may put. practical to which the land There- uses although relatively use is it is “ex- fore, such limited, clusive.”
In another context we noted that the acts have necessary possession to to constitute must be related Springer v. character of the land In involved. (1959), Durette, P2d 132 Or 196, 200-201, involving possession, case claim to title we adverse recognized that the wild of livestock land possession. was sufficient to constitute There we said “[t]he claimant that he ‘has acted need show question average in toward the land an owner, as would taking properly geo-physical into account the nature Property, p § of this Powell on Real 1018, 731, land/ considering the ‘reasonable uses which the land question p. in was suitable.’ 6 Powell at 717.” Sim- ilarly, in the at case character of the land bar, question determining must be considered in whether plaintiffs’ right graze pos- cattle constitutes sessory interest. separately
We have examined each of the limita- premises. pos- tions on the lessees’ use of It although single sible, course, restriction separately may nega- limitation on use considered tive possession, the lessee’s so-called exclusive aggregate of two or more such restrictions limita- present tions well do so. In the case the restric- together tions and limitations taken do not, our opinion, plaintiffs’ reduce one which is merely non-possessory in character. There is no ex- judicial gauge against act which can be set the facts prove precision. our conclusion with mathematical occupancy The exclusiveness of one’s a matter of *12 respective only compare degree. the owner- canWe usufructuary rights— interests—principally ship the if find and we and the transferee, transferor of the privilege granted of the has been the transferee together of these occupancy a sufficient share with right “possession.” his as we describe interests occupant’s revocability interest is of the classifying possessory controlling it as factor not a standpoint non-possessory of the From the interest. or may, interest prospect the lessee’s termination of its entry right by of the lessor of the reservation precarious right as the interest asbe revocation, preclude certainly not But this does licensee. a mere tenancy taking possession, for a from the transferee in land. It and traditional estate a common at will is right occupant’s to use of the character the then, is, regarded is terminated which interest is until his prior significant the termination, If, factor. the every rightfully use the interfere with can transferor premises, might occupant interest is the make any by clearly If interference license. a mere prohibited, interest is the transferee’s transferor is present clearly a case does When leasehold. required are to determine we these extremes either of by bargained the trans to use whether enough giving him warrant feree is substantial burdens) (or imposing him the which benefits possessory interests. legal attached to has tradition substantiality occupant’s Generally by inquiry: he have sufficient con Does is tested pos premises label of warrant trol over judicially inquiry part, this the most For session? matching facts in the case before the answered situation where similar has other cases court with Undoubtedly adjudication. subject been policy classifying will be served the interest which particular way frequently in a at the core this matching suggested process. has been Indeed, it *13 judicial process the is the of that which here reverse we have and that declaration of the occu assumed, rights pant’s or do not duties follow from the classifi possessory, his but cation of interest as that Ms rather, possessory non-possessory classified interest is as policy for because it is decided reasons that he rights should or should not have certain or duties. Drug (D. Supp In F Co., re 12 442 439, Owl Nev. C. 1935). MeDougal Property, and Haber, See also, (1948) pp Land Mean Cf., 342. Wealth, ings Shartel, (1932). L Minn 611 Possession, 16 Rev Testing plaintiffs’ interests the basis opinion the control, criterion of we are of the that the possessory “lease” in them interests. The cre created clearly ating instrument reveals the intent invest to plaintiffs right including with the to exclude others, grantor, except special the in the circumstances recited. grantor The reservation the of the to reduce specified permit the area or to other uses and recognition privilege the in others to use premises purposes opinion, for limited in not, do our plaintiffs’ privilege non-possessory reduce to a mere respects plaintiffs’ rights interest. In all other were rights tenancy in “exclusive.” “Restrictions wMch not affect in do its fundamentals should not be terpreted destroying relationsMp.” In re Owl Drug Supp (D. 1935). 12 F 445 Co., C. Nev More imposed upon duties over, “lessees” creating normally terms are those instrument de volving upon possessor of land. Thus in the use of required plaintiffs the land were to take reasonable prevent precaution grass, to brush and forest fires and they they suppress were Likewise, them if started. to respect comply obligated laws with with the they fences. covenanted And, maintenance of cost and any range improvements good repair on to maintain premises. the leased public which for the
Because of the concern management agencies government of lands have in they supervision, the leases which to their entrusted exactly pat- expected to follow execute cannot be Leasing ar- commercial leases. tern of traditional generis rangements us are siii such as the one before not the transferee should interest created in and the non-possessory simply does because it to be declared exactly the interest created lessees Agree- conform Comment, Cf., the usual form of lease. under Leasing Departments in Retail Stores, ments (1936), where it is contended L Mich Rev 95, *14 leasing agreements treated as sui should be such adequately generis mod- to to “enable them serve they to meet.” needs are aimed ern business nega- plaintiffs’ possession is of The exclusiveness provisions in- in the various tived to some extent persons permitting to the lessor and third strument premises certain circumstances. The under use representatives agree of authorized lessees “to allow any Department to enter Interior at time of the inspection, purpose and lands for leased agents, game at all wardens, as well allow federal business.” lands on official times to enter leased right to enter in the lessor of the The reservation commonly inspection purposes premises is for leased provided Lieberman, of leases. for in the execution (1956) Property Drafting for Real of Leases Effective entry privilege to pp reserved 166-168. The IX-12, agents inter- game is not to be and federal wardens permitting entry materially preted as which would right is, interfere with the lessees’ and substantially plaintiffs’ with consistent ex- therefore, possession. The same be said with clusive re- provision entry by spect permitting to the “miners, prospectors persons for and other minerals, entitled purposes” permitting to enter such area for lawful entry and hunting fishing purposes. for and right permit ap- The lessor reserves the “to under plicable regulations, disposal laws and use and of the or or mineral, timber, other resources on in the very grant leased lands.” It common in government privately estates in both and owned land to reserve and timber other natural mineral, resources. op. supra, pp pp cit. Lieberman, IV-17, 45-46, VI-7, any persuasive 78-79. we do not attach Therefore, significance to these reservations.
By the terms lessor reserves the lease, right “classify dispose applicable to of, under regulations, pursuant [public laws] laws and land any part provision all being or of the leased lands,” compensation disposi- made for if lessee such tion is made. The lessor also reserves the “unreasonably if reduce the leased area it is excessive for the number of stock owned or lessee, if it required pro- determined such area is for the supply tection of sources of water or communities, camping places, driveways, for stock roads trails, feeding grounds or or town near sites, communities slaughter- for the use of domestic livestock near the *15 points ing shipping or for of use stock to be marketed public purposes.” or for other In these reser- essence, vations in create the transferee an interest which is, subsequent, subject on the a occurrence of condition power grantor. a of to termination in reserved the 410 may given
Many in which the illustrations of leases power terminate the interest lessor has the to lessee’s of a the occurrence stated event. The stated event example, dispose to of the lessor’s election be, Needle, 634, v. 185 Md 45 A2d sale, land Gostin insolvency, (1946), bank ALR 1013 or 163 772, ruptcy receivership v. Hoboken lessee, or of Smith Connecting Co., P. & 66 S 123, 947, 328 US Ct W. S. S. (1946). ALR 497 The reservation 90 L Ed 168 1125, government grants power in a is not uncommon of such §§ § 43 641-648; 869; of estates. USCA 43 USCA See, power § The of to ter 16 reservation 32. USCA part the lessee’s interest as to minate grant posses aof likewise consistent with the land is sory estate. greater importance classifying occupant’s
Of by the over is the control reserved transferor interest distinguished premises, as from the the use of the right to terminate the estate created. reservation of again recognizing cases a lease are bountiful Here though subject respects is in some even lessee’s use proposition illustrated is lessor’s control. part in a of the area store the cases which operated par as a to a concessionaire to be “leased” Although department. there conflict is some ticular authority, holding there are numerous cases This re the concessionaire’s leasehold. though been even lessor reserves has reached sult space any designate occupied to be at City Dry Co., 14 Beckett v. Paris Goods Cal time, (1939); 123 relocate the de 122, 2d 96 P2d (D.C. Drug Supp partment, F Co., In re Owl 1935); discharge employees, Beckett or to lessee’s Nev Dry City supra, 123; P2d at Co., Paris v. Goods Co., 311 Mass v. McLellan also, see Stratis Stores
411 (1942); supervise ALR 42 NE2d 142 1393 or 282, 532, employees, Drug supra, Co., re 12 F lessee’s In Owl Supp policy, or dictate In re 444; at lessee’s credit Drug Supp requires supra, 12 F at Co., Owl or 444; receipts turn all that lessee over to lessor’s cashier, City Dry supra, Co., Beckett v. Paris 96 P2d Goods supra, at also v. McLellan see Stratis Stores 123; Co., 311 at or that all be conducted Mass business 531-532; Drug supra, in In re Co., the name Owl lessor, Supp generally 12 F at or that the business is 444; to conform to the standards of the Meers v. lessor, App Protzmann Co., Inc., Munsch 217 Div 217 541, (1926). NYS 258 256, adjudicated recognized cases
Other
have
the crea
part
tion of a lease where lessor has reserved a
premises.
use of
Harrelson v. Miller
Lux,
&
(lessor
(1920)
182
188 P
408,
Cal
800
reserved use of
right
dwelling
room
certain
in the leased
and
to
pasture
premises);
v. Ar
four animals on
Polner
ling Realty,
(1949) (space
194 Misc
86
891
598, NYS2d
apartment building
laundry
leased to installer of
equipment);
Anderson,
McKennon v.
49 Wash2d 55,
(lease
(1956)
major portion
There is for the corporeal leasehold other be cre though right ated even the transferee has the use premises only specified purpose. for a limited Leases commonly limiting contain covenants use specified premises purposes. demised In re Owl Drug supra (space department store leased for Co., goods department); toilet Auto Loan Commercial App (1949) Corp. Keith, v. 79 Ga SE2d 381 268, 269, 53 (use financing”); restricted to “loans automobile Georgia Candler, Asa Inc. v. Theatre Co., G. 148 Ga 413 (to (1918) LRA1918F 389 226, 96 SE 189,
188, catering to the best operated theater “as a first-class Heywood Ind people”); Fulmer, v. class of (“exclusive (1902); LRA 491 NE “excluding specified all gravel” time all sand lease); premises to be a parties held from said other *17 NW 380 142 Iowa Son, 486, 119 Miller and v. Denecke supplies storeroom (1909) (right in electrical to store Tynes own); purposes v. of his for used lessor (“ (La App 1959) leased Kelly, ‘to be 116 55 54, So2d Daly, only’ ”); v. 287 “drug a store” Grossenbacher as 1926) (“ (Mo App a shoe ‘to used as be 782 781, SW living only, privilege of with retail store ”); Conover, v. Amusement Co. rear’ Burns & Schaffer moving picture (for (1933) A 304 111 168 257, NJL Corp. Operating only); v. Colonial theater business 34 NYS2d Inc., 879, Misc Serv., & 178 Hannon Sales (1942), 36 NYS2d 885, Misc reversed 178 117 116, App 217 (1942), 39 NYS2d 411, 265 Div modified 745 (to “only for automo (1943) for a showroom used accessories”); Miller, Lamken v. and automobile biles (grant (1935) of concession 190 44 P2d 544, 181 Wash track); Line Terminal Co. race food at Greene to sell (1940) (lease 10 901 122 SE2d Martin, 483, v. W Va wharf). public of many privilege of use is
In cases where part a of the land itself the of to the severance limited Lehigh Zinc grantee’s a lease. is described as 14 37 219, 150 S Ct 665, v. US Bamford, & Iron Co. Republic (1893); Iron & Nelson v. Steel LEd 1215 1917); (8th Coal F Berwind-White Cir Co., 240 285 1903); (3rd Lewes F 313 Martin, v. 124 Cir Min. Co. (1 Terry) 21 8 A2d Graves, 189, 40 Del v.Co. Sand Knight supra; Heywood (1939); v. The Fulmer, v. Rep Am 692 Ind 17 al., 105, Co. et 47 Indiana, Etc.,
413
(1874);
Royal Mineral
Minn
Ass’n.,
232,
v.
132
State
Owsley’s
(1916);
122
In re
Minn
Estate,
People
Phillips,
Ill
NE2d 281
119,
v.
67
394
Spence
(1915); Barns
Lucas,
La
70
796
763,
v.
138
So
(1909);
A 207
Co.,
338,
dall v.
Gas
225 Pa
74
Bradford
(1884).
Hague,
a full
v.
discussion
Duke
107 Pa 57
See
& Gas
Summers,
of the nature of oil leases
1A
Oil
(Perm
Similarly,
tenancy
seq.
ed) §§
is rec
151
et
solely
mining pur
ognized
land
leased
for
where
(C
poses.
Wappoo
C
Mills,
Malcomson v.
85 Fed 907
Hardy,
1898);
A for use as a railroad of land corporeal way only interest. has been held to create a Benity, Sawyer 5 Railroad v. 118 Central Co. Pacific 1878); (C.C. R. v. R. Co. Nev. Tennessee Coosa R’y. Rep Ala Am Co., East Alabama 75 51 State 516, Ry. Dooley, (1883); 4 Alaska Alaska v. 475 Cent. Co. (1910); Trimmer, v. York, Etc., New R. R. 53 184 Co. (1890); A Rutland Railroad v. 761 Co. 1, NJL (1898). 42 A 984 See, Comment, 71 Vt Chaffee, (1951). L Rev 380 Or Springer already alluded the case of have
We
(1959), in which
Plaintiffs *19 Forsyth distinguishing and a In a lease license. v. 9 P2d Nathansohn, 139 Or P2d 633-638, (1932), plaintiff brought an action to recover alleged to be dne under a “lease” executed to $700 de- fendant. The instrument which action was brought “Trapping Option.” was entitled Lease and It “ plaintiff was couched the of a terms lease. The ‘de- * * * Trapping Privileges mised and leased ” following on the described lands.’ The “lease” was Trapping Purposes Only.” “for Defendant covenanted pay specified to sum “as rent.” The instrument fur- provided ther was entitled defendant occu- pancy log premises; plain- house located on the “ grazing rights tiff reserved ‘all on said lands covered right trap this and lease; further reserves the coyotes and wildcats’ defendant ”; was authorized to assign party; plaintiff the “lease” to a named reserved to re-enter breach. Defendant’s answer, “ question which described the instrument ‘a trapping privileges contract for in and around the ” G-ray’s marsh and lake known as Lake, Idaho,’ de- ground fended sign on the that he was induced to plaintiff’s representa- instrument as a result of false During tions. the course of the trial defendant took position “[t]he document is a license rather than appeal argued a lease.” On defendant that the instru- ment awas lease but that it was void because it did not definitely describe the land demised. The instrument “[n]ine described the land as twenty-eight hundred ” designated acres’ in three sections 90/100 “ ” acreage all of another ‘a total section, of 1,568.90.’ Defendant contended that the instrument could not be a lease because did it not locate the 1,568.90 acres in argument sections mentioned. To answer this plaintiff contended that the instrument was “an ex- privilege go upon clusive license or certain described trapping purposes only.” lands for rehearing Then on *20 profit argued awas that interest created defendant agreement prendre. that if a The court conceded trapping contemplated done on the was to be that the prendre profit plaintiff’s would have been land a trapping that the disclosed created. But evidence plain- (for Gray’s muskrats) Lake; to be done in was only to the as a means of access tiff’s land to be used by created the shift- Faced with the confusion water. by parties, ing the court said on theories advanced rehearing [the instrument] was reason- “since it that adopted ably capable we as a license, of construction by suggested it the defendant the construction of The court and held it license.” the circuit court “ [w] that conclusion is war- believe e still added, ranted.” correctly held that lease think that the
We court parties did seems that the was not It clear created. possession of the acres was to 1,568.90 intend that the plaintiff pass The reservation in the to the defendant. clearly graze quite right trap and to animals premises. plaintiff control over the retained shows privilege granted was for a limited fact that the The preclude type the find- does not, itself, of use Forsyth ing created. But in the case, that a lease was in the at the transferor bar, the situation case unlike trap graze expressly cattle and to reserved the might endanger predators which his herd. More- considering possible uses of the the other land over, grazing, including its use involved, considerably granted more narrow than the inter- was granted at bar. in the case est by plaintiffs relied
The other case
Strand
Barbey,
(1934).
owned state below low water mark in the absence of a the wharf authority grant of to do so from the state. With the resting ground necessary upon was not this it decision grantees’ interest court to for the describe concluding upland. The reasons for that the court’s convincing. grantees are had á license not The court said: rights questioned are fact to be “The military fact reservation; exercised right Barbey (1) personal and the Colum- (2) at revocable Association; Biver Packers
bia (3) permits grantees use the island for will; single purpose only; (4) confer does not a grantees possession (5) and fact island; stops granting short that Barbey conferred an land in the con- his associates estate a license and that the instrument creates vinces us at 441. lease.” 145 Or “personal,” was non- i.e., fact that the interest assignable, it or that was for that was revocable, it preclude single purpose does as we not, shown, have finding factors that a lease is created. The men- quotation (4) (5) in the the court under tioned *22 inquiry simply which the seeks to state conclusion test. Barbey,
Upon of v. a re-examination Strandholm opinion supra, are of the that the interest created we aptly a be described as leasehold would more there as a than license. rather expressly holding have found no cases that the
We graze granted privilege a a of holder of interest Taylor Grazing Act is a leasehold interest. under Sumrall, 121 v. Ariz 526, Garcia 58 P2d However, possessory (1942), that a inter- the court assumes 640 Grazing grantee Taylor of a created Act est
419
plaintiffs
ease
received
“lease”
lease. In that
Taylor Grazing
year
Act. Before
one
tinder the
one-year
appli
plaintiffs
expiration
made
term
year term
cation for a renewal of the lease. After
years
expired
had
five
was delivered
new lease for
plaintiffs. During
period
expiration
between
delivery
of
old
lease and the
of the second lease
plaintiffs
pasture
continued to
their livestock on
permitted
land covered
the lease.
their
Defendants
graze
brought
plaintiffs
cattle to
on these lands and
trespass.
plaintiffs
an action of
The court held that
expira
were “tenants from month month after the
possession
good
tion of their
their
lease,
was
against everyone except
the landlord.” 121 P2d
purport
plain
at 643-644. The court did not
to describe
during
tiffs’ interest
the term of the executed “lease”
regarded
but it is evident that the court
this interest
at
time as that of a
lessee with the concomitant
possession.
involving grazing
Other cases
leases have treated the lessee’s
as an
estate in
possession.
v. Greer,
Shreeve
65 Ariz 35,
420
(1942). Yake, v. M. Huber Petroleum Co. But J. cf., (Tex 1938). App 121 670 Civ SW2d analysis foregoing Upon it is the basis plain acquired interests the our conclusion that the possessory present in nature in the case were tiffs meaning the of ORS and “held under a lease” within 307.060. are even if their interests
Plaintiffs contend
regarded
unconstitu-
ORS 307.060
as leaseholds,
principle
ground
the
of
that it violates
tional on the
immunity
the fur-
and on
from state taxation
federal
against the federal
ground that it discriminates
ther
property
government
is leased.
to whom its
or those
directly impose a tax
not
does
ORS 307.060
upon
government;
the les
upon
tax is
federal
paid
leasehold
not
that the tax is
In the event
see.
affect
subject
does not
the lien
foreclosure;
government
fee.
in the
See
federal
interest of
City
78 S
355
Ct
Detroit,
466,
v.
US
United States
of
v. Al
(1958).
States
424
United
Cf.,
2 L Ed2d
474,
County,
L
legheny
88
Ed
908,
64 Ct
174,
US
S
322
levy
Although
a tax di
(1944).
state
1209
property
government
its
rectly against
federal
Mary
Congress,
v.
McCulloch
without
consent
(1819), (4 Wheat.)
Plaintiffs’ they govern are the federal instrumentalities of ment can be sustained. the leased Plaintiffs use private purposes; they lands for their own do not in any represent government sense the of the United making Township in States such use. United v. States Muskegon, supra. of argue imposition
Plaintiffs next that the of a upon gov tax under 307.060 lessees of the ORS federal ernment results in discrimination because lessees hold any ing government under lessor other than federal subjected are not to an ad valorem tax. be As will dis imposes upon cussed 307.110 a similar tax below, ORS property lessees of leased from the state or its sub by non-exempt divisions. land is owned Where land legislature fit, lord the has seen as matter of admin collecting provide in istrative convenience to tax, against for one assessment the landlord rather than separately to evaluate assess interests of the landlord and tenant. such a Under method of assess legal tax ment incidence of the is land but lord the assessment reflects the value of in terests of both landlord and tenant and the burden of eventually part the tax at falls, least, higher tenant in the form of rent. Hammond Lumber County Angeles, App Los v. 104 Co. Cal 235, 285 (1930). P 898 The entire interest the land subjected including tax, interest of the tenant; separately interest is not treated tenant’s for tax simply purposes expense collection to avoid the separate of a inconvenience assessment. If the land reversionary exempt tax lord’s the state 422 separate tax then choose to the lessee’s interest. permitted escape
The lessee should not he
the taxa
merely
reversionary
tion of his interest
because the
happens
exempt.
interest of the landlord
tax
De
County
Diego,
Homes,
Luz
Inc. v.
San
45 Cal2d
(1955);
Plaintiffs v. Dumas Dist., School (1960), sup- US 4 L S Ct Ed2d 384 port argument question of their that the tax in is dis- criminatory. In that case the state of Texas imposed upon premises a tax held defendants under a lease government. from the federal The court found that similarly under the tax statutes of Texas situated property polit- lessees of owned the state and its subjected “distinctly ical subdivisions were to a lesser subject burden.” Lessees of state land were to tax only if years, the lease was for a term of three or more irrespective all whereas lessees of federal land, obliged pay were term, the tax. under Further, paid Texas statutes lessees of state lands a tax on the value of the leasehold interest, whereas lessees paid of federal lands a tax on the value full fee. Finally, imposed no tax was lessees of the state where the option, lease was terminable at the lessor’s whereas lessees of lands held under federal leases with option such an were taxed. findWe no similar dis- parities Oregon under the statutes between the burden political on lessees from the state or its subdivisions
425 government. Plaintiffs from the federal and lessees in which our to our attention instances have called exempt specifically the interest from taxation statutes holding lease from the state: land under a lessees (exempting “property leased to or rented ORS 307.110 operated by attending college or un- school students Higher Board of Edu- der the direction of the State “employes exempting by cation” and leaseholds held municipality political subdivision state, (ex- employment”). an such 307.120 incident to ORS empting property municipalities real owned personal property ports or dock real and owned property to the extent to which the commissions municipal purposes. leased for certain may principle The that a state not discrimi against require nate the United States does exempt state in each instance where it enacts a statute ing public from taxation state land leased for certain purposes provide exemption a similar lessees very likely federal land. It is in the that enactment of exemption exemp if not of such most, all, statutes gov tion did not include land leased from the federal simply legis ernment because did not occur to it pur lature that federal lands would be used for the poses giving exemption. rise to Moreover, principle forbidding require discrimination does not parity perfect in the treatment taxation of the of state and federal use lands. tax burden im posed on the land users federal be heavier than imposed on the users of state land if the differ justified. can ence in treatment As stated in the Phillips imposition “[t]he of a heavier tax case, burden property imposed than on lessees of on les federal exempt public property justified of other must be sees by significant differences between the two classes.”
Phillips
supra,
Dist.,
v. Dumas School
ROSSMAN, J., plaintiffs, are I am satisfied that the who livestock upon government-owned graz- no lease the have men, ing I am also land with which this suit is concerned. plaintiffs no interest satisfied that the have that against which an ad valorem tax be assessed land can under 307.060. dissent. I, therefore, OES majority’s adapt
The efforts to the law of land- and tenant the needs of this case render it clear lord to body controversy that of law does not fit this that are taken with it which this court has unless liberties never before seen fit to embrace.
Among principles property real the law which may govern relationship' which is the established when grants person, a tract of one who owns to his land, right pasture upon neighbor a to cattle it there is the profits prendre. Analy- principle a “An known as See majority a The Prendre,” sis of Profits OLE 217. grant privilege pasture “The to livestock states, possessed grantor profit lands which is the on principle prendre.” That of law which is venerable employed by age appears been with and has this court The American to fit well this case. Law Institute has “profits prendre” the title abandoned refers principle as an easement. to See Eestatement of the Property, g. comments f and the §450, Others Law, simply profit.” as “a refer to it profits a principle known The function profit, define is to refer as prendre, I will to which agrees parties rights one of them when of two upon there- land and take his enter the other that it say, defines, Likewise, or coal. timber let us from, rights parties majority when concedes, as the pasture right grants neighbor to another one Secretary present upon case the his land. In cattle Management) (Bureau for a of Land of the Interior plaintiffs gave consideration valuable grazing land with which pasture livestock plaintiffs’ abut lands suit is concerned. this government-owned land. employ of landlord and case the law If we this body subject of law to will have to tenant we have to hold and in the end will strains, some severe (in and tenant landlord the law of order to render posses- plaintiffs applicable) had exclusive *29 grazing in this suit. lands involved sion of the vast they possession had exclusive to hold that have We will notwithstanding the fact that: pas- land for use the Plaintiffs could 1. determining nothing
turage purposes else. In and significance must bear in mind fact we of that says, majority opinion which in the the statement privilege have the to he does not “In the sense property proscribed les- activities, use possession is not exclusive.” see’s representatives plaintiffs must allow 2. The upon Department enter of the Interior land at will. agents plaintiffs allow “federal as The must 3. upon game to enter the land at wardens”
well any time. permit prospec- plaintiffs must miners, 4. come to cut timber and those who to enter tors carry property operations upon and on their at any manager the district of the Bums district time; juris- Department of the within whose Interior, question diction the land in the testified that located, groups just priori- mentioned had individuals ties over cattlemen. plaintiffs permit 5.. The likewise must hunters and fishermen to enter have access carrying pursuits.
the land in on their plaintiffs permit government 6. The must depletion forage if to close the land is threat- by drought, epidemic, ened fire or other causes. plaintiffs permit acreage 7. The must their altogether government be reduced or canceled if the finds it is excessive that the land is needed to community supply assure to a a water itor community needed as the townsite for a or as feed- ing grounds right-of-way purposes. or for plaintiffs permit 8. The must the cancellation rights they through any of their if lose, cause, abutting they they applied land which owned when grazing rights. for the Department Mr. Donald Z. Robins, of In- Grazing Burns terior, which District, includes lands question, testified that there is some timber Department engaged land and this that the was in sell- ing explained purchaser, upon it. He cutting that the the timber “must also make skid trails, roads, so testimony across the lands.” forth, His which is un- contradicted mentioned instances in which ranchers’ rights have been cancelled or curtailed when it de- veloped pur- the land could be used for better poses.
Mr. Robins testified that in districts as *30 grazing well as in land that lies outside of districts in Lake and Klamath per- the Counties rancher is not place upon April mitted to stock the land before 1 and by must it off have October 31. seven Thus, months period grazing. for is the maximum allowed Since grazing purposes only, rancher can use the land for for seven it, his interest in whatever it extends he, year only. regu- months of the Mr. Robins mentioned Secretary promulgated lations which authorized just when limitations mentioned stated that personnel put sufficient was it into available would be question. effect in the area in He called attention provisions plaintiffs’ lease that the limi- enable present put tations to be into effect instance. impossible In the face is for above it me to plaintiffs possession believe that have exclusive grazing lands. it will be land, observed, only is useful not for but also for recreation, mining. for the timber the land and for It is government clear that desires to maintain close scrutiny agents through pre- over the land its so as to overgrazing vent and destruction of wild life. More- plaintiffs it manifest over, that the no have need They possession. for exclusive desire sufficient rights they may so that run their livestock keep land and off the livestock of That others. result accomplished profit: can be Restatement of the Property, b. Law, §450, comment foregoing Prom the we see the law of land- employed lord and tenant should not be in this case. impossible plaintiffs It hold that have exclu- possession giving sive to that without term most meaning. startling say for Moreover, this court to plaintiffs possession that the have exclusive will sub- ject excessively large. They them to tax bewill taxed something they for which have no need whatever. Upon profits governed the other hand, law has through similar situations the centuries and fits the needs this case.
430 expounded many employed and times
This court has prendre. profits The a principle law known of Bingham, subject v. is that our decisions first of Rep in which 152, 3 Am St P 523, 15 Salene, 208, 14 Or facility, set forth with his usual Justice Chief Lord, stated: lucid manner. He doctrine in “* * * Rights man in the one exercised participation accompanied in with another, of soil the rights pasture profits of thereof—as of the soil prendre. profits digging a termed of sand—are or [*] [*] granted to the of some land
In that case the owners right plaintiff their land. hunt wild fowl right thus of our court held The decision profit prendre. given Fleischner, a v. was a Winslow employed the rule which also 922, 110 223 P 554, Or profits prendre in the decision of the stated case, of a Bingham leading in case this v. “is the Salene right country upon to hunt. It is the nature of there held: * “ l* * right upon lands of to enter pur grass, pasturage, cut for for the another to hunting, fishing unnavigable
pose in or for an right an in the or a stream, land, ” profit a take the soil.’ supra, Bingham v. Fleischner, Winslow v. followed supra. Forsyth Salene, Nathansohn, v. 139 Or 9 632, Isherwood, 11 P2d v. 1065; 35, P2d Salene 74 Or 1036, LRA 299; 144 P Ann Cas 1914B 40 NS 1175, 542, Hume v. Isherwood, v. 55 106 P 263, 18; Salene Or Rogue Packing Co., River 51 83 P 92 P 391, Or 237, Rep P Am LRA St 31 NS 732, 396, employed profits prendre either the doctrine of spoke it The as the law of this state. Hume decision held that another’s land to use shore thereby taHng drawing fish “is Ms nets thereon prendre.” profit a agreement ruling that which the
Instead of (Bureau Secretary plaintiffs and the Interior Management) Land effected is a we should hold lease, majority prendre (easement). profit it has bypassing given whatever for effect no reason just overruling the decisions cited. *32 against alleged property in
The real an interest by County a which assessed tax is owned Grant commonly government kind federal and is of the called grazing It is more than in 40,000 land. acres area and subject Taylor Grazing (48 § is to the Act USCA 315 through §315o). plaintiffs, are The who ranchers, graze upon privilege given stock the land under the by to them the instrument wMch I have mentioned. agreed a instrument is entitled but it is lease, principle that is a its nature issue of tMs suit. The plaintiffs agree- fact that the use the land under the just County ment wMch I mentioned caused Grant levy challenged by county the tax this suit. The claims plaintiffs upon an have in land wMch an ad valorem tax can be assessed. The tax was levied under ORS 307.060wMch authorizes the taxa- tion of “a lease or other interest or estate less than fee simple” by person property held a in real owned government. plaintiffs
The document entitled lease wMch Secretary signed and the contains some of the ex- pressions appear sig- which in leases. it However, is nificant that terms such as “lease “demised and to,” “grant let “rent “to have to,” to,” to,” and to hold for generally appear a term which of,” leases that con- wholly a lessee an fer are absent from interest, “possess” “posses- one. the words and tMs Likewise, paper. The once in this latter do not occur even sion” purpose gives of a to confer no indication possession “pos- plaintiffs if of the lands, merely possession and mean exclusive session” we employs paper use. The such terms as “grazing authorized use” “such “use of the lands,” use.” paper with which we are con-
In all likelihood the carefully by attorney prepared a skilled cerned was Department who is a member of the staff of expressions The fact that he avoided such Interior. “possess” significant. It is also as “demised” significant speaking possession that in lieu of he expressions “graz- chose such as “use of the land” and ing appear use.” The words that in the instrument very give purpose to the rancher a limited evince “grazing only. use of the use” land, is, page question of the instrument The first nothing printed questionnaire more than a in which applicant gives description his name, address, description of the land which he owns, land which he and a of the kind seeks statement and number *33 pasture upon of the stock which he will the land. In upper right hand corner of the instrument in which permitted applicant Secretary is not to write the enters the amount of the “rental” in the event that the application granted. is In the lower left hand corner Secretary years (normally in fills the number of applicant may ten) which not more than for use Secretary the land. In the event that the authorizes signing then the latter instrument, becomes the “lease.”
The remainder of the instrument consists of rules to which the rancher must conform in the event that given largely he is the use of the land. Those rules are Taylor Grazing provisions of summations of the Secretary regulations and of the which the has Act promulgated to facilitate the administration of that example, part pro- act. For this the instrument overgraze; (2) (1) the rancher he vides that must not regulations must all of and for the observe the laws game protection (3) and animals he must birds; employ precautions prevent grass, reasonable brush grazing (4) or forest he use the land fires; must purposes only, upon gaining etc. The rancher, comply the land, use would have to with those laws regulations in all events.
The amount of “rental” which the rancher must pay by negotiation bargaining, not determined through Secretary but the use of which the rule promulgated very purpose. the Interior has for that it is seen that the so-called Thus, “lease” is not effected agreements normally in brought the manner that are ordinary about in but the manner in which licenses are obtained.
Obviously, determining in whether or not the docu just granted plaintiffs ment summarized to the an grazing against land which an ad va necessary lorem tax can assessed it will be for us provisions. to consider the above mentioned But since Taylor Grazing Act is the source of the Secre tary’s authority agreements to enter into such governs give all federal lands, we must atten tion to that statute. In we must fact, deem that it is part making of the instrument itself. In the latter controlling statement have in I mind rule the con agreements, struction of authorized statutes, which expressed Whitehead, follows Walker v. 83 US L21 Ed 357: place “The laws which exist at the time and *34 making where it is a he a contract, the part of it. This performed, form into and enter validity, con- affect its alike those which embraces struction, discharge and enforcement.” following Personal Industrial from is taken The Budget F2d Co., 80 327: v. Bankers Citizens construing recognize a contract that “We must read statute statute, rests which into the contract.” Jurisprudence, and Tenant, Landlord American
In 32 expressed page in these words: § rule is existing and the statutes rule that “The time a contract land at the law of the settled part it read into and must be it made become contrary except in- discloses a the contract where applied leases.” has been tention majority rule that the observes I do not believe solely They give attention in those authorities. stated which the ranchers words of the instrument to the sign. Secretary majority The makes the Interior of the turn its own definition the entire case although “possession” word it ascribes to that word recog- meaning court has never before which this give that must attention not am satisfied we nized. I provisions paper to the but also regulations concerning Grazing Taylor and the Act Secretary promulgated. of the Interior has it which important objec- that an take into account must We Taylor Grazing preservation Act is the tive of the grow upon grasses our semi-arid natural them lands. If which render those lands and destroyed grasses land become dust are grasses through preserves natural act bowl. by providing supervised grazing and restricted, produced by (25 per cent) part of the income
435 improvement. expended for lands the latter’s shall through Eegnlation grazing part of is achieved in the supervision rancher’s of the land. use As the majority recognizes, itself “In sense that he the does proscribed privilege the to use the land for not have possession is the lessee’s not activities, exclusive.” possession we see that the rancher’s use or of Thus, purposes the one of Further, land exclusive. the Taylor preservation Grazing Act the is the In wild life plish lands. order to accom- purpose that as we have rancher, seen, must permit federal enter at will officials to the land. also We have noticed that several such as others, fed- agents, prospectors, eral miners, hunters, fishermen, rights to have the use the land that lumbermen, priorities have over the rancher’s. Those circum- gathered regu- which are stances from the act and the by Secretary written lations show rancher possession. does not have exclusive Taylor Grazing The Act was enacted in 48 1934, purpose. 1269. Stats Its title indicates It its follows: stop injury public grazing “To to the lands preventing overgrazing and soil deterioration, provide orderly improvement, their for use, development, industry to stabilize the livestock de- pendent upon public range, pur- and for other poses.” Taylor Grazing Prior to the enactment of Act helped open range. stockmen themselves Os- gives borne v. United States, 145 F2d an 892, account preceded pas- of the conditions which and induced the sage says: of this act. That decision pioneer ‘emigrant’ days
“In of western unappropriated America immense areas of territory freely otherwise unused were used grazing. government not The stockmen practice objecting in to this but from refrained ways encouraged privi- it and in time this various Supreme lege, use the words of Court 305, S.Ct. Houtz, 320, 326, Buford v. 133 U.S. * * implied an L.Ed. growing became nearly custom of out license, * * years held to This license was hundred rights as between the li- be the basis censee various private and other individuals but not as be- government.” the licensee and the tween practice which manner lax flourished purpose overgrazing. principal *36 of The caused the evil Grazing Taylor that Act is the elimination of evil. Taylor majority note of the fact that
The takes government- Grazing applicable types of Act is to two large types owned land. of the two consists of One Secretary § of the act authorizes the areas which 315 grazing a district. After he to constitute into has by placed a it referred to the land in such distirct is employed by Secretary. designation The other applicable type lies outside of land to which the act is grazing districts and is unsuitable for inclusion in of interspersed privately any. It with owned be Taylor Grazing in the Act in land and is described way: unappropriated, this unreserved “vacant, * * * public domain -sosituated as lands of the not any grazing justify their inclusion in district.” The type. land involved in this suit is of the second The majority repeatedly requires indicates the act that types of land must be dealt with the two in a materially they manner. The fact that different so they misconception labor under a believe indicates meaning majority, referring of the act. The permit run which a rancher secures to livestock upon grazing district states: lands, “* * * grant privilege graze under The 3 is made two instruments which are Section Grazing ‘Ap- entitled Permit’ and ‘-Year
plication Grazing For License or The Permit.’ operates permit when as the it- latter, endorsed, permit granted grazing self. The for the of a during designated period certain number of cattle permit described in the aas certain number permit animal-unit months. The does not describe specific permittee area of land which the designa- is entitled to run his cattle other than the grazing tion of the district to which he is limited. privilege granted permit under a Section 3 permits may granted exclusive; to more than person single grazing one for a district. grant right “The form of instrument used to graze quite to entitled For under 15 is Section different. It is ‘Application To Lease and Lease of Lands Grazing application, Livestock.’ This when accepted by agency, the federal constitutes the lease grazing permit granted itself. Unlike the under legal Section description the lease contains right grazing the land to which the extends terms range, township, government section and lots. The lessee has the exclusive to use the de- against scribed land for per- all other * * *” sons. Although majority states that *37 the methods which the quite two instruments are issued “is differ- I am ent,” aware of no material difference. In each instance the application rancher an submits which upon signed by states its face proper that when goes federal official it into effect in the one instance “permit” as a and in the other instance a “lease.” In each case the document itself states the number type and may of place upon stock which the rancher permit the land. It is true that the “does not describe specific area of land” and that the lease so-called grazing description. contains a we noticed that But, Secretary’s is an area which the order has district designation and which is known established gave description it no which he to it. needs Therefore, permit. Upon the metes and bounds in the other type grazing the second of land does not lie in hand, any grazing district be described must, therefore, pays rancher in some manner. The amounts which the privilege pasturing for the of his whether livestock, grazing he uses a district or the land which has not substantially organized been into the same ac- one, unchallenged testimony cording to the of Donald Z. manager Man- district for the Bureau of Land Robins, agement of the Burns District which includes the land testimony question. of The Mr. Robins indicates grazing in administration whether in a lands, grazing or outside of district are treated in sub- one, way. stantially the same majority “permits may granted
The states that person single grazing more than one for a district.” obviously That is because a district true, in- majority of of cludes tens thousands acres. Next, the lessee “has exclusive use the states, de- previous paragraphs land.” scribed I believe conclusively opinion show that “the lessee” this does possession. always yield not have exclusive He must priority prospectors, fishermen, miners, of- hunters, Department agents ficials Interior, departments government loggers. other enter These individuals the land all enjoy prerogatives. occasions and there their The land forty question consists more than thousand acres. Secretary approxi- of the Interior deems that mately provide forage 5 acres are needed to for a cow. *38 plaintiffs The are in number and each seven has the great to run livestock in the domain with which plaintiffs we are concerned. one When made application pasture his to area 500 cattle and 100 horses he described the area of land which he preferred pasture. as the He had no other means of designating plaintiffs what he wanted. The other assuring against followed the same course. In himself overgrazing Secretary obviously had to know not only the number of livestock which the rancher wished pasture to but also the number of acres which he sought. That data in turn affected the amount to be paid by Surely, nothing significance, the rancher. so far simple as this case turns these concerned, facts. majority quotes 315p § argues
The of the act and that it shows that “lessees” have a “substantial inter- 315p § est” in the land. I find in no indication of a purpose grant to to the rancher “substantial interests” grazing 315q pertains only land. Section which range to those permits who hold land under and li- provides rights censes that when their are canceled on appropriation account of of the land for war or na- they paid tional defense “shall be out of the funds appropriated project or allocated such such department amounts agency head of so using the lands shall determine to be fair and reason- provision certainly able.” That does not indicate that permittee any the licensee or the has in the rights, they may land or that his whatever be, amount 315q comparable to 315p lease. § Section merely government’s the two purpose evidence the fairly treat advantage the ranchers and take no of them develops when it longer enjoy the ranchers can no land. majority amplified has its citations cases Taylor Grazing Act. I were concerned with the which *39 any all None of have examined of them. are decisive rights that issue involved in this and none held case by possessed plaintiffs constituted snch as these those Range Casey (Nev) a lease. Northam Association v. by majority, the 339 P2d which is not mentioned any precedents speaking the nearest comes of the issues with which we are concerned. It declares “questionable” rights it is whether the ranchers’ con- a but “the not ma- stitute since distinction was lease, pass upon terial” the did not the issue. The fact court way “questionable” that it went out of its to declare it significant. The I am above is the situation. satisfied that determining whether or not the rancher an receives government-owned grazing in the land we paper must not confine our attention to the entitled upon “a lease” nor must we make issue turn the our understanding possession.” of the term “exclusive appear paper That term does not in the entitled “a nothing lease” and there is in the circumstances re- vealed the record that shows rancher wished to gain possession. exclusive the record Likewise, fails Secretary to indicate that the of the Interior wished possession. the rancher to have exclusive We must give Taylor G-razing material attention to the Act and regulations Secretary to the which the has written pursuant authority to the conferred him the regulations act. When the act and are studied it be- comes clear that the act does intend that anything rancher shall have but the use of the land grazing purposes together with sufficient other rights so that he exclude intruders. It is true paper that the “a entitles itself lease” but when that employed at who used it ex- term was the trial those necessary plained some sort of a that it was use parties. referring relationship to the word in necessary was The chances are that since it entitle way, paper in word was some “lease” selected “profit as the most understandable. have labeled it a To away prendre” frightened have rancher would sponsored purposes those who defeated Taylor Grazing entitling paper Act. But, care avoid “lease” was exercised to the use the terms already have that such mentioned, is, we terms “grant” “possession.” “demise,” word given prominence “use” was in the act. relationship parties
I am satisfied adjudged profit prendre. should § Prop- *40 Comment b to 450, Restatement of Law, says: erty, pos-
“An easement is an interest in land possessory session another. It not, itself, interest. The owner of is not entitled it, therefore, protection given having pos- to the which is those to sessory interests. The fact that an owner of possessory easement is not deemed to have a inter- respect est in the with land to which it exists indi- degree cates lesser of control of the land than normally by persons possessory had who do have person way interests. Thus, who has over land necessary has such control of the land as is way him use enable as to his and has no such control any making enable him to exclude from others use the land which does not interfere with his.” It quoted will noticed that the last sentence of the paragraph expresses a rule which could meet the needs adequately yet permit of the ranchers all to enter provisions who have a to do so under the Taylor Grazing reading carefully Act. A con- Canyon Sheep opinion in Co. Ickes, Red v.
sidered Taylor Grazing based F2d which was ranchers could ex can no doubt Act, leave rights if the ranchers’ amounted clude intruders even nothing more than a license. I dissent.
Perry, joins in this dissent. J.,