111 Neb. 224 | Neb. | 1923
This is an action, originating in this court, for a writ of mandamus, to require the present governor to execute to relator a deed in fee simple absolute for 240 acres of land in Boyd county, Nebraska, formerly a part of the state’s common-school lands.
Relator alleges that on the 18th day of July, 1917, the state of Nebraska, in the manner prescribed by the laws of said state, sold to relator the lands in controversy, and that thereafter, and on the 4th day of October, 1917, the commissioner of public lands and buildings issued six sale certificates to said relator for said lands, all identical in form except the description of the land. Each of the certificates was for 40 acres of land and contained the following reservations: “All mineral, coal, oil, gas, potash, sand, gravel, clay, volcanic ash, tripoli, and saline rights are reserved to the state, with the right to prospect for ■ and develop the same.” It is further alleged that on the 25th of January, 1921, upon the full performance of all obligations of said sale of lands aforesaid, including the full payment of consideration, the former governor issued a deed conveying said lands to relator, a copy of which is attached to and made a part of the petition, which deed contains the same reservations as the sale certificates; that the said res
The respondent admits the sale of the lands by the state of Nebraska to the relator at the time stated; that the certificates and deed were issued to him and contained the reservations, as alleged by relator, and that demand has been made for a deed without such reservations; and for a defense alleges that, at the time the relator received a deed for said lands, to wit, on the 25th day of January, 1921, the Constitution of the state of Nebraska provided and now provides that the sale of salt springs, coal, oil, mineral, or other natural gases, on or contained in the land belonging to the state, shall never be alienated, and that prior to the 18th day of July, 1917, the board of educational lands and funds of the state of Nebraska had, by resolution duly passed, determined that, in all contracts entered into by the state of Nebraska for the sale of its school lands, there should be a clause reserving to the state all mineral, coal, oil, gas, potash, sand, gravel, clay, volcanic ash, tripoli, and saline rights; that, at the time said lands were appraised for the purpose of sale to the relator, the appraisers took into account the reservation of said mineral rights by the state in fixing the value of said lands, and that .relator, at the time he purchased the land, well knew that the state was reserving all mineral rights in said lands, and accepted the deed to said lands and recorded the same with knowledge of the reservations therein contained, and that he is thereby estopped to now insist that he is entitled to receive from the state a deed without reservations. The relator has demurred to the answer.
Whether the provisions of the Constitution and statutes of the state, in force when the deed was executed by the .former governor to relator, authorized or permitted such reservations as were inserted in the deed is immaterial.
As to the question of estoppel because relator accepted and recorded the deed executed by the former governor and did not bring this action until some months thereafter, it is not made to appear that the state has changed its position in reliance thereon, or that it has been in any wise prejudiced by such action on the part of the relator. The presumption arising from the facts pleaded and admitted
It- is argued that mandamus is not the proper remedy, because, in effect, it seeks to try title to lands, and for the further reason that relator has an adequate remedy at law when any attempt is made by the state to assert any mineral rights to the land. We think it is perfectly clear, under the law, that the state has no rights in the land by virtue of the unauthorized and invalid reservations, and no title to land is involved in this controversy. We do not think that relator has an adequate remedy at law. In the event that relator should desire to sell or mortgage his land, as he has a perfect right to do, the reservations in the deed conveying the land to him would materially interfere with such right. He contracted and paid for a fee simple title,- and is entitled to a deed that insures him such title.
It follows that the writ should be allowed.
Writ allowed.