65 P.2d 1103 | Wyo. | 1937
Lead Opinion
On April 16, 1929, the State Board of Land Commissioners of this state granted a mineral lease covering section 16, township 48 north, range sixty-five west, in Weston County, Wyoming, to one Jason F. Ralston, authorizing the lessee to remove bentonite from the land for a period of five years, the lease expiring April 15th, 1934, and providing for a rental of $100 per annum, payable annually in advance on April 15 of each year, that amount to be applied on a royalty, payable to the state, of two per cent of the value of bentonite mined. The lease was not in conformity with the statutes of this state, for it is provided by section 91-803, Rev. St. 1931, that the royalty on mineral or oil lands shall be not less than 5% of the gross output of mineral or oil from the lands. No bentonite was mined during the term of the lease. The lease was duly assigned on February 13, 1932, to Charles F. Martens and Leman Davis, and the assignment was approved by the Land Board on April 7, 1932. These assignees made a further assignment on October 5, 1933, to appellant, and approval of the board was given on October 9, 1933. On January 8, 1934, the Wyodak Chemical Company, the appellant, filed with the Commissioner of Public Lands an application for a lease of the land above mentioned, for the purpose of mining bentonite thereon, stating that it had purchased the former lease. The sum of $111 was remitted with the application to cover the fees and advance rental. The application was accompanied by a letter stating that appellant would commence to mine on this tract "within a year or so." On April 13, 1934, Edwin Busfield, respondent herein, also made application for a lease of the same land, remitting the sum of $211 to cover the fees and advance rental for the land. The appellant was notified of Busfield's filing. On May 1st, 1934, the Commissioner of Public Lands allowed Busfield's application with the recommendation that he should be required to *271 pay a minimum royalty of 7 1/2%. Appellant, after notification of the action by the commissioner, took an appeal to the State Land Board, asking the reversal of the decision of the commissioner, and that it be granted a lease on the land. It did not offer to meet the amount of rental offered by respondent. The latter answered, asserting that no mining operations had been carried on or attempted under the former lease, and praying that the decision of the commissioner be upheld and that he be granted a lease on the land. A hearing was had before the Land Board on November 15th and 16th, 1934, and on the latter date the Land Board rescinded the action of the Commissioner of Public Lands and ordered the sale of the lease on the lands mentioned at public auction to the highest and best bidder. The commissioner on November 21, 1934, fixed the date of sale for December 11, 1934, and so notified the parties. On November 27, 1934, appellant asked for rehearing, which, however, was ignored and rejected, and the appellant duly notified thereof. Notice of appeal to the district court was given by appellant, one notice being filed with the Commissioner of Public Lands on December 8, 1934, and one in the district court of Weston County, Wyoming, on December 12, 1934. On the latter date the district court fixed appellant's bond on appeal in the sum of $750, which was filed on December 22, 1934. In the meantime, and on December 11, 1934, a sale at auction was duly held of the lease of the land. Two bids were submitted, one by the American Colloid Company, and one by respondent. The appellant submitted no bid. The respondent's bid was the highest, offering an advance annual rental of $1320 and 20% of the value of the refined bentonite mined from the land. The lease was thereupon sold to respondent. Thereafter, and on the same date, the appellant offered in writing to meet *272 the highest and best bid made at the sale, without, however, tendering any money.
The appeal to the district court was duly heard on February 10, 1936. It appeared on the trial that the appellant had done some development-work on properties neighboring on the land in question, during 1935, expending the sum of about $5000, but it does not appear that any work was done at any time on the land covered by the lease in question. On February 21, 1936, the trial court rendered its decision, finding that the decision of the State Board of Land Commissioners upon conflicting applications for mineral lease on the land in question should not be set aside and that the right of Edwin Busfield to a lease of the land pursuant to his bid made on December 11, 1934, should not be disturbed. Judgment to that effect was accordingly entered, and from that judgment an appeal has been taken to this court.
1. The appeal taken to the district court was an appeal from the action of the State Board of Land Commissioners in directing a sale of the leasehold in the land in question. The district court upheld that action, and the only real question before us is as to whether or not the court erred in doing so. It is the contention of the appellant that the board had no right to order such sale; that the appellant had a preferential right to the lease, and had, accordingly, the right to meet the rental bid by the respondent at the time of his application. It relies upon the provisions of section 91-801, Rev. St. 1931, which provides:
"The board of land commissioners is hereby authorized to lease for a term of ten (10) years, with the preferential right in the lessee to renew his lease for successive periods of ten (10) years, any state or school lands supposed to contain coal, oil or minerals, and to make and establish rules and regulations governing the issuance of such leases and covering the conduct of *273 development and mining operations to be carried on thereunder."
The attorney general contends that the right given by section 91-801, supra, means a renewal on the identical terms and under the identical conditions of the old lease; further that the old lease was in violation of the statute in not requiring a royalty of five per cent of the gross output of minerals, and that hence the right of renewal did not exist at all in this case. If the term "renewal" must be construed that narrowly, then the contention would be valid. It may bear the meaning attributed to it by the attorney general. Grace v. Strickland,
2. That disposes of the appeal taken from the board to the district court, since, as stated, it was taken from the order directing a sale at auction. The trial court, however, apparently by consent of the parties, passed upon the validity of the sale to the respondent, and they expect us to do so here. It is hard to see, since the order directing the sale at auction was legal and valid, how we can now say that it was not permissible to carry it out. Counsel for appellant think that the appeal stayed the hands of the board. The statute relating to appeals from the board provides as follows:
"The party appealing shall, within thirty days after the decision complained of, file with the commissioner of public lands, a notice in writing to the board of land commissioners stating that such party intends to appeal to said district court from said decision; and at the same time shall file a like notice in the said district court; and upon the filing of said notices, the appeal shall be deemed to have been taken; provided, however, that the party appealing shall within fifteen days after the said notices have been filed, enter into an undertaking to be approved by the clerk or the judge of the said district court and to be given to the appellees, and to be in such an amount as said court or the judge thereof shall fix, but in any case, shall not be less than five hundred dollars, and conditioned that the appellant *276 shall prosecute his appeal without unnecessary delay and will pay all costs and damages which the appellees or any of them may sustain in consequence of such appeal."
Counsel seem to contend that the statute itself, in giving 30 days in which to file notice of appeal and 45 days in which to file a bond, stayed the hands of the board. That contention is a novel one. No authorities to that effect have been cited and none have been found by us. Counsel argue:
"Surely the Board cannot proceed to nullify the appeal by proceeding, within the time limit for giving the bond, to carry out the order which has been attacked. It is not the law that an appeal from the land board can be made abortive by the board in all cases. * * * Surely the board cannot be permitted, during the time fixed for giving the bond, to carry out its order from which the appeal is taken, and thus completely destroy the statute granting the appeal."
We fully agree with counsel that the board cannot render an appeal abortive. If the appeal herein had been sustained, the action of the board in directing the sale, and as a result, the sale itself, would have been nullified. The board in proceeding to hold the sale, and the respondent in bidding at the sale, took the risk that these proceedings might be invalidated by the court pursuant to the appeal, just as an execution creditor (leaving cases in which a stay bond is given out of consideration) takes the risk of having to repay money made pursuant to a sale in an action in which an appeal has been taken. The rights acquired under the execution would fail, if the appeal should succeed. It would be otherwise if the appeal should be unsuccessful. These principles have come in question in cases involving entries on United States Public Land. It was held in Anderson v. Woodward,
3. And finally it is contended that the appellant should now be permitted to take the lease at the terms offered to and accepted by the respondent. As we have already stated, the appellant, after the offer of the respondent had been accepted, offered to take the lease at respondent's terms, but no advance rental, in money or the equivalent thereof, accompanied appellant's offer. The board required the cash rental (not the royalty) in advance. Rule 87, in force January 8, 1932. The rule provides that "the advance rental on all mineral operating leases shall be fixed by the board of land commissioners in each individual case." We held in Walls v. Evans,
Furthermore, we are not satisfied that the record before us affirmatively and convincingly shows that the appellant is entitled to a preferential right. We cannot believe, as already indicated, that the legislature meant to give such right without reference to existing circumstances and conditions, and that it meant to deprive the board of land commissioners of any and all discretion. No development work whatever was done under the old lease. There was evidence that some development work for mining bentonite was done on neighboring lands. This was in 1935, after the expiration of the old lease. It was not done on the state land, nor does the testimony show that the development work on neighboring land also at the same time was of benefit to the state. We have examined the old lease, which is in the record. There is no express covenant therein that the lessee and his assigns will do development work on the property. However, practically all its provisions relate to mining, and it is stated that the lease is executed in consideration of the sum of $100 minimum rental per annum, and "also in consideration of the payment of royalties as hereinafter provided," thus indicating that the payment of royalty was one of the conditions of the lease. That necessarily presupposes *281
the mining of the property. In the case of McPherson v. Richards,
"In this case it clearly appears that the lessees did not perform their contract by clearing the land and building houses as agreed in the first lease. They did not make the improvements they contracted to make, and therefore they are not entitled to a preference in the leasehold."
The case is authority, or very nearly authority, that the appellant had no preferential right in the case at bar. At least it throws a doubt on the power of this court to overturn the action of the state board of land commissioners herein. See also Welch v. Bohart,
4. A motion was filed herein to dismiss the appeal because of non-compliance with rule 37 relating to abstracts of the record. In view of our conclusion on the merits of the case, we need not pass on it. But it may not be amiss to elucidate the rule somewhat at this time. An abstract of the record is not intended as a mere index. 4 C.J. 389. While it should be concise, it should be sufficiently complete, so that the court can take and examine it, and from it determine the merits of the case. It has been well stated in 4 C.J.S. 1478:
"Since an abstract is intended to take the place of the record in presenting and determining the case in the appellate court, and the court will not usually look into the record for matter not covered in the abstract, it is essential that the abstract be full and complete enough, in and of itself, without the necessity for referring to the record, clearly to show the errors relied on, and present so much of the record and bills of exceptions as is pertinent to a decision of the questions presented for review."
To the same effect is 4 C.J. 391. *283
From what we have said, it follows that the judgment below must be affirmed.
Affirmed.
KIMBALL, J., concurs.
Addendum
If in my judgment the court was required to dispose of this case on its merits, my concurrence in what is said in the foregoing opinion would be announced, believing, as I do, that what is there said is an accurate statement of the law governing the matters considered. I think, however, the motion to dismiss should prevail. The abstract of record submitted by appellant in large measure fails to comply with rule 37 of this court. It is only necessary to check it with the language of that rule to perceive wherein that is so. Notwithstanding the warning given by the filing of the motion to dismiss no effort was made to correct the abstract save by adding the required counsel's certificate that it was a "true and correct abstract." This it certainly was not under the rule aforesaid. I realize perfectly that dismissal under the rule is discretionary, but I think this is a case where that penalty should properly be imposed. Upon the authority of Brewer v. Folsom Brothers Co.,