Schley v. Vail

DOAN, J. — Plaintiff's action was based upon his preferred right to lease the land. In order to state a cause of action, it was necessary, therefore, to allege in the complaint facts showing such right. The statute (Rev. Stats. 1901) authorizing boards of supervisors to lease such land provides: “Par. 4035 (See. 4). Actual or bona 'fide settlers or occupants who have placed improvements on school or university lands, shall have the preferred right to lease the land whereon such settlement has been made. “Par. 4036 (Sec. 5). ‘Improvements’ within the meaning of this title shall be held to mean anything permanent in character, the result of labor or capital expended on such land in its reclamation or development, and the appropriation of water thereon, which has enhanced the value of the same beyond what said land would be worth had it been permitted to remain in its original state. “Par. 4037 (Sec. 6). Anyone occupying school or university lands refusing or not wishing to lease said land, and other parties making application so to do, the board of supervisors shall appoint three disinterested persons, householders and citizens of the territory, living adjacent to said land, and engaged in agricultural pursuits, if said land is agricultural in character, and engaged in stock raising if the land should be grazing, to go upon said lands and appraise the value of the improvements and appurtenances thereon as set forth in section 5 of this title, and make due return of said appraisement to the supervisors under oath, and they shall file the same, and the party wishing to lease shall pay to the board of supervisors the amount of such appraisement and the per diem of the appraisers, before the board of supervisors shall [230] execute a lease to him for said lands. The money so paid for sucn improvements, the supervisors shall pay to the occupant of the land when he shall vacate said land, and give possession to the lessee. ...” In order to acquire a preferred right to lease such land the above provisions require that a person be an actual and bona fide settler or occupant, and that he has placed on said lands improvements permanent in character, the result of labor or capital expended on such land in its reclamation or development, which has enhanced the value of the same beyond what said land would be worth, had it been permitted to remain in its original state. The appropriation of water thereon is mentioned as an improvement of this character in recognition of the well-known and universally conceded fact that in this arid country an appropriation of water invariably operates to reclaim and develop the land to which it is applied, and to enhance the value of the same beyond what said land would be worth, had it been permitted to remain in its original state. The complaint alleges: “That prior to the said thirtieth day of December, 1905, and during the time plaintiff was occupying said school lands and in possession thereof, he placed thereon valuable permanent improvements, and was during all such time, and is now, in the actual possession thereof, and occupying said improvements and said lands.” This is the only allegation in the complaint tending to show in the plaintiff a preferred right to lease the land, or to impose upon the board of supervisors any duty to notify him of the application of Close to lease the said land, or to appoint a committee to appraise the improvements that are alleged in the complaint to have been placed thereon, and is insufficient to effect that purpose, for the reason that it is required by section 5 that, in order to confer a preferred right to lease, the improvements must not only be permanent in character, but they must be the result of labor or capital expended on such land in its reclamation or development, which expenditure has enhanced the value of the land beyond what it would be worth, had it been permitted to remain in its original state. And paragraph 4037 (section 6), which provides for the appointment of appraisers to appraise the value of the improvements on such lands when the occupant thereof fails to.apply for lease, and another applies therefor, confines such appraisement to “the improvements and appurtenances thereon as set forth in section 5 of this title.” Until, therefore, such improvements [231] as are set forth in section 5 are alleged to have been placed thereon, no duty to appoint such appraisers is shown. The complaint fails to allege that the improvements are the result of either labor or capital expended on the land in either its reclamation or development, or that such improvements or expenditures have enhanced the value of such land, or to allege any facts tending to establish either of these propositions, and the complaint therein is fatally defective, in that it for that reason fails to state facts sufficient to constitute a cause of action, and the general demurrer thereto on that ground was properly sustained. It is urged by the appellant that placing upon school lands a dwelling-house, barns, corrals, fences, cleaning off the brush and undergrowth to prepare ground for grazing purposes, and the cultivation of the ground for raising crops thereon without irrigation should confer upon the occupant a preferred right to lease without the appropriation of water on such land. The answer to this is that in case the land was not susceptible of irrigation, and the occupant was using it for grazing purposes or for dry farming, these improvements unquestionably would confer such right, and constitute one class of improvements contemplated in paragraph 4037 (section 6); but the complaint in this ease does not allege the placing upon the land described therein of any such improvements, and the appellant herein cannot, therefore, be aided by that fact. There is no allegation in the complaint that the improvements are not such as might be readily removed from the land, and therefore, though valuable and permanent in themselves, confer no enhanced value upon the land. A frame house, firmly constructed, would be a permanent structure, and could be properly termed a “valuable improvement,” and might be used by the occupant for a warehouse in which to store goods or machinery or supplies to use on adjacent property, or to sell to operators of adjacent properties, or for a saloon to invite the patronage of employees of adjacent properties; but, if placed on blocks or pillars, as such buildings frequently are, it would not be an appurtenant to the realty, but could be readily removed and neither being the result of labor or capital expended on such land in its reclamation or development, nor having enhanced the value of the same beyond what said land would be worth, had it been permitted to remain in its original state, would not constitute either “improvements” [232] or “appurtenances” thereon, “as set forth in section 5” above cited. The appellant elected in the lower court to stand upon his complaint, and let judgment be entered on the demurrer. Therefore the conclusion reached on this subject is decisive of the case, and renders unnecessary the consideration of the other questions presented. The judgment of the lower court is affirmed. KENT. C. J., and SLOAN and NAYE, JJ., concur.