THE STATE OF NEVADA, ex rel. JACOB SPRINGER, Relator, v. C. S. PREBLE, SURVEYOR GENERAL and ex-officio LAND REGISTER of the STATE of NEVADA, Respondent
State ex rel. Springer v. Preble
Chief Justice Leonard did not participate in this decision.
THE STATE OF NEVADA, ex rel. JACOB SPRINGER, Relator, v. C. S. PREBLE, SURVEYOR GENERAL and ex-officio LAND REGISTER of the STATE of NEVADA, Respondent.
[No. 1251.]
THE STATE OF NEVADA, ex rel. JACOB SPRINGER, Relator, v. C. S. PREBLE, SURVEYOR GENERAL and ex-officio LAND REGISTER of the STATE of NEVADA, Respondent.
State Lands — Application for — Preferred right to purchase — When Mandamus should issue. — Where there is but one applicant claiming a preferred right to purchase lands under the act of 1873, entitled “An act to provide for the selection and sale of lands that have been, or may hereafter be, granted by the United States to the state of Nevada,” the register should proceed at once, under the provisions of the statute, and enter into a contract with the applicant, provided his claim presents a prima fade case, and was filed “ within six months after the date of approval to the state of the lands occupied or possessed by him;” and his duty in this respect, being ministerial, may be enforced by mandamus.
Idem — Application—Requisites op. — The claimant of a preferred right need not, under the act, set forth in his application the facts upon which his occupancy or possession is based, so as to enable the register to determine therefrom whether the applicant possesses the requisite qualifications prescribed by the statute.
on rehearing.
Public Lands — Purchase of- Lands Granted to State — Preferred Applicant Entitled to 640 Acres — Statutes Construed. — Under the act of 1881 (Stat. 1881, 115) amending the act of 1873 entitled “ An act to provide for the selection and sale of lands that have been, or may hereafter be, granted by the United States to the state of Nevada,” as further amended by the act of 1885, (Stat. 1885, 105,) an applicant claiming a preferred right of purchase is not limited to 320 acres, but is entitled to 640 acres.
Application for mandamus.
A. C. Ellis, for Relator.
R. H. Lindsay, for Respondent.
I. The register, when acting on applications to purchase land of the character set forth in petition, acts judicially — with judgment and discretion. (Litchfield v. Register and Receiver, 9 Wall. 577; Gaines v. Thompson, 7 "Wall. 347; U. S. v. Seaman, 17 How. 225; U. S. v. Guthrie, 17 How. 284; IT. S. v. Commissioner of Land Office, 5 Wall. 563:)
II. Neither occupancy or possession of the premises, nor any part thereof is shown by the affidavit. (Sanleey v. Noyes, 1 Nev. 68; Brown v. Roberts, 1 Nev. 402; Staininger v. Andrews, 4 Nev. 59; Robinson v. Imperial S. M. Co., 5 Nev. 44; Kraft v. Carlow, 9 Nev. 20; Eureka M. é S. Co. v. Way, 11 Nev. 171; Lechler v. Chapin, 12 Nev. 65; Cowtney v. Turner, 12 Nev. 345; Rivers v. Burbank, 13 Nev. 399.)
III. Having acted, by deciding against relator’s claim of possession, the writ of mandamus cannot be used as a writ of error or review to reverse the decision of the register, and the writ should be denied. (State ex rel. Treadway v. Wright, 4 Nev. 119; State ex rel. Hetzel v. Eureka Co. Com., S Nev. 309.) It sufficiently appears from the pleadings in the case that the right to purchase the lands in dispute is claimed by “ other persons not parties to the proceedings before the court,” hence the writ should be denied. (State ex rel. Elliott v. Guerrero, 12 Nev. 105.)
By the Court,
Hawley, J.:
This is an application for the writ of mandamus to compel ' respondent to enter into a contract with relator for the sale of certain lands. Relator, on the thirtieth day of August, A. D. 1882, presented to the surveyor general and ex officio land register of this state a written application to purchase certain lands under the provisions of the act entitled " An act to provide for the selection and sale of lands that have been, or may hereafter be, granted by the United States to the state of Nevada." (Stat. 1873, 120.) On the same day and at the same time, three other persons presented similar applications for the purchase of portions of the same lands. These several applications were filed and treated by the register as simultaneous applications. The lands described in said applications were listed to the state, on the third day of March, 1883. On the third day of Sep. tember, 1883, relator presented to and filed with the register a claim of preferred right to purchase the lands under the provisions of section 12 of the act of 1873. Neither of the other parties, or any one else, presented any claim of preferred right. On the twenty-seventh of November, 1885, the register certified the several applications to the district court in and for the county of Churchill, where said lands are situate, and said court, for want of jurisdiction, remanded the applications back to the register. Relator subsequently made a demand upon the register to enter into a contract with him for the purchase of said lands, according to law, and such demand was refused.
If respondent, in the performance of the duties required of him by the statute, had the' right to exercise his judgment ox-discretion in acting upoxx relator's application for a preferred right» then the writ should be denied.
Section 12 of the act of 1873 x-eads as follows: "An occupant or party in possession shall have a preferred right to purchase, not exceeding three hundred axxd twenty acres of land, at the minimum price, for the period of six months after the date of approval to the state of the lands occupied or possessed by him or her; and when two or mox-e persons, claimiixg a pi-eferred right, by x-eason of occupaxxcy ox- possessioix, apply to purchase the same laxxds, the register shall certify such applications to the district court of the .county in which such lands are situated, and notify the contesting applicants thereof. The judge or court shall then appoint a commissioner, in the vicinity of the land so in dispute, to take and report to such court all the testimony of the parties in the case. The contest shall then be tried and determined as ordinary actions in said court; and, when so determined, shall be certified to the register, who- shall proceed thereafter with the successful contestant, in the same manner as if he alone had applied in the premises: and provided further, that a preferred right shall be based upon occupancy or possession, dating prior to any application to purchase the land having been filed with the register. When two or more persons, neither claiming a preferred right, apply to purchase the same lands, the first applicant shall be allowed to purchase."
In contested applications, the register is 'not vested with any discretionary power whatever. His duty is clear and imperative: He must " certify such applications to the district court of the county in which such lands are situated, and notify the contesting applicants thereof;" He cannot, in such cases, exercise any judgment or discretion. He has nothing to do in passing upon or determining the sufficiency of the respective applications. It was evidently the intention of the legislature that the disputed questions of fact arising under the operation of the law should be heard and determined by the courts. If there should be but one applicant claiming a preferred right, then the legislature intended that • the register should proceed under the provisions of the statute, and enter into a contract with the applicant, if his claim was filed within time, and presented a prima facie case.
There is no provision in the act requiring an applicant for a preferred right to set forth the facts upon which his occupancy or possession is based, so as to enable the register to determine therefrom whether the applicant possessed the requisite qualifications prescribed by the statute. The relator, in making his application, used a printed form of " affidavit of preferred right," filled in the blank spaces, and stated on oath as follows: " I am the identical Jacob Springer who made application to the state land register of the State of Nevada on the thirtieth day of August, 1882, according to law, to purchase the following described lands: containing six hundred and forty acres of land, more or less. I claim a preferred right to purchase the same under section 12 of an act approved March 5, 1873, and the acts amendatory thereof and supplementary thereto, and base my claim upon occupation or possession, dating prior to any application to purchase the same, viz., from the month of September, 1876. I have placed permanent improvements on said land of the value of seventy-five dollars, consisting of an irrigating ditch and levee. I also have included said land in my claim by fencing and using sloughs as my boundaries;"
This statement, in so far as it attempts to state the facts upon which his occupancy or possession is based, is very imperfect and indefinite, and, if the register was invested with any discretionary power, would be so unsatisfactory as to justify him in refusing to act. But in examining all the provisions of the statute we are forced to the conclusion that the legislature did not intend to clothe the register with any such power, and that it was his duty in this case to enter into the contract with relator for the purchase of the land.
It is therefore ordered that the peremptory writ issue as prayed for, and that it be directed to the present surveyor general and ex officio land register of this state.
Chief Justice Leonard did not participate in this decision.