STATE LANDS. Is a well an improvement on State land for which compensation should be made? HON. MARK G. WOODRUFF, April 27, 1905. Register, State Board of Land Commissioners, Denver, Colorado. Dear Sir-In reply to your request for an opinion from this office in the matter of the appraisement of the improvements on lots one (1) to six (6), inclusive, in block thirty-one (31) of the State addition to the townsite of Littleton, incidental to the application to purchase said land by W. G. Alexander, I beg to submit the following: It appears from the records of your office that, upon the application to purchase this tract of land, Mr. Thomas A. Curry, an appraiser from your office, was sent to ascertain the value thereof, together with the value of the improvements made thereon by certain lessees. In his report, among the valuations of other improvements, he appraised the value of an artesian well at two hundred dollars. The property was duly advertised and sold to the said W. G. Alexander, and the required per cent. of the purchase price was paid, but the purchaser now protests against the payment of the appraised value of the artesian well, claiming that the appraiser had been deceived as to the value thereof for the reason that the well had long ceased to flow, and, as the opening is covered, and not apparent from the surface, the appraiser must have obtained his information from some other source-in this instance from the lessee-who willfully misrepresented the value of said well; and the purchaser further contends that said well is of no practical value to the land at this time. Section 3640, Mills' Annotated Statutes, provides: 66 * * * If any land be sold on which surface improvements have been made by a lessee, said improvements shall be appraised under the direction of the State Board. When lands upon which improvements have been made as above, are sold, the purchaser, if other than the owner of said improvements, shall pay the appraised value of said improvements to the owner thereof, taking a receipt therefor, and he shall deposit said receipt with the State Board before he shall be entitled to a patent or a certificate of purchase." "Surface improvements," as used in the above section, refers to such improvements as would add to the value of the property for the purposes for which it was purchased and could be used. Whatever sums have been expended experimentally without increasing the value of the land or being of benefit thereto would not be considered surface improvements within the meaning of this statute, for which the purchaser should pay; and in this case, although the lessee might have expended a considerable sum for the drilling of this artesian well, still, if the well is not flowing at this time and is of no material benefit to the land for the uses for which the land is suitable and was purchased, then the purchaser should not be required to pay anything to the lessee for such well. On the other hand, even if this well has now ceased to flow, if by sinking to a further depth it could be caused to do so, then such sums as were expended by the lessee might be considered to be of benefit to such property and he should receive a reasonable compensation therefor. However, this question is one of fact, which, it appears to me, it would be proper for your office to ascertain through further investigation by the appraiser, and I would recommend that such action be taken by you. Respectfully submitted, N. C. MILLER, By I. B. MELVILLE, STATE LANDS. If lessee refuses to fix price on improvements on State land, it is the duty of the State Board of Land Commissioners to direct an appraisement. In the sale of land, lessee is given preference. It is the policy of the board to protect the interest of lessee if it can be done without damage to the State. December 20, 1905. HON. MARK G. WOODRUFF, Register, State Board of Land Commissioners, Denver, Colorado. Dear Sir-I am in receipt of your communication of December 19th, stating that the board had ordered eighty acres of land . to be sold to A. J. Anderson, and that the lessee of the land will neither fix a price upon his improvements nor consent to an appraisement by this department. You ask for advice under the circumstances. It is not necessary for the lessee to consent to an appraisement. If he refuses to fix a price upon the improvements, it is the duty of the State Board of Land Commissioners to direct an aprpaisement to be made. Section 3640, Mills' Annotated Statutes, provides: "If any land be sold on which surface improvements have been made by a lessee, said improvements shall be appraised under the direction of the State board. When lands on which improvements have been made as above are sold, the purchaser, if other than the owner of said improvements, shall pay the appraised value of said improvements to the owner thereof, taking a receipt therefor, and he shall deposit such receipt with the State board before he shall be entitled to a patent or certificate of purchase. All such receipts shall be filed and preserved in the office of the State Board of Land Commissioners." In People vs. Tynon, 2 Colo. App., 131, it was decided that this provision of the statute was for the protection of the lessee and is not a condition precedent to the exercise of the power to sell land. Mills' Revised Statutes, sale at the end of any Sections 3630-c and 3636, volume 3, provide that lands leased are subject to period of five years covered by the lease. Of course, the lands are subject to sale at the expiration of the lease, and the lessee's privilege to renew the lease is subject to this power of the board to make sale. The lands must be advertised before they can be sold, and the lessee has an equal chance with any one else to com pete for them. Section 3640, Mills' Annotated Statutes, provides: "The State Board of Land Commissioners may at any time direct the sale of any state lands, except as provided in sections twelve and thirteen of this act, in such parcels to actual settlers only, or to persons who shall improve the same, as they shall deem for the best interest of the State and the promotion of the settlement thereof. All sales under this act shall be advertised, etc." "Sales shall be made to citizens of the United States, or to those who have declared their intention to become such.” The purpose of advertising the sale is to secure the highest price for the land. The effect of this, in some cases, is to sell the land to another than the actual settler. It is therefore not neces sary for a person who desires to purchase land to be an acutal settler or to have made improvements upon the land at the time he bids at this public sale. Section 3647, Mills' Annotated Statutes, provides: "That all lands sold under the provisions of this act, or any interest therein, shall be exempt from taxation for and during the period of time in which the title to said land is vested in the State of Colorado, and in case any land sold under the provisions of this act, shall not, within one year after date of sale, be actually settled upon, or in good faith improved, according to the spirit of this act, such land shall revert to the state, and the purchaser shall be entitled to repayment of any purchase money, deducting the amount required to pay the lease on such land for the time held by purchase at the same rate as provided for leasing school lands he may have paid on the same." The construction of this act, in connection with section 3640, above, indicates that the purchaser must become an actual settler, or improve the land in good faith, according to the spirit of our laws concerning state lands, and that if he fails to do so, his title shall revert to the State. It is evident, therefore, that a person may become the purchaser of land without actual settlement or making actual improvements at the time of purchase. The policy of the State Land Board has always been to sell the land to the lessee, unless some good reason can be given for action to the contrary, subject, of course, to the highest bid at public auction, as provided. It should be carefully ascertained whether the actual settler upon this land has had every opportunity to bid for the same, and if he has failed to give as much for the land as his brother, it is not the fault of the State Land Board. If there is any misstep taken in this direction, I believe he can remedy it by an action at law. So you should be careful to see that the legal requirements have been observed. If the brother should go into court, for instance, and show that A. J. Anderson did not intend to make valuable improvements or settle upon this land, I think probably he could cancel the sale. on. The laws of Colorado provide for the sale of State lands to actual settlers or persons who make valuable improvements thereAnother statute provides that in case of failure to make actual settlement or improvements according to the spirit of our laws, for a period of one year, the land shall revert to the state and the party shall receive back the money paid to the state. The provision of our law requiring sale at public auction is to secure the highest price to the state. Where this is done fairly and honestly, the lessee, if not the highest bidder, must turn over the land to the highest bidder. The provision of the law furnishing a mode of valuation of improvements placed on the land by the lessee is for the benefit of the tenant, and failure of the latter to accept the price will not prevent the State from making the sale. This has been decided by the Court of Appeals. But the person receiving a certificate of purchase is remanded to his remedy at law to secure posses sion of the land, and he is there furnished an adequate remedy. Where a person purchases State land and makes valuable improvements and gives a mortgage upon them, and makes default in payments due the State, the State has a right to take possession of the land and the improvements, but it is the duty of the State, if the mortgagee will keep up the payments and protect his security, to allow him to do so; for any other course would prevent purchasers from securing money for the purpose of making improvements upon the lands. So far as your letter advises me, there is no irregularity of this kind; and the board may make an order fixing the value of the improvements, upon the report of the appraiser being returned to it. This is for the protection of the brother, and it then remains for A. J. Anderson to take such steps as he may deem advisable to secure the land. He must tender the price of the improvements, and that price must be fixed legally before the tender is any good. Construction of statute making provision for the payment of the expenses of appraisers for the State Land Board. APPROPRIATIONS. July 13, 1905. HON. A. E. BENT, Auditor of State, Denver, Colorado. Dear Sir I am in receipt of your communication of July 13th, making the following inquiry: "Section 10, page 323, Session Laws 1905, providing for the appointment of appraisers of State land, and fixing the amount of their salary, furthermore provides that: "There shall also be appropriated the sum of three thousand dollars ($3,000) per annum for the purpose of defraying the expenses of said appraisers while visiting the different portions of the State in the discharge of their duties.' "I shall be pleased to have you advise me if we shall consider this act equivalent to an appropriation and issue warrants against it for the expenses of these appraisers." |