Rayburne v. Queen , 78 Wyo. 359 ( 1958 )

OPINION

Mr. Justice Parker

delivered the opinion of the court.

Annajean A. Rayburne, lessee of a half-section of grazing land under a State lease was denied a requested renewal by the Commissioner of Public Lands who concurrently granted a lease on said property to Mr. and Mrs. O. H. Queen, conflicting applicants. The Board of Land Commissioners affirmed this decision, and the district court later dismissed an appeal therefrom as being filed out of time. Such dismissal on appeal to this court was reversed, and the case was sent back for further proceedings. See Rayburne v. Queen, Wyo., 303 P.2d 486, 306 P.2d 367. At a trial de novo, the district court affirmed the board’s decision, and Mrs. Rayburne new prosecutes this appeal.

The district court found inter alia:

(1) That the lessee had “violated the terms of her lease by subleasing * * * without the approval of the Board of Land Commissioners * * *, or without sharing the profit which she received therefrom with the State of Wyoming, as required by law.”

(2) That the lessee “overgrazed, in person or by her sublessees, * * * to the substantial detriment of said lands and contrary to the best interests of the State of Wyoming,” and

(3) As a conclusion of law that the “Board did not act illegally, fraudulently or with grave abuse of its discretion.”

Appellant specifies these as error, urging that they are contrary to both the law and the evidence and are unsupported by the record. The burden of appellant’s complaint is the lack of any competent evidence in the papers certified and forwarded by the commissioner. Respondents take no issue with this point, and they could not well do so because such papers disclose no transcript of the testimony and, except for copies of the legal instruments, no evidence which might be recognized in any court, either trial or appellate.

Respondents rely rather upon the testimony developed before the trial court as a basis upon which the propriety of its judgment is to be determined. We have on numerous occasions discussed what is meant by a “trial de novo” for which provision is made under § 24-306, W.C.S.1945. Although we said in Miller v. Hurley, 37 Wyo. 344, 262 P. 238, 242, “that the court is to determine the facts for itself without regard to the determination of facts as found by the board,” we explained this statement when we said that this should in no way interfere with or destroy the discretion inherent in the Board of Land Commissioners. We further clarified our views in Howard v. Lindmier, 67 Wyo. 78, 214 P.2d 737, when we indicated that the court from the facts before it should determine whether or not the board might reasonably have arrived at its decision. This is another way of saying that the findings of the board if supported by substantial evidence should be approved by the court on the trial de novo, and we think that such substantial evidence may consist of competent testimony either (a) taken before the board¹ and properly preserved or (b) adduced in the trial before the court “as in the trial of a civil action” (§ 24-308, W.C.S.1945). Having ascertained in the instant case that except for copies of the legal instruments there was no competent evidence forwarded by the board, we look then to the record of testimony before the trial court to determine whether or not its findings and conclusion were warranted.

Respondents contend that appellant’s lease had been violated under the provisions of both § 24-113, W.C.S. 1945, and the lease itself. They urge that appellant having violated the terms of her lease is entitled to no preference right of renewal. As relates to her transactions concerning the State land, Mrs. Rayburne testified that one William Sipe had occupied her ranch in 1952, 1953, and 1954, and had authority from her to run approximately 130 head of cattle on her property. She stated that there was no fence separating her deeded land from the State land in controversy and that both her cattle and those of Sipe ran on all of the land. She said that she received $400 from him in 1953 and something over $600 in 1954, but she insisted that her dealings with him were pursuant to written instruments known as Trade Labor Agreements and that none of the money was for the use of the State land. She said that she discussed one of these agreements with Shoopman, the commissioner’s field representative, and had filed the other in the land office. The record indicates that the agreement claimed to be shown to Shoopman granted Sipe authority to pasture his own cattle on the Rayburne lands both deeded and leased in return for his agreement to perform certain work on the fences and upon his payment for cattle pastured thereon at the rate of one dollar per head per month for a period of five months, while the other agreement which was filed with the commissioner contained no reference to the leased land here in controversy.

Respondents in arguing that appellant’s dealings with Sipe constituted a sublease cite 51 C.J.S. Landlord and Tenant § 37 b, pp. 555, 556:

“A sublease occurs where a lessee underlets the premises or a part thereof to a third person for a period less than the lessee’s term. If the lessee reserves to himself a reversionary interest in the term, it constitutes a sublease, however small the reversion, and regardless of the form of the instrument. * * * The presuasive elements of a sublease have been said to be exclusive possession, a fixed term, a fixed rental, and a right of reentry in event of covenant broken.”

Appellant counters with the argument that previous opinions of this court have held pasturage arrangements not to be within the prohibition against subleasing and cites Stauffer v. Johnson, 71 Wyo. 386, 259 P.2d 753, and Hawks v. Creswell, 60 Wyo. 1, 144 P.2d 129, as authority for her position. An analysis of these cases does not indicate them to be helpful on this point. In Hawks v. Creswell, it was admitted by the former lessee, at least tacitly, that there was a sublease. The rejected applicants argued that the old lessee had been paid a thousand dollars in rental for the State and deeded lands and that the State had received none of the money. The commissioner, the board, and the trial court having successively found that there was no violation of the lease, this court merely declined to disturb such findings of fact. In the Stauffer case the leased land with extensive improvements placed upon it by the lessee was the base of an “operating ranch unit.” Additionally, the grazing permitted on a portion of the leased property was incidental to agricultural purposes, and the lessee did not at any time surrender full possession.

Dictionaries, encyclopedic works, and reported cases, variously define the word sublease, but the definition quoted by respondents from 51 C.J.S. Landlord and Tenant § 37 b, pp. 555, 556, is sufficient for the purposes of any discussion here. Whether there was an actual underletting of the State land in this case with exclusive possession for a fixed term at a fixed rental and with a right of reentry in event of covenant broken is an arguable point. If the trial court believed from all the facts and circumstances disclosed by the evidence that, notwithstanding Mrs. Rayburne’s denial, she had in fact leased the State property to Sipe and was receiving moneys in excess of the amount she was paying for the use of the State land, then the first finding was warranted. However, a party attempting to secure State land because the former lessee has subleased for a cash consideration in excess of the rental paid to the State has the burden of proving this; and where a lump-sum payment is made by a third party, for both the State and the deeded lands, the burden cannot be met by a mere guess as to the apportionment of amounts. See Hawks v. Creswell, 60 Wyo. 1, 144 P.2d 129. The obligation thus imposed is difficult to meet, and a trial court should have considerable latitude in resolving the point. However, respondents presented no evidence in this case tending to show any amounts which Sipe may have paid to Mrs. Rayburne for the State land; and accordingly, we are doubtful that the first finding of the trial court was correct.

We turn then to the court’s second finding relating to the alleged overgrazing by the former lessee. The evidence adduced before the trial court was conflicting. Witnesses testifying on behalf of the appellant indicated that the grass was lush and pictures were introduced to bear this out. Witnesses for the respondents on the other hand insisted that the leased land in question was overgrazed, and one even characterized it as being “like this floor.” They said that the pictures showed redtop which was not palatable to cattle. Thus, the resolving of the question was with the trial court which found that there was overgrazing to the substantial detriment of the lands and contrary to the best interests of the State. In matters where the evidence is conflicting, we are permitted only to consider that which favors the respondent. See Stauffer v. Johnson, supra, and Jacoby v. Town of City of Gillette, 62 Wyo. 487, 174 P.2d 505, 177 P.2d 204. The court must have believed the evidence that the leased land was overgrazed, and we are not privileged to interfere with that finding.

The crux of the case, however, relates to the court’s conclusion of law, finding that the board did not act illegally, fraudulently, or with grave abuse of its discretion. The record of testimony before the trial court shows why this conclusion was correct. Even if it be assumed that Mrs. Rayburne’s agreements with Sipe did not constitute subleases and even if she did not receive moneys from him for the use of the State land, she nevertheless permitted a third person to use such land without revealing in any clear manner to the commissioner or the board what she was doing. We think this fact was one which the board had a right to consider in its determination of what was for the best interests of the State. It is clear beyond question that the preferential right of the former lessee is not absolute but is qualified by the provision that all State lands must be leased in such manner as shall “inure to the greatest benefit to the State.” See the extended discussion in Kerrigan v. Miller, 53 Wyo. 441, 84 P.2d 724. The same principle applies to the alleged overgrazing. This was not claimed by the respondents to be a lease violation per se, but if the board believed as was stated in its action that the land was overgrazed and if the court was similarly convinced by the evidence there presented, such fact was one which might properly be taken into consideration in a determination of what was for the greatest benefit to the State.

The evidence developed in the trial de novo before the district court in general supported the decision of the board. No fraud being charged and no illegal ac.tion or abuse of discretion having been shown, the board’s determination should not be disturbed. See Howard v. Lindmier, supra, and Banzhaf v. Swan Co., 80 Wyo. 201, 148 P.2d 225.

The board, deriving its authority from the constitution² but by the legislature being subject in its decisions to review by the courts, occupies a somewhat unusual position in our State government which is worthy of comment. If the board is to be accorded the full discretion to which we think it is entitled, the district court at the trial de novo should have before it for consideration a true transcript of the evidence which was taken before the board, thus assuring all concerned that the same criteria was applicable in all determinations. The right of appeal authorized by the legislature could thus be most effectively exercised without disturbing the board’s original authority. We broached the subject in Howard v. Lindmier, supra. Now, notwithstanding the correct result in the present case, we think we would be remiss if we did not .more fully voice our views on the subject: The testimony before the board in contested cases should be preserved verbatim and be available to the court in the trial de novo as one of the bases for its judgment.

Affirmed.

1 For a discussion of the rules of evidence which should be applicable in board hearings, see 73 C.J.S. Public Administrative Bodies and Procedure § 75; 42 Am.Jur. Public Administrative Law § 129; 24 A.B.A.J. 630 ff.; 1 Wigmore on Evidence, 3d ed., §§ 4a-4c; and see Lake De Smet Reservoir Co. v. Kaufmann, 75 Wyo. 87, 292 P.2d 482. See also Howard v. Lindmier, 67 Wyo. 78, 214 P.2d 737, 741, 742.

2 Art. 18, § 3.