Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-04-14
LAND LAW OPINION.
Attorney General on the Question Of
Settlers Claiming Preference Right
A VERY IMPORTANT MATTER.
lie Status Of IN Appllcan; for School
Land Ais, Deilued-QucsllOss
and Answer Given.

| tons tubmi,ted by tue State board OF
land commissio ners, regarding the
law on settlers claims and the a.atus
OF an applicant for school land, who
had applied under a preference right,
aud who was Mt the time tho owner OF
| more than 100 acres OF land. Tho
| que tons and answers are herewith
| gwen in full:
| To the State Board OF Land Commits
sioners, Salt Lake City, Utah:
Gontlemen-In your favor OF April
Ito, you submit the following:
| First. Whether or not, inasmuch us
under section II OF tho Land law
| granting all settlers claiming y prefer.
ence right until July LIST, 1897, within
which to make their application, this
board can hually pass on auy spplica.
tiobs end dispose Of any school lands
until after expiration OF time above
| mentloneu.u
"5econd. What would bp the status
OF an applicant who had applied for
school land under the preferences right,
and who was, at the time OF the appli.
cation, or on January l, 1894, ths
owner OF more than l6D acres of iaud.
The land for which ne applied also
having been applied for by smother
settler"
As to your fret inquiry 1 am OF
| opinion that the board Is not legally
prohibited from passing upon pending
applications before the expiration OF
the time IN which applications for
preference rights are to bs made.
Should the board decide TO do 30,
however, and award the applicant the
right to purchase land under a prefer.
| Ion
and before the lat OF July, 1897, mn.
other person should make application
or the same lnud, ami shoula clearly
establish to the board that he was
entitled thereto as against the first
applicant, the former action OF the
bonrd would have to be set aside aud
the ceriific tie OF sale annulled. THIS
would undoubtedly result in com.
plicstions anu perhaps litigation
which Bhould be avoided. About
the only way to avoid sucn
C Implications would be for the board,
If It has tho legal right to do 80. TO
. ttpone final consideration OF these
matters until after the limitation hn,
i. expired In which such applications
F. sbould be made, TO wit, July /, 1897.
That the board has the power 10 defer
! action until this time, think there
can be no question, aud 1t und ubtediy
would be the safer course to pursue In
the premises.
Under your second query, assume
that the applicant" referred to 10 ne
vino had made application Tor the pur-
chase OF school lands under the law OF
1895 and who al the time OF making
hls application. and on luary
l, 1894, was the owner OF more
than 100 acres OF land. TINS
question being, whether the applies.
ton inside unuer the old law, which
was clearly Objectionable because OF
the fact that the applicant was the
owner OF more than one hundred and
sixty acres could now be- taken up and
considered by the board by reason OF
the fact that the Limitation hau been
Increased 30 that the entire holding,
Including that applied Tor, should not
exceed $50 acres.
The application as 1t stood under the
old law Of 1895 would, abstractIy
speaking, be vulnerable to the tech-
meal objection that the party at that
time owned more than one hundred
and sixty acres OF land, aud
strictly construed, might be held
to be insufliclant on this ground.
There Is no legal reason, however.
why the game application could net be
relied under the law OF 1897, and u 1t
appeared TO the board upon the hear.
Ing thereof, that the party on Janu-
AIRY LIST, 1894, or at the time OF making
said application was not the owner OF
more than 4SO acres OF laud including
the land applied ioi; that he was an
actual anu bons Hde settler or occu-
pant thereon; that no had improved
the land In question:; and that he wss,
On January LIST, 1894, an actual seItler
or occupant thereon, he would be
entitled, under sucp application to
purchase sniu lana. The fact that the
same land had also been applied for
by another settler would not change
the rule above stated, inasmuch as
there can be but one actual
and bona ode settler on the
same tract OF land he provided by
law. And 1t would therefore follow
that there could be no other settler
upon such land VINO would BIO able TO
bring himself within tho provisions OF
the law relating TO settlement and i'm.
provement go as to entitle him TO tho
preference right TO purchase the same.
Tbs right o. one party 10 purchase
| the lauu IN question depends wholly
upon the strength OF his own proof to
| bring him within the provisions OF the
law, and not upon the weakness or
lack OF strength OF another whose
| application covers the same land,
Therefore II more than one person APP
plies to purchase the same tract Of
land, 1t clearly follows, that upou tho
hearing OF their applications the board
must determine Ms between Inem and
accord the right to purchase to one OF
them only.
There are two ways In which such
applications might DO treated by the
board. First: To notify all persons
having maue such applications AZ
would, under the law of 1896, be val.
nersoie TO the objections sDUve set
out, 10 ask leave OF the board to reflle
them unuor the law OF 1897.
sscoad: 1 am OF opinion that the
board possesses The power to regulate
tho whole matter by the adoption OF
a rule or resolution spread upon Its
recorJs by which 1t wouiu consider
all such applications us having
been relied since tue taking effect
OF the law OF 1897. such rule
VI the beard properly adopted aud
spread upon lite minutes would have
tho same effect ss a retiling Of each