HomeMy WebLinkAbout770658.tiff $ v mEmoRAnDum
Wi`p e To JUNE K. STEINMARK AND MEMBERS OF Date November 23, 1977
THE BOARD OF COUNTY COMMISSIONERS
COLORADO From THOMAS 0. DAVID, WELD COUNTY ATTORNEY
Subject: Sale of County-owned Mineral Rights to Surface Owners of Property
Affected.
You have posed the question as to whether or not the County may sell the
severed mineral rights that are now owned by Weld County, directly to
the surface owners of the particular real property lying over the severed
mineral interests owned by the County.
The answer to this question is NO.
Section 30-11-101 , CRS 1973, provides that a county has power to:
. . . .purchase and hold real and personal property for the
use of the county. . . .
and
. . . .to sell , convey or exchange any real or personal property
owned by the county and make such order respecting the same
as may be deemed conducive to the interests of the inhabitants.
It is a well settled premise of law that a county holds property as trustee
for the citizens of the county. The property that is held by the county
must be held and used for governmental purposes. If a county no longer has
use for certain property, whether real or personal , then it has a common law
obligation to dispose of this particular property. When a county does dispose
of its property, whether real or personal , it absolutely must sell the property
for a price commensurate with its actual value. Any sale for less than a
fair and reasonable consideration would be tantamount to making a gift to
the purchaser, and, in such an event, would undoubtedly render the individuals
(Board of County Commissioners) personally liable to the people for the
difference between the fair market value of the property sold and the actual
price received by the county for any such property.
Although there is no statutory requirement that a county advertise for bids
prior to the sale of real property owned by the county and declared surplus,
and consequently offered to the public for sale, it is, nevertheless,
required by the Weld County Administrative Code: County Property section,
paragraph 4(a) that if the County sells any property such as the severed
mineral rights which have been received as a direct result of non-payment of
taxes, then, in that event, all sales shall be public and notice of such
sale shall be posted in a public place in the County Courthouse at least
thirty days before the date of sale, and such notice of sale shall also be
advertised in two issues of a newspaper of general circulation in the
County in which the property is situated, said newspaper notices to appear
770658
,� ' /Er; J,,, . /7/
June K. Steinmark
i' Board of County Commissioners
November 22, 1977
Page 2
one week apart and within the thirty days prior to the date of the sale.
Also, the Administrative Code provides that the Board of County Commis-
sioners may reject any and all bids which are less than the current actual
value as set forth by a certificate from the County Assessor.
This policy appears to conform to what one would term "prudent business
standards" as it applies to the sale of surplus property owned by the
County.
It is also denoted that the Home Rule Charter requires property to be
disposed of by ordinance.
Absent any statutory authority, no preference may be given the owner of the
surface lying above county-owned severed mineral rights sought to be sold
by Weld County. To give any such preference would obviously impair the value
of the trust property held by Weld County for the benefit of all of its
citizens.
Although the mineral rights in question, when severed, were improperly
severed by Weld County, according to the Supreme Court decision of Farnik
vs. Board of County Commissioners of the County of Weld, 341 P2d. 467,
nevertheless, the opinion in that case did point out that corrective
legislation was passed by the General Assembly which validated the
reservation of oil and gas and other mineral rights reserved to counties
prior to 1949 (Laws of 1949, Chapter 140, Section 4).
The Farnik decision was handed down July 13, 1959.
It is to be noted that most of the mineral rights which are now owned by
Weld County, were acquired many years prior to the Farnik decision, and
furthermore, few, if any of the original owners of the mineral and surface
rights, which were severed during the tax sales of the early and mid 1930's,
are still in possession of any of the real estate so affected. Accordingly,
it would appear that there would be no equitable reason for preference of
the current surface owners in the event that mineral interests owned by Weld
County are sold in the future. It is also understandable, however, that the
County may wish to adopt a policy supportive of any legislation which would,
in fact, have the affect of merging the severed mineral interests with the
current owners of the surface rights. As the Farnik case points out, however,
county commissioners are officers with only delegated powers; they possess
only such powers as are expressly conferred upon them either by the Consti-
tution or statutes, and, in addition, such implied powers as are reasonably
necessary to the proper execution of those expressly conferred. Robbins vs.
Boulder County Commissioners, 50 Colo. 610, 115 P 526.
It is, therefore, my opinion that unless some specific power is granted by
statute, the Weld County Commissioners may not, under the current state of
the law in Colorado, prefer a surface owner in the event of a sale of a
county-owned severed mineral interest.
TH0MA/ . DK!)-
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Weld County Attorney
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