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Home My WebLink About570023.tiff ///1. l 'rveD 3 Y7t"'C't CQ:1N2 IN:AI POW:.:..: ? I ACTION 20. ,,13;Di9 • FRANK FARNIK, Plaintiff, • vs. FINDINGS OF FACT, CONCLUSIONS OF LAW TIE BOARD OF COUIiTST COINISSIONBRS AND OF TRW COUNTY OF WNW. COLORADO: JUDIOWNT MD DSLCRElt AMERADA PETROL'UM CORPORATION; and THE WRLAND TRUST COMPANY, Defendants. On the 27th day of August, A. D. 1957, this tatter carte on regularly for trial to the Court, without a jury, the Plaintiff appearing by Earl W. Naffn as Naimo W. Johnson, his attorneys, the Board of County Comastssioners of .the County of W ld, dolor+ado, appearing by Robert C. Smith, its attorney, Williar B. Bohlendar appearing of counsel, Amerada Petroleum Corporation awl The Durlrand That Company not appearing by agent or attorney, and the cause having been rmailarly set for trial at said time, upon notices tb all parties, and the Court Yawing read and considered the pleedtfgs and files !stem, and baring cons3.dcrPd all evidence produced, offered add agreed upon by counsel (' subject only to ob- jection as to materiality), at pre.trial oonfsr noe, and having heard and con- sidered all furor evidence adduced herein and bevies been furnished with cosrplete and elaborate briefs by plaintiff and by said defendant Board., and having read and considered said briefs ate.1 examined the statutes and all the authorities cited and arguments advenoed, the Court found generally for defen- dant Weld County and Amerada Petroleum Corporation sad The Durland Trust Oom any and ageAnst plaintiff and directed the attorney for said County to prepare and tender'Findings, Conelasions and Decree at or before Septelibe►r 10, 1957, and to sail copies thereat to ll. cesium', and the matter was eet dram for hearing of such tendered Findings, Conclusions and Decree on Bept.aber 2`a-. Said Findings, Oanaluilxns and Diers* were so tendered sad delivered. Thereafter plaintiff .i- r • f''.l.2d :ii 3 Suggestions 3tk t CT Mat /1 414 insuffi.ciAi.t to settle • raid Ftn•iinee, Cos:c 1us tiVtgr tiT W Pl® t=1 •feitqiy Attorney ?:using confined_ t. f n . ipiekel or: accea+nt (NM ,nest', thy. 1�:R37'3 cc,rtinued until October 1L,, X957, and then again continued to this 12th day of November, 7.957. And the matter now coming on for further hearing and consideration, and the Court row having considered the entire re_ord herein and having examined said tendered. Findings, Conclusions and Decree and having considered plaintiff's suggestions for change therein and having heard all arguments and remarks of counsel and being now fully advised, Roth Find the Facts to be: FINDIBOS OF FACT • 1. This is a suit commenced on November 18, 1955, as an ordinary action N under Rule 105, by Frank Farnik, as plaintiff, against The Board of County Comaissioners of the County of Weld, Colorado, as the principal defendant, and Amerada Petroleum Corporation and The ]gland Trust Company as nominal defend- ants, in which plaintiff seeks to have quieted in his the title to the East Balt (E') of Section Thirty-five (35), in Township Seven (7) North, Range Fifty- nine (59) West of the Sixth Principal Meridian, in Weld County, Colorado, which plaintiff claims under a deed to him made by Weld County, dated 1?seeniher 7, 1943, and recorded January 3, 1944, fin Which deed said County excepted and reserved to the County all oil, gas or other minerals in or under said land. The answer of Amerada Petroleum Corporation denies that plaintiff is the owner in fee simple of the real estate involved and asserts affirmatively that it holds oil and gas leases from both Weld County and plaintiff and asks that the rights of all parties be determines. The Durland Trust Company alleges that said Board of County Commissioners for and on behalf of Weld County, 'Colorado, is the owner of all oil, gas and other minerals in and under said land, subject to an oil and gas lease from Weld County to one Babcock which was duly assigned to Amerada Petroleum Corporation and to an overriding royalty under said lease made by Amerada Petroleum Corporation to The Durland Trust Company and prays judgment that Weld County is . eh owner of sail oil, gas and other minerals, subject to said lease held by Amerada Petroleum Cor• sratien and Ito to said overriding royalty. The defeldent Board fled its knower and Counterclaim by whi:.h it roe tied tllk: sour ,e et' the tranaac a lope between it and plaintiff, denied that plainne s f ever how any r;; tt title or interest %n or u?. the. oil, gas or minerals in or under said real estate, alleged that sa: . cour '-y ' • ,d to Farnik reserved to itself and that it is the owner of all such oil, gas and zinerale subject only to the admitted rights of Amerada Petroleum Corporation, as assignee of the lease from said county to said Bebcock, and to the over- riding royalty of The Durland Trust Company from Amerada Petroleum Corporation under said lease. Said defendant Board further alleges that plaintiff by accepting and retaining without protest or objection the deed to said property excepting and reserving to said county the oil, gas and minerals therein is estopped by his deed to now assert title contrary to the terms of said deed. In the alternative, the defendant county asserts in two separate alterna- tive defenses that if said deed should be considered as having conveyed any interest in said oil, gas or minerals to plaintiff, then and in that event said deed is wholly void because unauthorized and because its commissioner was com- pletely without authority to execute or deliver any deed conveying any minerals and because it therefore did not carry out the intention of the parties, and asks for recission and accounting. Thereafter, plaintiff filed his Reply to Answer and Answer to Counterclaim, by the material parts of which he admitted that prior to the transactions here in issue Weld County, Colorado, was the owner in fee simple absolute of all property involved herein without reservation or exception, alleging that the entire estate of said County was conveyed to and was vested in him by said deed from Weld County to him, alleging that the reservation and exception of the oil, gas and other minerals from said conveyance is void and of no effect. Plaintiff also alleged open and notorious possession of all of said East One- half of said Section 35 under claim and color of title and that he has paid all taxes levied and assessed thereon for a period of nine years prior to the commencement of this action. 2. On and pr or o Dece;yber lk, 1936, The Durlend Trust Comanf was the owner 2(.e) in fee 'Janie r'f the asi ii. f (:4) 0.:.4.12oottcr tit staid tt Ate, th•- �Vi a,Qe Lild3r, said opertei wait for toe tastes v3' 1`'3 'tYy the :ot tt 7 ', ".,o'Teti Witty'a said cte 1Aicat. -'n tattled 6 add ectnty. herea't':r On Novesber tf, i941P, said "geed ,'Gr ed a,aid lands recorded on November -1a, 1940 its'the records ofs�l:H' cot eve nty; : to Weld County without reservation or exception. worsa ''te , Moilkvber 10, 1042, a. drree' quieting title in said property, and adjudging that Weld County, State of Colorado, leis now and was at the time of cc ►tto ant o tF a actim, seized in fee si4fe' of the real estate described in the complaint" was duly entered by the District Court in and for said ccovttty, .Ei +id y of which wee recorded Decem. ber 10, 19112, in the records of said sooty. ?hereafter,. by its deed dated June 15, 1955, said The Durland Trust Company' b7 it -,iz 4 Blain deed recorded July 8, 1955, conveyed said property to ;veld County. On *member 15, A.D., 1046, the absolute, undisputed fee simple title to all of said land, without reservation or exception, was vested Weld County, Colo- rado, which fact is admitted and affirmatively pleaded by the plaintiff. 3. On October 10, 1942, the Hoard of County Cormissioners of said Weld County, adopted a resolution in words and figures as follows: sREMILIfflill ! t Oil), OAS AND iiINEUUL RIGHTS tit 441110OrroOliffilift D7 WELD COUNT!, COLORADO. taMllt honer • lieSteb Offered this i 'liiifin raplailu iadfisiol' moved fie iideptiantt wherSas Weld Coultty has in pest you* acquired by Treasurer's deed wrigr;iIt sales, and new is the owner and possessor of considerable lands in Wsld..Ga:atity, Colorado; and 'Virile discovery has disclosed definite itddibsU i ni'of oil, gas end•ether minerals on much of said lend; tbmt by rsksbn''Mired tIe Hoard of Cvmtty Ceemniseiarfers believes it td 'be to the Vast interest of the omusty and he rebg' deelard tit tell 'the policy and purpose of the Board of County Cocmdssimirez's of ]xi t ounv on all county lands ncdr cnrusd by Weld County, o oradd'or`hiefs►fter acquired by it offered for stile an and after No a der 10, 1942, 1b reeierte too the ooant}' as trantar, �.l the o , z end other mineral! therein, unless see raw •• inwa4'!ef 4 taa.a,T lit 4)0;4)f4jott Nl�li, °dP' $P»i.t; sale and deed tboxyxsry provided however, *ash reaer+sA 4:1$ ga ti f orh 4instairl tf separately and Apecifi asfly la t d it t e hid, adwsOiesestt sad sole. may be sold by sel4 Oeusr' tithe ii ''the s aim*bid sale end deed as Linde. or i n 5iperhie Kids. flies ad deed. tar said oil. gas and other minerals. oily. The satin ras duly sseanded by Cemi issssdoarclt Sendai eed the ratritiiihn adopted by the toliawiag rete. 4B44t 0. bid Noble 8, Soden Ka r. Nerren Tn! Met COwiff tostiencernts, 1tEtb COOMTt, COLORADO Dated: Kaniber 10, 1949. 4. Plaintiff en Ssptrtwber 13. 1943. submitted to said defendant Board his bid for the purchase of property caned by said county. which is in words and figures as follows*, "To Tiyt 40s. 4g0rd of County Casaeisstatiro Veld County Court Rouse, ileieelasr•:aolocads. 452.00 I. beer* bin.$ se psrsbare wise far the folledng Onorthet prepurty, Amt deposit, knotth, s shook or cosh in the assuot oi tee per oat of ay initial bid; *111passii,. S. 1. R. 59 t. tArasee thirof'ron the silo gas and other Samar therein. located in NW County. Colorado this bid being ambient to aooeptanos by the Speed of County. Cosaississers of Nald Osisty. within sixty days. Manes Prank licad,k Address. Port tercel, Colo. Dateds Sept. 13. 1943 leis Sir Mute The Sard of Canty Cosaslasiarlrs *'ns4r*os they Stt` to fix the alas All si3es aw leshs 14 �. ., 34114,.."*.s,kid 14 the alts you aaarttq;xsv st ds,$ 404,4,4,e , a • ' 144tor tairewat' nottoi .fit .. ,1 a IS'1postai V.. r:a „. p._ a sec. (Notation ix longhand, 81 Cheek I Pure dt to said'bid fro* plaintiff smiths hits fret others csvurirg of ettsthe and pursunat to statute said board decided to and di. offer for sale At public auotion 167 iota or parcels of land and aimed notice of sale to be given ice risag to statute, thigh notice was in words end figures as fellows • PROPhRTUA nj SALE A1` ?M ,. !&R b+CLOOG A. IL 1tArienceing described properties will be offered for sale to the hi et a:ssh bidder an Monday, *ova leer 2i, 194U, at ten o'clock, A4., in the' County Cesesiedcrer's Office, Court Douse, Greeley, Colo.. reds, 11tYf the fallowing Sxoeptions and reeeraationss Incept reservations in favor of the onion' t'acific 'Railroad Company and exosptlreservatiens in the United States`patant and reserving .x. ittiarreeetP4riittatinta irrigation ditches, if any, and existing riff.i of foie pxhtld%ghnite and mete end to any and all exist- ing sesoanats or rights of way, hostas? evidenced or acquired, and sub. sect to existing leases; and reserving thersties, to grantor, all oil, out therein or thereunder. m. Certiain peresls of said lands are included within either the Crow Vellq Deleting tetriot or the Paints bracing District end ownership of sudrii4ett till give the purchasers "Commensurate rights" in such aeeocistiofs, according to the rules and rega1atione of such respective auradtatl. Sets ISO. rays ' Description (with 46. oSaar to tlste) 35 7 O xis Assessed, 32) acres grating, .00 brow. seta did). Lecatsd 5 at Sough ana 1}mi East of Bus 4nli es • Wtifl hie, $2040. 41L t AMA down. Toe UnArd renorvss the ;'tght to.n js9t way k ale, bidia ..5. , pc! 444- Att 6. Pursuant to said advertisement, 167 lots or parted c a; nee sta'4eb,3 acre at public arsttS iis 't►e t)ie ric C. i meet r f' .t ! Chan gape offered for sal a:. - e .E, 7/ �yi�j 0t' 14.4ttuc .., a at OrNler, Ce�lem�ado, eel Xe¢e�TeT LLy �.7u,l. At the �i� y, public statement warn made by the rhea Cdni,ty .k ttoraey in words and figures as follo7ye .:. .iv i '74y4,1 slRtr Cb$S' of the .Seead 4 Cannty Ccsiesienerr will sat an auotircy. esrr..aead auosaee bids as an can ep, Is Ion lie tracts here and it w► atawtt pt timrrugh *day tie rile 431 aaatiusa se ds. It Oars is as. bit an at Wan ea n VS thrmae the list, it will be oftmagalegain et the and of the gals. loe will find en the US'fleas Si* ass the asesseed nluattisns eat represent the mites, bit WO whll be caasidersd. There has bra as aataai ,gyp:. bid daposltel end if there is no higher bid than the initial bid offered on it that bidder will reedwe the ground. If theta is a hi:,her bid, than the auction is open and the land Pee to the highest at best bidder. On some you sill find improvements seati*Sd whi0h indicate faunae which belong on the ground. lbws pieces haws ern in ed to termite who have put up fences and in these oases the fences sill be resoled by the tenants who put then up. On sous you will find desoripticar, and on those the enty some time in the past has had a decree of Ida 'Court quieting title in the coanty on these tracts. then you make your bid and the bidding is finished on any piece of land, if you will give year name to Mrs. Day she will give you a east which contains the description, lou will take this out to x. tiursiel in the hall atm is aetng as treasurer and who will take your money and give you a receipt. Oa then the title is based On tax race in The first instotner mad '(stir x1L r a., e , treaserer'e deed. On the basis of that; is Awl', cases rsininrosments kr fete et tart * tiro in U:eataty YiP i/_saga. ."-!i{�1.. k0.ocesty ell4.4.es ilaip1tr'i t ',Matt teed eata;tit !,ir:.. b y+ .a. a►33 aRaesS rAgbte gas laing reersai by Ids edaoty. el4r t irtk the 1►t11 .=1a geedlbob es piste.nstkdag. in alet Suns..to ors er, u;are is a drone it tau Gear* quieting title." 7. P3aeiaatitf its preset at add auctien and bid the sum et $800.00 for the Feast Half (1}) of said section without the od.l, gas and other aineals, which were excepted and yenned to Weld Gaudy. Plaintiff paid said sus or $800.00 therefor, received back the check -shish he tad deposited sith hie original bid ad directed that the dad to be Send to hie according to de bid, be recorded, and paid the fee for reseeding sem. 8. Upon caseload= of said sale, said Board of CaanW Comedssionere adopted a resolution in word* and figures as follows *RISOLVITOK A2p0u no opwrizoweR 1p,QM= PlOPR$!!t o.aottaelaaer,ltereo ettesrai the few losing saeeistien asi at its Mtp• a1 *RSRIAB, Raid Gaudy, Colorado has aeelaired, by Treasurer's deed dated llovreober 15, 191+0 and r soordat,ln k*•all at t. 57 in the records of the County Clerk I Reserder a1R !OM.: !Yadnty, Gala. rade, and le Us wooer at $s SeaWos 35, !broad* 7Borth, Reap fool best, +nd, 11091148, said property, nospting therein* the oil, gas and ether adnseala thsldas bee bees play at*rtdmst for sale et a prrriie saes. ilia=MU gill Msaraitee' fiat WSJ at the be of 30 Ottlesto l.lt., lac ibo etEis• et td* Beard id iMenoiy Geaodtdesere, ands t1BISiYb at :acid rats, Para:iraeratik, 11. liter *dessi a Morgan, Colorsda bid $800010 a e=,S purehe s psteo ter add property and, bolas ate.*etwtk .Ward beat bidder, odd property se ss3d to ad Wea!'tasglle. x'• . Tl > t ki7Befallediett 1. IT 1113a$111, oat it is„barer/ aaedsred that: iaeve),4 Rs 3osaean,, Oast,..'f'rea:atr yet trill County, Calerado, is .7 r i 11,14-A7 reeiattitasoll r::'a , { l_ ai1.a. re ‘rasaiat atiis.r' at >y A . .: 1;. . GMaSc, to oat s ottnasseetu Mg qett &alin deed, S,GR r .ar,4 is sod irssids+duurlp aspidaldwid a tsklwss tome d.fs . * gos ien 35, bah* 7 Meth. &mats 9 stet* • ,: anomptirminsastions is to of bin anal Pattie itatllsd env., .and asp% ressrvatlane in the United Stators Patat and reserving modeling resorvd.s din ad Snipe** dltthtt1#4 s. sxdsting rights or fly for pate anal' a JfrOtes ee4ree WE. L* .finking saswwtis or Atlas of wogs apowoorartimposi,or sore's&, ad eeriest is eedsttsp bass at znstdsp .4hsrastzas tut pastor. an dl, gas ad other edntrata thesis or thsrsrsdor. IT is summit eialana, that i. ask +Mews tees ib eais$d ilsxttd.$. Sass is nttsrissi to gtii tln sal. sr.oaie,A Gavaiy.a4 ssl4.0.6.., v janss, des snsabod asoetiap a this crud's all Ono tats of. fat to ttssder to nii flak tastaili all right. tidal at 4u tionent ash Wad &izMy has is ad to ties an dsaortb t propel,' oft only and subject to the saexsptitss and reeireteer heltdethste daunt or reteered to. Ms notice nos sesesdsd $' Ctss¢ssar las . . .. .,. Mr rod tbt araawluties adopted by ,tat» toll 1fl votot obs toddle y all S. ►' 1W 31tt I . Ihi 4,.L:.tiI 4,;. , ' Betels Iowan:2 SA& ,:, s `v s. Gt1i+. SW'l: " -6234 9. Paton to odd ssssastisso MU Caat aoapsyM 144 lwetto $dnt4tt, sasp11n end reserving to OM asestvs Coulee to oils Ba or other alaerala thorax, b tin tinst shish is atiS ri to aends • port or, l4s.4 is a nt ►can end SO is Os Isis of wtstsvor. tins plaintii�rt/ r Srtd Assd is rs. screed is book bleb et pets t$7 of:tho Isla County rants. to. ca Dsaakst 7, 19430 We Casty aeaareysd to.Drpt,k. aaid $fl Hat jt}) I` of said spode. dint wd s° t thsrerra t0. $tSt0t„ the oil, Ps sp sinter ad.ascAr..e thereto. told dad wsx aswnt+d hx olaimbttt and it as runs st ' and no his Oalr, war rwsxded co laasm7 3. 13td$4a Qn. Meid 00'+4 wards. .6.n t *LW: Chriatr:3 emli el. .,:. ... .7 N;• , N. v .b^r-:j k, `wit]s b sae 444 recorded en tenet 2y, l.9e, w d na A jrada Peale av Corporation 4y prcpsr assignment reoordec o r. t r-* c..r Said lease and the assignment thereof is thu bade of no 1, +ter•.lto r" deft dint Sands Petrolsas Corporation and of the overriding realty of The Curlew '!lust -I 12. Nearaly twelve years (smartly 11 years, 11 mantle and 11 ders) after the date of said deed from Weld County to him, plaintiff Pernik oommanned this action. 13. No assessments were made nor taxes levied of the oil, gas or other miner. ale in or under much lands and the amasser placed no valuation em said ail, gas or other minerals as slash. 14. Plaintiff needed move paetune mad desiring to acquire said land far such purpose, he inquired of the County Treasurer as to the ownership thereof, with the result that he placed ma initial bid en said land with said commissioners, attended said public motion sale and there bought for the ens of $0CD.CC the said East Half (i4) of said Section Thirty..five (35), without the oil, gsa or other minerals. gs received his recorded deed therefor on or about Jenny 5, 1944, accepted it and ever since continuously hue retained pusaniiam under sold deed, without objection or protest rotest until August 25, 1955. Shen drilling activity boozer imminent, he caused a notice addressed fTo Mirada Petroleum Corporatim, County of field, and to all persons claiming by, through or under them, maid to the World' to be posted on said premises, asserting ownership in fee, imlading all ell, gas or minerals and miner. a1 rights, declariag that he had not given q lease for the develapfmnt of oil, gas or minerals and naming that 'my attempt to move in or upon said lard for the purpose of exploring, drilling or developing ail or gam seed be a trespass. Said notice was recorded in the scanty rends en loguat 30, 1955. 15. Plaintiff, having taken possession of the surface estate in the property conveyed to him as aforesaid, has paid all taxes assessed en such surface estate, be- ginning with the taxes for the year 194b. 16. Oil has been produced from said land irisader said lease to said Daboeck now osnedajby defeedant Amerada Petroleum C-ovoro en, wax' these to now being held for the credit o7' tu-= miner o f said ct] , t.►c cad. minim .c, xs CC' Aril 2?, 1957, the net sum of 4,2 5,817.61,81-'.61, e1 t!: all s o,unq u/l I'. ►se ern,.at. n ^ *.'+alt. us i„::° the term of said • • •`s. Ph* iho `!'. ti!`ira.11 severally AT the detatdant, this l%`o:c.:t .7:p aymoty oners 01' the Ccento of Ale, Colorado, and that the alle ittopo w.. '.. r i;:~ r wx! Counterclala as to the First, Second and Third defense Arid rho .' ro_ler .. lots and Second Counterclaim therein are true and have been proved by coApotent o•°', dente here- in. Ths other defenses and counterclaim of said defendant Board are in the alterna.. give and as to them no finding is required or slob. 18. The Court finds that Weld Counter, Colorado, is the owner of all oil, gas and other minerals in and under said East Half (El) of •aid Section Thirty.five (35), together with all rights incident to or arising from such ownership, subject only to the rights of Amerada Petroleum Corporation under that certain oil and gas lease re- corded in Book 1252 at page 372 of the 1eld County records and the rights of The Dux- ! land Trust Company under assignment from said Amerada Petroleum Corporation. 19. The Court further finds that all claims of plaintiff to any oi3., gas or other minerals in or under said land are void and without right or foundation and that the purported lease from plaintiff to Amerada Petroleum Corporation recorded in Book 1428 at page 5 is void and it should be cancelled. 20. The Court ands for the plaintiff wh.s claim of ownership of the surface only and that plaintiff Is the owner of the surface estate in the last Half (il) of said Section Thirty-five (35) subject to the rights of Weld County as owner of the oil, gas and other minerals in or under same and subject to the rights of Amerada Petroleum Corporation under its said lease from said held County. 21. The Court further finds that said lease from Weld County t* Amstrads Petrov. leum Corporation, recorded in Book 3.252 at page 352 of the Weld County records, is a valid and subsisting lease. 22. The Curt further finds that an equal one..eighth (1/8) part of all moneys derived fraa the sale of oil and gas produced from said land under said lease belongs to and should be paid to weld County by Amerada Petroleum Corporation or by the pnr_ chaser of said oil ihoasoever. And the Court states its Gonelusions o aS :'ollaWi i ::t1C7t'iSIt)f Orr LAW 1. The proceedings her•i:1 ood the seirt:!,aaia, form Aw:d r-roof o-J ar4ca as to all rarties hir.to is ruguia.', AA 110 fort,. src ,°.eo4':1i.-- ti 'I ' . t tai tat% hj hhs seal coda, jnfied "'et ' _, t t Wit Joni t 6 a t��+,.�,": VIM t.4 .1nW nit .' �y',•t y i 3. 11601160Oat, y 1 s *, tti 17%3, ,rt1 for I :-5e9f iAlak thereto, raga' the einier in fee ideal* Selma of the Rat attt? (4 t at 'gar'a h ffirtyatite (3S), Taisibip 7 Worth, Rog. Oita of the 6th principal esid.tfaii in Indif taontyrs`totem&. 'Ma Coontoy, Colorado, is a bs* oaaparate ad politic and bad fall parer under epeaitic statutory grant fro the Site 0ttelorad*, to ilblil ad wary ''' teat as Fees shafts' ied *tail seantf-, ant telmeitoh esdir r`rtaaniottat`:-' thOlamis it deemed odatalliatatiOtithatate of the inheltitents of add cam* and by and thraagh its board of Silty ooaeaisdestete, te'awake all, contracts tad 'd0 all other things in relation to thalann'ottr sad neeeseerp to'the s naroise Oita ee# teinits'or tad ilet;rtatirj`pee Mo. 5. Its the hoard of tarra teradeeisiaire a tehas ltal pair sad Mthiatbr to aske snoh erdsty eastsrasng the piaPer birlaag ' to sa l scanty Shit chaste esttaedlent !nd to iiises a"the buoinln'ant imitate of the oaintp tat sasij waste no other parditiont trines by 6. The defendant, the Boats[ totatf4' C5 tl:onere otiek Canty of Weld, Colorado, in this rase, had full rigfitl''ina %zthority to sail sad convey the surface State in acid` to the tut Hall"' twt flew to tFt3rty iattii tlwl), T Sinop 7, Rang. * sweet of the 6th principal meridian in Held Canty Colorado, and to saasetpt and retain all oil, gal Or adner+da`therein, MVO dl& `sn tide sail, elate pra'stibited or Thais& by waresre ietaite to` ttleadr ear ' '1. Then was and is as OUSE'sit the rat tortd'ttatorado *IA liadted or j* Whited said 'realty freer tionteying hitturfeee``ietetea aid retaining add eicepting said adsiere Stain d SS lands above described as last anon stated. 8. Sin the tataststeroe deed i*ad ''eiareol g'a std`ird to Wittrotattratit the dearee'laieting title`taes"eto isopn'lrlsd b+eaditti rally the-'tarediow rs ' of the Wits lien there& had hoe othipleted, all riffs tette apt* gambit, dada_ event tea[ paysr, !lie"lensed bott, rilit'e"eut4t# `and ls�dtlaate tt"ale held vested ids.V 3a 'hoar49: Isitanreeol i 4*IttA,'k, PS' , hid no !'ether appli. neatsyr�ik' t". ^vr�s��arc Ii 1.1y rich n list ,. .'>rr ±.^ «ir. e" r*ini net rupaa .' 7 �'S s' a S .Mt•"":1'� �1F1 1 ¢R+Y 0, * y /`6`*bdt }y" t P ' S `per -44;410 'YE t!.41*-.n fie � _'$ Iys L y6.:a1 rk 12.1.ey: , Grit .4 ipat 1 4091,4"t4.7 . 1. J<PE � . �#'.t ..r :..tap,,,g. Q.Y `r 5 cl,Sadon .}t-.:i:....t 'a,: - �• 4a;.al,,p3`A4aitc+jiWl$estioa .3?-lQ.b3, :my right of Mid defendant Board te do or prohibits* it 4041244,y* ' 4,N- ett2do, or which aaskrtets its right vitals the axaxpiss of its ,sassed discntattt to. soil to plaintiff arsid mamas estate and. to menu for the be ns,4ita at the inhabitants the miso aals Abstain. 30. 'As language to said dad ! a_We,t pant ha plutatft to,roayoat to the ell, gem sei.othar sdseraals thiamin*NS lost bs apneteaad as an sassptiat at,.aald minerals .rethpr than as a noorwslAs. Unmet. 11. Thu exception in and by said dyed from Weld County to plaintiff of said oil, gas sand other oiacala stteatoi a opapleto apverenca at the Wheat *Mats tram the s etas estate insa$d lands as sssreyed. , 14.., Swan if said sod said bard of Cashy Casoiesisna had mat had fail alrtbe ri y* to make said said of acid arias estate sad to. retain.said Coral estate ea wan dos, in this oast' avast eless said sale.of said lands without the alnonls sad said *sorption of said oil, gas and mineral estate was ratified, confirmed and valuated-by the 1stitatisng statute at 1946 Ostia 3s-1i_hr CM oil. 13. Awn if said county and said Bawd et Os* 00.114.161,01111N1 a had at had au. thari.ty to ado the sole of add lands with the .tea sad awas$ti at wt said oil„-,gas and minerals as it did in this ease, and even i f said validating set did not confirm and ratify each sxssption, nevertheless plaintiff, by mom of his per. chaos mad.of his aaospterxae and tvitomtiaa of hits. said doled,+list* 4 all tomtits there. modal... is eatopped try' maid dead to apart soy tale La or to a$4 ail, ma or miner.. cis or to claim army rights thereto-wader said dsadr in contradiction or ealargsmsnt of tie t+seog of said Seg.. AeCoLv€4 31t. ,sir pldntiff having bargained far mad bought wad tsariayf/gPMiMq +Tali the outlaws ssatste in said land witbeut say st time oil, pa or enamelst and having se. septet* and retained said dead without pretest asr abjsoti a, Ofd boring reiped Us $esfit 4 toes batssi* `IMO he SS* ie..set, y anttt).4 to ratans sad claim as a grated* th : !, ea' tea. <,, sic . t . *as, Lalw , is .,'P r Lt t t all a+il, gas and other .tut!r1:1 7 :4 ; .tSla' Tht w ef5 t',c'.R Se., ' !". Ate" ..trt.y.f%t$ 'x 1$), ,�1 tonniktp.San ...no a trite 59 ;+wet +l' the hi,h princi,,7a:i a.uii . au, to;- warn -si;.., rtdont to such a nsrsi 1p. 16. that os;tal4 purported odl and t a+r lease from plain`;.'f':, !i n k ':axnik, to • amerada Petroleum Corporatigr, dated kugncz 29. 1955, and re .nrt.ru In Soak 1148 at page 5 of the records of Weld flaunty is void and should be e+noslled and aon*tlai. 17. Wald County, as the our of all said oil, gas and other minerals, is aa. titled to all rentals, royalties and prooeeds of and from the sate, arising from or an amount of said lease to *aid dsferdeit Amanda Petroleum' Corporatist, or othee. wire, and to any and all moseys and or edits for all oil, gas or minerals delivered from said lands to any person or to any pipeline or to any ether conveyor thereof or therefor. 18. Plaintiff is entitled to all t the 'arras* estate in and to the East Ralf (E}) of Soet1an Thirty-fin (35). Toarrshtp 7/late 59 Watt of the 6th prima. pal meridian, dthout the oil, gas or other minerals therein, 'object to the owner. ship of with oil, gra end other dgarals, and of all rights incident to such ossr. ship by Weld County, Colorado, aid his title thereto, so limited should ba quieted accordingly. 19. She Fourth Aswan and the Further Mnasar aid Pint Counterclaim of the de. fondant Board, however meritorious, being for relief in the alternative only, it is not noon cry bare to state and the Court does not *tato any Cerslusions of Is thereat. hsdpent and Decree in accordance with the foregoing Findings of Faet sad Cat. elusions of Law herein should be and le hereby Ordered to be entered as follower aUi oiny AID DICJtiS IWOMBlORI, 1T IS ORDERWA, WOWED WA D19 ®1 1. Weld County, Colorado, ls, and at the time of oomanoumwnt of this action was, the owner in fee simple absolnts of all oil, gas and other mirnprels in and inne der the East Half (tit) of %atlas thirty.fin (35), Tbnnsbip ,,Rsags 59, West of the 6th principal written in Weld County, Colorado, and of the right to prospect for and ram the saw. ov ;est catty '•, that eortal" lease free said county to Assrsdr, nett a1 Crrperat+e: te'l• r;!f ' * ,ere S. tit I. ' ,* ?scor.v, ttr ,fat; r r : 4r tti4, ?airier to fr: rrca le absolute of .11- . • Y w •.M, AM-9 47-.a" anti to A:A i u tAs Xa.f (4) of as .A11 . fhi r ,, I ly1e y e e pt s'.i'". suet bhl7,4!16w94-14 ,' b the' rights f tai Q:•.I ':..4 sty tbo* UMW* 4. Weld &ianty, Colorado, is entitti to all rentals, roya,.ti1s n ro- eases tfaholfkua any oil, gas or other minerals in or produced from said lands. k, Amerada Petroleum Corporation; its 5Ucees*ors and assigns, is the owner of tit eettain' oil'and gas lease fleet said county to one G. N. Babcock, and by him assigned to it, recorded Lu Book 1252 on page 372 of the records of said county, which lease is now a valid and subsisting lease. 5. The Durlend Trust Company, its sw*eseosa or aft , is the owner of that certain Assignment .of Overriding i44l'ly► face A■i i st-144Sroletne Corporation to it, abed Juair 16, 1.;;5 , and recorded in rook 1x+25, on page 157, of the records (Witold CeaSt #, 04/Orado. v . aM ssy'tMUi ail.ice gas lease from plaintiff Pernik to Amerada Petroleum Corporation, dated August 29, 1955, and recorded in Book 1 '28, at page 5, of the said records of said Weld County, is, and at all times has been, wholly void and it is hereby cancelled and annulled. 7. That the title to all oil, gas and other minerals in and under said East Ralf ($) of Section Thirty-five (35), Township Seven (' ) Borth, Range Fifty-nine (59) West of the Sixth Principal Meridian, in W:ld County, Colorado, and the right to prospect for and remove the same, subject only to existing rights of the defendant Amerada Petroleum Corporation and its assigns, is here- by quieted in Weld County, Colorado, its successors and assigns, and plaintiff and all other persons whomsoever are hereby forever barred and enjoined from asserting any claim whatsoever in or to said oil, gas and minerals and said right to prospect for and remove the same, adverse to the title and rights of said County, and the title of plaintiff, Frank Fernik, in and to the rest, residue and remainder of the estate in said land, subject to and <3,xcept said estate, right and title of said Weld County as aforesaid, is hereby quieted in him, his heirs and assigns, and all pers'- _ , whomsot-yea are `uereby forever 4 ' i 4n i a. -ujo'ned arum .ii.e.ergint t:+y el-'-t -.+aatsoever ad; •ss -: h`m i.: r,nd to said aw-ws estate or any part thereof. 8. The several defendants herein shall recover their costs uarein and have judgment therefor. Clerk is directed to enter judgment accordingly. Done in open Court this 12th day of November, A. D. 1)57, BY THE COURT: a , .e , :, . Judge ATI'SST: Nut! 40PC ir-t, Wad ilentn, ettillormio �,. �'nuty • -15- ROBERT G. SMITH ATTORNEY AND COUNSELOR AT LAW CORONADO BUILDING GREELEY, COLORADO November 21, 1957 Weld County, Colorado in account with Robert G. Smith Services on account, and expense, to and including entry of Decree Quieting Title in Weld County, Colorado, from October 4, 1955, to November 12, 1957. $3900.00 (Expenses: (Balance) Docket fees $10.00 Clerk, Supreme Court, Wyoming. 4.00 Extra stenographic help: Mrs. Williamson 25.00 Mrs. Schluter 16.00 Phone tolls (charged) 12.78 Supplies 10.00 $77.28) Balance of fees to be paid, including services in Supreme Court, shall be: If affirmed, $3500.00' If not affirmed, $2500.00-- If not appealed, $1500.00 Said balance of fees in either event shall be paid on final determination of case. You will also pay or reimburse me for all expenses paid, for docket fees, printing briefs and other expenses connected with or incident to said case in the Supreme Court. APPROVED:' County issioner FILE 29 NO. _i SERVICES ON ACCOUNT FARNIK LAWSUIT I ". --- .)., 1 . -..:,.--k L.Nti ) r } I c,--:;.;.% f... '‘--!-.) : - ,(„i.---No. `. j� I . .41 :._b FARNIK V. BOARD OF COUNTY COMICS OF COUNTY OF WELD C'nln. Q6'] � '�; r�II!' I . ?fa. � ',"1. 4:.:,1, ('r as III. I'Pet Ira �71 II I1 1 rr, ar YkL • nganitcs." Objection was made to Ihts nunous run ohs made by Ihr Issi sl:ud ins- d 1'. . answer and counsel for defendant then Diet attorney hiring the final argument.' • I I � � 'SC Ia+ 'bt {y Ali 1 need the court to declare a mistrial. The It need only be a said that the final arguments 1 p ct• 7,1 ! Ily motion for a mistrial was denied and the of counsel arc not:a part of the. record :w p iI' , i, ) • '�1 f, ;e:ct. 4 Trial court admonished the jury to disregard submitted here. Nowhere ut the motion 1 III i(f P . 4Tr;�t,,' L t' j ';� I the statement of detective Russell as to the for a new trial, the abstract of record or I�• ff.•�, 41 f, contents of the cigarettes, and he also call- the briefs of counsel for defendant does Iii I �c t7 tinned the tvitne regarding his answers the foal argument appear are direct ,at-. i" • to further interrogation.ation. tension to h rllnbach v. People, 125 Colo. a r I t d �Iia; �, • 'w lll, 242 P.24 222, 227, for complete slab- I I , yf ) n a„ t i'; Sergeant icdthat plan man, qualified e ii an expert,y mend of the law as it pertains to this as_ • '} •+ i 9"7}' �J a'. Itstihcd he had mark a chemical :nutty- _ ' pis of the cigarettes and that they contained signment. We there said: "A careful read- 451 � ,+VJ �;. ' in • of the record in the instant case dis- i ' 1 :WI Sol f Y . Cannabis Saliva, L. commonly known as kr ' t 'f1, lilt! closes that the arguments of counsel were ; ' 4, t r t, ,{'l t, marijuana. �r is 4 t t . Federal Federal Agent Marsh testified that in a not preserved in the record nor was any + ' ,,. 't ;?r attempt made by defendant's counsel to • tit iIti - conversation arrested ith defendant the latter told + him he was arms L•1 on lane tlth, Threw have the portion to which they now object made a part thereof Under these cuuun- lr ) r the cigarettes on the growl(' and the police r lI t 'a'r 9i t' I'„ stances we cannot consider this a sr,gnmrnt. .I�, t fM,� r', 'y1 mess. picked them up. Ue(entin- as a wet Ryan v. People, 60 Colo. 425, 153 P. 756, tV. fat ', • nat,denied the possession of the marijuana I,l2.A.191%1-. Gt6 Wolf v. People, 117 It\. Il�r r +1 �I') or that he hail slated to the others that he l• +1j hS. Coln. 321, 187 I'.2d 928." 66 ' � 'I` rf ;y knight the cigarettes from "Slick". +'< Ys tt •r,. No prejudicial error appearing in the V p ��iJ fhe trial court instructed the jury that �F j� r !�y record before us, the judgment is afirmed. ' ii" •' •a-' T stridence stricken from the record by or- t k41;4' 1 i lif der of the court should not be considered 1 • DAY, Justin:, not participating. s't '' �t } Y 1p:, I.f,,_II h)' )'011.' ! :II- `� � qi. I 47c.s I P 111I fa. P r.l �k) The statements made 1 j non-expert t _,y+, ` j 74,, a1111eti5e5 concerning the contents of the O E,iONUM IMUM • 6;1::•If ' : L ('r,n� tigvettcs were striae n b-• the trial court, r ir y' t Ill' L and we find no error r in the trial court's tS `+ c_M puling. No error was made in denying the I ��+iµteMj • y } i4 1'3., mthnn for a mistrial. Sac Erick ink v. l'en- I r,'' ' �ti �+ `f�� plc, 136 Coln. 535, 322 1'.24 (174, 682, whereI ' v y r:, a Frank FARNII(. Plaintiff In Error, rl!.;•1(,‘ �� tit r•r.S it iS stated: v. L Y "Moreover, the trial court promptly BOARD OF COUNTY COMMISSIONERS 1.. a' ti r r:Li and correctly directed the jurors to OF The COUNTY OF WELD, Colorado, V.Y tt' let cat t disregard these statements, and it 'is Amerada Petroleum Corporation, and The • ".1' t#J •�. .� Durland Trust Company, Defendants In is Lr .1t bet presumed that the jury followed the Error. L r � 1 1�r ice, h�; toads instruction.' Bauman v. Pen- No. ID5h3. {}4, Y' d s'n" . ple, 130 Colo. 248, 274 l'.2(1 591. �t`'t r1 f'I 7� it 11'hclhcr a nustnal should be dcclar cd Supr:uae f`nur[ of Colmudo. It 4p tsi tests in the sound discretion of the try l En Barer ' . 7r +e f t r 'l a } 'rl�J court. '(I)n the l'sl nor of dose. of .lour 2', I't.n. ,I t1 ¢, ,+"t discretion its ruling thereon will not `' ' nl , sAs Modified on Urinal i.rl of Itohr•u lug '�• of 1J}11 be disturbed on review.' Le Roma a. ;July 12 lira 1 e ��1t/ t S t People, 117 Coln. 561, 192 I'2d 436, • ; .';I. i' �irr.; Ittt sl r ti 437. We fund nn error in the denial 1 ✓ j1n art lip l ci the motion for mistrial." Quiet • title acti ,n by purchaser of tas 4t� i �Ll'f,f_ (2] It is also urged that defendant was forfeited land against county commission- iP; s v(it �' Mtjudreed by "certain prejudicial and Cr- ors and those claming under oil and gas : tit k 1P�r dr 1 , , bc i/n f',1t u ly• �,.r ter " t..f i .a S":•• 4ti` ,frii f,, . ,f 'IS" t,l + tP 4 iU P rnrt u I , r ,III A I}, t'41.4 r 1, I I I'c•U 1 1 r,.� 1K Latta' kte Si' d r. J I j I ft '7itt rj �i jr{• L'.i",: f a t°llN. p oil 11.,.ii:iryr a rV. , ! tf it 'qq 1 r r" Rt tF,l,(f� t •O•rr't o, ev, ,A I J.• ! a, 1 1 v.,rir I Y •,! ,. a, ih :.uh .,L V eon 41 Y. ��''1f , tai," ,,,ft G'r r,. i 'vk.-U,., ' 'I, erte, )� Yin id, " ,, 11 ,m I!,,,,v,,,,,,,,. .,..,,s,... ,,; I• b , 6Nr 1 V r llr�y"�� +1 `,c',c44 iii f �,I1III it r l� 1 it I I ' 1 ' :S I I PACIFIC REPORTER, 2d SERIES e i f.,I j i'. ; I ,' .168 Colo. 1 ( +,r I 11.'11. I It executed by county which ll:nl re- A. Constitutional Law C-"I!LY �I '1 ' Legislature re may cure formal defects 11t II �! ,i ��,, I.' served minerals in sale of such land The. . gyri 'I,,t fi��,j'' I tistricl Court, Weld County, Dale E. in deeds and other written instruments and , Iv',ll,,; err y" ! 0IiI ll l Shannon, J., entered judgment quieting give then the sun1. validity tin y should have l It(f " r !' (.,I title in purchaser to surface only and quiet- had had they lcen properly executed, even I,' + , I: I hit, Y Lh'm • Ph such le ivl coon mat " ,heath to ad f Icli'ylr n -` i ell title to mineral interest in count sub g g-' y I ti. 'r1 1 N 1 ' (, jeer to the lease, and purchaser brnuglil oil a right of action vvllieli world olhernise 14.Y.;,.s j J I 1 s , error. The Supreme Court, Hall, J., held exist, since the legislate n is considered as s ),1 �� 111�}I that county's reservation of minerals, even carrying into effect parties' intent 1I I ,.i` II ,k ,' 41,' ',' if without authority and invalid yvhen marl,, 5. Constitutional Law G I93 I , '2.1,11,.1 't t ' .. .i 11 was validated by curative or validating act (:nnstHit-wind provision prohibiting Iy �, which placed county and purchaser in parr General Assembly's enactment of a law tiara they intended under deed, but that the which is • wretrospective in its operation does y ri0"11 1 1,f p i'l l 4,i1, `)+ - mineral interest was being held for specula- not apply to acts y and'at nag contracts Ihere- t f, : }lion, not for county's use, and, therefore, to fore made on behalf of the state. Coast. "ittr 1 )1.{ teeny , f•, I • should be sold, suhject to terms of the lease. art. 2, § 11. ) 1 ',* I1 Judgment affirmed except as to matters 6. Counties X47 11,f y noted with disapproval. County co nnuscnners are officers who ,� `,yl i + }4 have only delegated powers and who pos- .r+ t r , t , 1'I secs only prove con fused on I: I. Taxation C=770 Iltlycl them by constitution or statute phis un- jA1 � �"I,r e• ( \A'here published naliec of sale of tax plied powers which arc reasonably necec- ILIA I'i, forfeited laud to which county hail ac- 7 1.°, ;II +� gored title, bid made by purchaser, enmity siry to proper execution of the express a4 t,f ! I1;, attorney's announcement preceding auction I,.,r" tp.n I ! y I c a.• + r , c*, and decd delivered to pnnch,ascr re- 7. Counties C=21 b4 YLr{I �I,Ip r n { served and accepted the minerals, county's Comities have only such powers as arc l ,pat 1 hI,. reservation of minerals, even if without delegated to them. vi rI I sir u e 11 ; authority and invalid when made, was vary- 8. Taxation CC=f,79(0) I +si'ot 9 • dated by curative or validating act which VV here county had, in sale of tax for- hsv7''�I�rfrttt r. ) 'I �l�' placed county and purchaser in position ,riled I ,nd, reserved the minerals, but min- e r o` t{ r ' r they intended snider decd. C:.I2 S. '53 36 era interest was being held for speculation, r. 1„ I ' .I11 1 'i( 1 I . „1 1-1 et seq., 3G-11-4, 137-1-1 et seq. not for county's use, mineral interest vr,' 1.11 AI11 4t ,ia 'A'"1-.i I I','; 2. Constitutional Law C=193 should be sold snider( to trrm5 of nil and , ;4)3 :,I r r Z A "curative or validating statute" is gas lease executed by county as to such t 11 I e , one whose purpose is to cure past error, minerals C.R.S. '53, 36-I I(21. 56-4-2, I,.k 11 ,e i t, , • S ,r ' { rr ' .! omissions, and neglects, and thus make 137-10-42, 13740 J3(I, 4), 137-10-45. valid that which, before enactment of sl:l- ! I ; 9. Counties C=I03 i_ r'if, lift, was invalid, but a validating statute ,..is „ 1 , County bins no power to acquire really )'l 'ur r ' grants no indulgence for eonreUuni of In- k r}. 1 I r - or perm illy as a speruldlinn or an invest- 1 ll i 1111 1 titre errors and neglects. F 1 ' moil or to retain property law hilly ac- Site 1 t'1' e C,a• p Iii„ II inn AA orris an l t III sirs. tsr� Lp - r 1 '. qurrnl for use of county ychun such use no y;,1• f j for nth rr judicial roost ru,•li u :old dig- longer ti I :II , all exists. 111 {,7;1 ter ' �, ; .. nil nor: cut "Curative or AIn11daunl„ Slot- )I{ M '9'1"� 1) I. I0. Counties CvaIU3 I: IL'$u Il 1 xP L. I , 3. Constitutional Law G I93 Taxation 0.'217 . 4 Cult"� I i.,: 11 I, 1 M'., Le,glsl,inn nary validate rr rl',peeliyc- ( , In,fy was acquire and retain proper- ' fib ;.('rd r, - lv any proceeding which it night have au ty winch it 'easumlbly needs or, in fore- 1.1 1,S..1.1113';',1:: l ,, 3i', lionized in advance, or may cure li sub seeable future, may reasonably need, and isequrnt statute, that which it might have such needed property is exempt from taxi- f'1 1I�I I, dispensed with altogether. thin, but property not needed for cuunly's I f IIi f l 11 . ' r t ' ' .' rr P f 14 'yy'I fI'y'I ..'1 ., 464,4010 1{ ry�i 1• y.f3.1-h>'I- h.11.-. 1:.;;;,),:!':i„ lr,, ; . r ,,611;40'..6ry1l :, I ,,y,y ' " ' it p it ur; �;'. FARNIK v..BOARD OF COUNTY COPIRS OF COUNTY OF WELD Colo. 469 ' 'r 11111 I. �• i d�y t, e"r l e its a.l l t'._1 167 Aj 11 q, lice shmdd be sold by county as soon as twenty I . •_hart of one year after the tI(I II tII : } lack of need is apparent. decree quieting the title had been entered, a 1• y S a tV. 11. Taxation C�r79(3) the county offered at pnhhe sale the above x1111 .�.' l + Title tvhich county acquired to tax for- tract ;uu166 other tracts, title to all of I II ICI rjl I•rl a. felted huts was subject to all restrictions n'hiela had been acquired thrmagh lnr.mr II 11411, �'"° ' 1 and limitationsn imposed by statute govern- er's deeds issued n -Iec' lint of Il nl ai- �t tYYl 4a J1 in. the acquisition "lent of luxes. Milers of ale expressly t 'r . g n and disposition rn thereof. I a a , rl•. I.R.S.' c3, 36-11-1 et seq., 56-4-2, 137-40- I rota ltd that the e nnty 'umh'l r'_cne :all �t S 'I • a, a rr11{ +1 Rj a ji 12, 13i 10-13(1, 1), 117-10--15. minerals Farad: purchase said 1:4/2, S-e ,I 'i '4�y j 35, and paid therefor the sum < ( $;f10, The rI I. ) I . Vy i 12. Taxation 0679(7) tied issued to him on Il(cent ' r 9, 1913, by rlL 1 ,y' a i Statutes permitting county to reserve \Veld County expressly provided: a ( C a{ . /)r minerals on sale of tax forfeited hand only „* * 1�? q• * Weld County * * entitles county to reserve and sell the min- • a 11f ',' orals separately. C.R.S. 'S.1, 36-1-I et seq., does grant, bargain and sell the follow- IL • it ' 137-1-1 et seq. describedn a hcd l csl rte, trr tt i[. ,p r 1i, tar{, E1/2 Section to Township 7 North, g ', Range 59\Vest of the 6th I'P.M. �f3' e "� - Ilaffl:e & Johnson, Fort Morgan, for except reservations in favor of the • a1 � Union ' I If.qy Xrrrt 1 plaintiff in error. L.nran Pacific Railroad Company and f w! qr1 {p t� . 1 Fred Schneider, Denver, amiens except reservations in the United j'llet 'Yo, .' 4k,�' 1 exec rt curiae. States patent and reserving existing "1'i if „ii {XLv' Robert G. Smith, Greeley, for defendant reservoir sites and existins rights of i. C. yfnN.' 1! 4y in error, Roans of Comity Commissionersway for roads and irrigation ditches ITv y� f of County of Weld. „Nix, to existing leases; ma f, P�'1 1 . iyft.,,I rescremiq there/run, to ponder, the { p, , HALL, Justice. oil, pas or other miner n(v ll+crei n." till' ,y, 11.;,,.. ?IN ' The parties appear here in the same or- '(Emphasis supplied].) 1. ' yy ,j )LF111i drr they appeared m the trial court, anal we l..arnt; was well aware of the terns of ' �A @ i,..ti r6 Afi refer to them as plaintiff and defendants sale and the reservations set forth in the li *le f,r�,et`r,i or 6y name. decd. All dents issued by VV'cad County t rife tX J'aQ�l had this same reservation. aU� 'A'a6a Prior to December 1936, the defendant, $ �N + . �„ I)nrland Trust company, was the owner of On July 26, 1949, AVeld County ❑ tere'I • ��1rp i .. rr d'lii. Sec 35, -l-tvp 7 North, Range $9 into an oil and gas lease with one llabcoel;, I i,i.t,li 1lt � tifllc' i West of the 6th t. n , Weld fount Onto- covering said 1.l Sec. 3;1 y, �z (logo Ihcr with • ' 'a'lJ,ttr ja ado. Taxes levied for the year 1935 other lands) ; said lease is for a primary ,' I. 4jt ;r f�'!v!i tlainst said property being unpaid, the period of len years, contains a pl tticimi l. I. ii� t: for County Treasurer of Weld County, on l)e- fur an annual deferred drilling rental of • !i',!dish. ( 5'rnnhrr 14. 10,34, enticed swirl properly to 50 cents per .acre, curl reserves verven as re-ntal the I.Ill l�� a tAy, Le sold far nonpayment of taxes The tax "weal ass of the oil prodnee'1 �.�:iFi X� e ..ale certificate was issued la \\'(id County, On September l 1, 1') ') I1 �p7p lit i I'.abeoel assigned) t 7et�, N1T' u provided by law, and Ism rra flu nn No- the lease In the dr(coda nl, the Anair:adn tt p k:',1tt: y' I}e.umber IS, 1'11(1 ❑ treasurer's ha I I ' said Petroleum n Formulation. no Inns lo, 10;3, 1•Iel, f 5' yln'� of hod was issued to Weld lonely. ' the va �Am tech yd arcd to Pm land Trusts Co. 11l , 3.8 `!,i. halite of the proceedings leading up to the a '1/e% aterriding royalty of ,all oil, gas, If.i IN{{ C can nee of this deed and the validity. of '5 h�'r`yi, %,,,,;, "i'etc produced rl from the Ic;a se'I land. Plain- ��.�fi tlf� r °; Ih deed itself are not in question Weld tiff was not ;n‘arc of this lease e r of Ur - j( rr q r " l� ii, I 'nnty, on December 10, I'bi2, more than land's royalty interest until 1953, when "` 1 i �� slit hen years after receiving the treasurer's Amerada requested him to ego an affidavit x1( 4 P e '1 decdrfhrough court decree quieted its title to the effect that he claimed no interest in I '.� i1 i4II ,",'7{{{ 'to to said lands. On November 22, 19-13, the minerals in the El/2, r ' 7�i&1 er3'il November ° /z Sec. 35. Plaintiff ,s M�h 6 r ra ltY�, L ',� t i).;.;11,111°44 fir d i. • b1 P ( a +ie� 'fba: F 5 • '1�a I Yry • K d I 'ir el,ld4y' 4r:,:>u{ha A• I Il,fl. rv•. are yr ( A '4: is Y 1,'1. ' ' j 4 ij IIII'I,};'a,) i�l;4. I. . 1, as r i la raw f , t it{"�` ft�V.l,1:C,11 r ,' .170 Colo. all PACIFIC PEP0ILPEIL, ?1 :cl SERIES +NfFil �'g� vial,. r cfusrd to sign sorb afthLIVII and, nn the sell parts or parcels from lands acquirrd till contrary, clammed he owned the minerals. '1 .0 L ,•� F )t, �u (hi August 2'1 e try has deeds, do not w . ( r 115, I aririk entered into gram In Ihr rmwl), I it ',ru , a )f+, a primary period four power to divide the land huizonl:dly, to e )car oil and gas reser%c minerals, nr to gne)• any title �' I � I tease vith Amerada Petroleum Corporation lays than that held by the county. and a i covering s trti Ieti' 'i4 } eie� ; g titIvt Far $5, II Y I w 3 (I1 that Ihr deed o coin,,v-mice to plain- t uF�rtit pr a On November 15. 19 , Plaintiff coin- tiff is valid--Ihr reset yahoo therm, void. it 4 .' ll t 1 i iii nerd thisaction, seeking III quirt Ilri title r in himself Ini - The triaIInt i ,nut concluded. among u .1.;;11.••,' said I'„ . See. 3,, and ao things, Ih rl .aS' ,a molten n( I11e : thee pr %all tine( all claims of VA'cld County, the nor- !rl nil a� 1 'v f )I' i. 1..,•11(11.,T N y i Cr e,)a 1F.,{ • land Terri Cnnrlr:oat', and eta lots of Amer- Board );ern i( said outfit and said r 'I :ulw arising not of the teas,- limo A1'c hl Board of ('Dimly Commissioners hail I11 Pa �Ir ��II� County, declared void and of no force or not had hill authority to male said a hi t 't. rlG rt. sale of chid surface estate and to re- tain said mineral estate as was done ),,a ' r't n.�1 't� ' As of April 29, 1957, royalties from the e u ; rin this rr.e, nrccrlh hss said sale of ii IL i j i oil produced from said gli Sec .3i,amount-' le iii - ' I I t. eel In > >' s ud Luvls veilhosa 16e minerals ;nw�l I rrh�M ti $_fi6..i.f1.{ :end lh use royalties, in- said e.xeeptiorn of said Dal, (,uv dud win. is 1 L i'<a r I chilling royalties subsegnently accruing, are rrd r ware was ratified, coolie tiled awl ,' II 3rI.14 • 1,t; being n-ilhhcld by The Pure Oil Com— validated by the validating statute of ;7+v •••..1.1.i•"„+ a .,•i�f chi'.a I�:ua)• the crude oil purchaser, pending de- i < 1 ' termination of this action, 111)• Section 36-11-1, (. I sv •, 1' ise tY Ill I. ire, �' 1.',•,...,7 i n, fir.wl of the matter to the court was hail rr slhe plaintiff contends that general pow- .c.-,—,, granted h1' Ihc Constitution and statutes „ •lea ,j �,,, August 27, 1957, and at the close thereof to I'oards of County Coanniscinners have 4 the trial judge announced that he found) the no application ilication to duties to be by � A 41;f 't issues in favor of the defendants and di- formed in disposing, t them per- issues a..t I ie ' a`- I L of title to ease ac- r 'Ir� tilt 'i ' reeled the county attorney to prepare find- gored i by counties through treasuer's es<a 4 I{v ei ti ti ings and decree. On November 12, 1957, deeds issued for noiipa [want of taxes and 1 i l.iii • ''t iVa€ {)e extensive findings of fact, conclusions of that the commissioners have only such yTe v '{it re.. F' law and jodgnient and decree were entered powers as are con furred by the statutes; 7 i �e ). v 5e1 4l, I by the court, wherein the trial court quirt- that the revenue statutes provide for the y i 11'f 1,+.'t oil in plaintiff title to the surface only, foreclosure of tax. hens by sale of Ili" prop_ I1 i quieted in Weld County title to the oil. gas arty against which the lien accrued as a f f r, i 4 ' 'tfhl( l�p,r' � '^ - and other minerals, subject only to the oil weans of collecting taxesand contemplate It cstit ) (i and gas lease from Weld County to Amer- that the property will he promptly sold and fit. . r Ilia l T,i•I ada and Diirin'1•s overriding royalty in-I )rrestored to the tax rolls and thus stain /.i f 4 r ti } r • here ct. The court also held as absolutely produce t:ix revenue, not Hole for the color 1tt.'1t'f7;srsf ''I void Ihc oil and gas lease from plaintiff tv, hot also for ttic st tea school dim riot e 4 u icy,rsi{,' e Iv to Amcrad:i. I � � Wee li l,^ n and other entitles authorized to levy laces, a s ( i , e� ti I'lainliff is here by wirl n( error sec kits Afield ( Wanly I nn rs the poster m (hat rl awn, M11 ./?, �fely iii. I reversdi i ohm, hint., (I) Ihal Aveld Coarnly. under its gener;rl Ir v,•rs, do as it secs tit .IIi wllipf t1a.,l 6 hind no right or power to retain Hie min- vcilh any ;Propel lv In which it acquires liar- I` feitlll m1f trails: (2) tnil its powers awl duties err 'file ('dings, eourinsrnns of I:uv and dr- �1 �, r (l vt�i ' w I 'n-emir nwg and din na o l r ,l Ji i I f reel merits a[ erer herein e t the VW;lily I I fie emit by nl r ilia! ity ly.; -tic count of nonpayment a iii. (:axes tic dch nett Wry, and signed hv. . el itt • ( Ihr yVier, err rue the�ee L,,, a i!4.. b)' Ihr revenue el otitis I;nvei'nog ass o- views gad e'nnlr rn ions of Vl rld I.ornrly• ale' i i 'earl, less and collection of la es i `t ' je e rather The pal dished notice1 of s wlr clearly states fie I n de j�e�) I' than gene rat shad HI CS dehuiog the peeves that the miller:its is In b, r s r ,! lie Ihc t and tubes of Ilonrds of (intuits' Comma ti t '7° rr "p 0' comity; the bid made wer signed b) plain- t Y r F! naonr rs; 131 that Ow revenue statutes, till recites that Ih minerals air I i hr rr- ' ' i sft I.! Ethough granting to the county power to ceperl. Preceding the auction sale, the II ,•.ijerir )fSai iI I In dllf: N r . � J I r glll 1 1 c(A .1.r1. ,)lw Pi?'ri,p .., a ,"� . 't 4 f t t' ',a�' If ill :1,I,°;,o avi r Vii, 1 c 6!. Ifs I t mu a e ' a . i,t F+o- l ,n ,, i;l' ' is _,rf, m , l" ,, ,�,th,w 1 L. ( I Iii ,, rIY,p YI :,)., ttir..� t '•r p� aG��62�tiiGivka"c1 {_,Rr: �u ,: t Ja1r1� ? 4111 fir' ar r 'i fMs 1 tad' 'h11 ( , ,,rya. li r r '. N.t 1" ,e' s, Mt, v1Il,'.;e ��4;a' ate 4cl 11�" (I is Coyl Hi ) (. i r�y pat ala r�l{ '11 �a' l ,W "tilt .:-.11' i � J'"1 t,� lrlyyr�rR �1r" t Ii � I}• r 4 a f I II(r L 1� �J A h n I . r'14j, [r�r I'( �.1r a /�'a aY[rul lu, }n��yiLll, i'I�4a)d�r Ir,ua i✓1A ....Cr ,it — u 1 , �� , ' w FALtNII{ v. BOARD OF COUNTY OOM LtS OF COUIJ I'Y OF WELD Colo. ,11 j [,n �Il'I 1 { ,Iv [� ( try(i ) I ( s3nlv.2,1ie �r iI' f 1,.f(hj 4 p, P1,1 ' ie. county attorney announced that "all mm- of this Act affecting county lands, r iIy 1 a '- f I 1 t 441 � 1 c rd rights are ha m{, resen•ro)I Ly rho. coon- het rin(orr, nnalc nr entered into by any � �r ,1j , , � ., Ip the dcc rl issued aura ddrccn cal to the county actor); by its Board of County I II",t I•IIti s i3'+al plaintiff granted the land and provided: Commissioners are hereby eon finnul, II rr [• :4.ii +- �� ;1r Ili r 1 al: „• * , validated and declared to be legal and 111 1,I{t ' �, lea I rrcrr-erg Ihcrc(rnut � II � re.,4 valid ,n all respects.' t to grantor, (Wild (onnU-) lhn oil, gas ( ,I or other minerals therein " I laintiff contends that this act does not 'I r ' `� + 4� bl a��r apply to lauds acrpnirrd through tax fore.- y 1'1.'1 �' I ni; The plaintiff for eh veil years prior to the ' f p I r b - closures. Much of the argument is. panh. Ir r 1 fit 4+,, commencement of this action had posses- c r 'Ir } ' Iii.;, .'41 slot, of the land pursuant to his recorded rated on the (:¢t that m o inviting the I 1943 Colorado Revised Statutes, the above r.9t R � i `l1 deed, and during that time he made no i ni claim to the minerals. Clearly the record chapter is found muter Chapter 36, C.IZ.S. l [tl a y1 -t, eA 'i3, "County towers And 1 un'tio•u motto- {11t.: 41"0 x, shows that the county never intended to { t � �A sell the nunorats and that plaintiff knew cr than under Chapter 137, "Taxation I 1.;i l —General l'rnpe rty Tax." We Ir rI that ;1101i) � ;r M �, ' he was not Lining or paying for the tin- ( !! crate.. lie now claims that the statutes counsel attaches undue significance to the 1;1 Vitt provide that the county having acquired l isation in vvincll the coma ter of (::1`j11- has i!... a�'T :,rib title through a treasurer's deed, bein • part placed Urv.nt'n ( IQ Laws I'll'>. 'l'hc above { ttl� yP]r dt+, of the foreclosure proceedings of the tax quoted suction expressly governs lands ac- pain?r�1 r ta.t.„�.etiriS 'lured by the county on account of non- ' .!1,,.!,,A 1'if'tr+l lien, teas duty bonpo to cell 'esth property 1x14 ,(p, mad stns tvrlhnul power to rrsease any. payment of taxes as evidenced by Section , v a4 6 Ii 5 of said Chapter LID wfimh reads: Iti r t ''.� thing, and that the attempted reservation Tit ty p �4 was void and mere surplusage and that ' The terms 'real estate owned by a • plaintiff acquit-cal a (cr sin) le title. This county' and 'county lands' arc each111 }, 1 �i} f y! contention of plaintiff finds strong support defined, for all of the purposes of this I�AI�� t. t0„]r*' in: Burke v. Snulhern Pacific Railroad Act, to wen. any rat eclair nequired ,; Ir� 1 1y, r'( Ca, 234 ff 5. fiO, 34 S.CI 907, ,5S I. Ed. and maned by a county undr'. the (tic c „� :,4early' , ,,I, 1527; Walpole v. State hoard of hand relating to taxation or o(Lerea.er. TheiYVIV �Y..'1 ' Corn rc 62 Cola 554, t63 P. 4-IS; ICopplin term 'oil and gas' as used in this Act i �ti ' .{'�;'li v. Ihulei h County, 77 N.U. 942, 47 N.W. rs hereby defined to mean oil, gas, ens- Yjfut+ V� q'E �',, 6 bighead gas, condensate and hydro- alb s 1, 1' 'r 2d 137, l yl tl A i /; carbons or any one or more of them." t � ,,hea; [1] We find it unnecessary to resolve [(Emphasis supplied.) '• � ,A h this question, for the reason that even ! ' I 2-4 Thus We see that the Act ex f 1r kn 1 }pea though the reservation was without author- ] �' fly and invalid when made, it was validated pressly covers the exact situation presented it ,((?�} ,1� , by Laws of 19-19, Chapter 140, 4, being: by this record—it does undertake to sell- • e. a 4•y G1 -.it, j; "An Act Relating "1'e Oil, Gas And Other date the deed issued to Pernik by Weld fN ,,i, Ili 'lilt':'" '� I Minerals In County Lands," which pro- Counhv ❑ed it does define County randy :l ', ! a y'% y,i, I vides: as including those acquired by I arnik. - 'd Ik4r fNlp1, • � C5 �a6�ftx1!;. "A curative or validating statute is �a0its1NQ't4/ "Fitton 4. All reservations of ailIi J P1 n 6 a.Ot • And gas and other mineral i i hts and nne whose purpose is In cure l aQ Cr- r"t(l(+al I{ 1� g t cy,atpP • sales of previously reserved oil and rocs. , nussu ns and nr glue's, and thus � sr ff ar r l��i gas and other unnral rights in county to hake valid what, before the enact- !i 1 lA14(ail2. ' �P Il�irl Nov tatty lands heretofore 'nude err entered into nut of Ihr statute, was invalid, * Y-44:1 .4‘,ells, .l" by any county acting by its Rnnrd of A vandati ng statute grants no iudul- efts �l"�j' iti}74y _ County Commissioners and all leases genee for the correction of future cr- ut fcrR�' 441(': tt,4C��;�;, ru of oil and gas or rights and all unit roes and nlgbUs." 16A CI S. Consti- a x y 4PIV,Ia lntional Law 421, page 121. 4 !'.04 d agreements relating to or dealing with r fait e1" ail oil and gas and curtaining l 1'ovisions "common expression. of the rune arc 1 i :41, )pry lt,,i jlra similar to those set forth in Section 3 to the effect that the legislature may s,:,.it s.,3,.7:,..,,:,1-.;. �). a a 7�3.a16't ..;. it r' }4 r ltt,�j ta I;I t ji,'ak.p r r '{ pptlae ai 'a , 4i .3' trikit ill - i a[ In AN+, 13).., ..... . _...----- ... a 11 ll; d M 1 rl h/ f 1iIi I ati ad I I r ' ] ° p ' 11�,,'y"�'d nj 1 ) �j 4 iii ( 'I . 1�l}� ', ies I�v",��fi�:�u�11, I K�4 eM��.�1� �,r pot �'� ��I f)&i1iPJ� �'t. , iLi �'h �1�Y�9t"�9r��' yd if 9,xl r , Su.l... ',,1 NadI4,. Jii+.. 1I 1[',t' J t lilt' 11041 fk . a. I�flrl+� �� ; 472 Coln, 311 f'ACCFI0 REPORTER, 2d SERIES al 1 Ia t,!. I', valid:de rrtrncpectivtl) :ino l,eoeerding unhawful when made is not validated 1 .• qr' w 1 II which it might have :inhere itril in ad- by subsrqu,nt It gtsftl inn. In our npin- 1.kit'c ir° v,uvcc, or may cure by subsequent irn said constitutional pmn ear does �, ASV 1 I IS statute what it might have dispensednot apply and was not intended to ap- 1 tr' ,, u ..[... I i l , with altogether.r. * * 'r 16A C'.I.S, ply, to acts valid aUng contracts is there- r Ynr' l.t t°)rr9"I I la,i CnnsGtnli n'tl Law 1 42' page 124. Infnrc m'I L nn I Ql:al( of the state. a�r �^ ,, I!. i '(ienr•rally spealvnlg, fhc la A'islatnre V. ity of] Nevv Orleans v. Clark, 95 ' 'I U.S. 611 655, 21 1_Ird. 521 ; Canby c ` "'4 ' j.;' mac, within the con>IilnUnn:11 limits la,....).t1 I' h i, n[ its power, eon formal life ale in nn ('amide Urinal-limitation,' (tilh I,! ) �tt1 �I��,r II{ { I ,1 r do ids and other vv ritten insllumual5, vial. 2, p. 7), Call 'lee v. Al atlhcw ( i tP a1�I 'nil cm, 2 I I. 3Clt, 7 1 .1. l I5S Cowell cilAr ' l 1 •'-v , nnl nivc Ibenl the stns validity as t i' v. Colo. Swings I n , .S Coln SZ" t''- I v ' f a� though they hail he(II property exe- ruled, since such Icgislnlion, even See also Driscoll v. Slate, 33 Coln. 390, 297 Eel 'if_l1 j,'; - ,1; r Ihon:di it may operate to cut off a right P. 939. i. 1 1 "bkpt+ I}f 1 I1, T Yaf action that would otherwise exist, The deed given to plaintiff havmg been a�lir I..�iii 11 ] i: is Hot u,nentcled is d,priviug anyone v;Ilidnl rrl be Ow Ira l'I statute 'in.-Indus ` r f of v elided r1 Ilts lint rather as carrying ' ( +q ,i J I g plaintiff from asserting ovuershlp of the I i'lf ''d I ' I into cff.et the intent of the parties. r � r 11. ' * * * 16A C .S. Constitutional minerals which by the v thirlar l decd arc ';'?5,41'i..'f ` l: n ' . ex ,iessly n,cerved to the county . by the ivl It(wt �n,r1I Lave a 434, page 113 s,unv cL,tnte the lease granted h \Veld it �t' � 41 He virtue of this statute we find the par- 111 Crnnaly and now held he Atncrada has been if v 4 + t .,? a ties to the raced placed in rhea exact p rc itino validated, and the court's jud nand quiet- 1`,rsg t r r.� they Minuted: plaintiff is the ovv'ncr of toe: Well Cnunly's title to the mrnelals, suh- r! }rid i 4. 4,{ ,(„ ]tq ! I; the surba[c, that which he intended to ac- Icct In Aloe';ul�a's lease and I)urlaud's nvcr- tf {y k gone and that. for which he pod Ind that ruling royalty interest is correct and is �';:r } ai for v.hich I,' has a deed of conk ev anee the alfinned ....7 � 1 comity is the runlet- of the miner rats, that • r r t K II S In view of the elaborate and far-reach- ,. �i$. -L y ' t 'r vvhv'h it never Intruded to sell, (hart which inC hndnmtrs irf fact awl eonclusn ns of last' 4 y1{ t At � y it expressly reserved m its (Iced, and that entered by the trial court and the further e4.v tf�f 1 1 ,'t for which it has never been paid. 1 ;:i.)."' I "I, fact that the Colorado State Association I 1'flti��'y Ir . 1!i Similar validating statutes have by this of County ('nmmissinnrrs, avolnntuyttma- 0ilrx �rylf AI s l' court been upheld. profit nrg utizatimt, representing the cmInly + 11�1{'I t'kit j ,!I i5] The fallowing language of this eoulmissioncrs of the sixty-three counties *p11` Carr t `I court, applied in filler v. Linton Nat. IS iik, of the slate of Colorado has, through coon- t 12 ''r r !`. II I . ,.a 1r.iilnitr� _a. 1!1 ,*: l3 Cntn. 3i.i, 296 I'. 796, i9�4, Is equally ap- set, apps tied herein as anneus runic and ra,+j� � �ii phcahlr• here: urges the correctness of the trial court's �{ ,I findings and conclusions and in view of the ' IIII t�lf� yli,, .' e'fhe conclusion is I wider that further fact tint. the curirctne.s of each a .Fl j i the �:Ilirl cling act here mister cnnsid- rr q of the root's findnlls aro challnprrl by i I�vdi}I tear :u er:rtiam suns intended by the le U ,I:dnrc i(il Y1d111' m plainlilf and because of the public rights v.' rr 1 id v 1 53 In ;Ipph In Iloacc salts n( 'IIr Laic a ;1j n�hts, and Ili rt. it i III I�rtrs swh ides tnvnlcrd and since counsel have fulls :and 'r' ... tl k', l ahlr nrrurd the matte.s, and lest it he I.11:1,:....,:1,1,..8 a ,TI, lades sub aca in come mast notion:I a r { de olnrd Out by elhr mince ac apt pm o‘�dl ,,Iv N ` ohjrrinnl. In Ibis conlmr Una our ;1I- .i.i, Ear t ' several findings of the trial mini ulna]. . !,',,,t., ' Y Irniion n „died to ,,,alma II, artidi•. l ': u�M"L i. . vvc hold ., i ucrml mt and for w hitch we tri1 '4n .t 2 of ilie stale constitution which pro- ' e I tr lrtjl einc� 'Ilirl eI *i * * I:Iw + * * find no, ii Iron in la the fill twig; oh-•7 i. § ifi * * set%At ins are (b—ink advisable. i1v .i tf� lrr Iclrospeellec in its ep rlUon 1� A � a y� r 1111 i shall be passed by the merit assent- Plain the urord hi rIr (s :uandappearances 1 ',ill 'it ipc�1 tanningIIv' andn v ()1 'roe e .( S? Iefore u. it appears that AVeld County and r , ),I:i 1 � i ,. 1 . 575, 578, as holding that a contract the a fnronnntioned Association of Comity, I a 4'i f t, h YN4f `'r7 ,,l,r ,, tj :. tiff ,q., (I'1 I :III if M1 4(,r ci,It a aveu44,, lti.t,si "M r4C :irk i I IIr r- u r tab:'e"f1U I� , Al,,'.a. L, li.}.� 9tv(i k.T r4, �rl'1' . 1 u , .'r--`,' tSfi i ',Ill'.°!' L.J!1'AkP by wp e ` (It:,',.Yfa;. . .c p�Ir�a1�1tp i y�� q M 1 it r�Y� ,W:'w.�.�{`::;i iIIIW' .^. NN 1 PdL`.. 'ilitalid'�[ri�t1' , h ' %aglo.Y`7: 9!m --i�t''r .'/Ja rfr1�°i.;I;i • • FAILNIK V. BOARD OF COUNTY CO ,J7�1 �ii��lll'j ��-4'I1.S OF COUNTY OF WELD U ('nun. Ialeel ' fit ". I VT �Irrl�lt 1 1:d r nrmni. ;ionrrs tithe- the position Iliad corm 111(1 and now n arly 'limier?' 'curs Errs' t till- e tics have pourer in dealing uytth real pa p still relurirs lith In this Heim Ile rnl pre- II iiil� a 1, pre- does i ill to do an thu ; and r ern!Bing unless snni ihlu claims that it is the le gal and 'qui- a t111 • I s' .ip prohibiter by solute. Illustrative of this table. mailer of the 1'roe rl', free of state— rlu If 1'' 1 77 lire- ) Ilillr;1. !r�,', aninale is the folloemg, taken from the tory mandates and inhibitions, and Willed !71111 ,Ile. . }t tale. 95 roosts omrbiV ms flee cnncht,00ns arc- to i turn as its own all no( nue 'intyid I III . fn fin. pared by counsel for AA'rod (loon() : therefrom, and that it is nn I i no r 1 ti::u. 1111Ill 0 R)�' Icy11 �, i a ' hat. the. I ;n'11 * ' kid lion to ion d sl of the I r prllu The [ I'l'l ) i , e u-v and leis full pourer and authority ( dm a 10 Crate Atop etali n ii f County l in- [5 a n * r * to make. such orders con- nusHoners has ay t cared 'e rein as friends nil 0 } l !well 'i llI''t a,,.,, renting the plop(etc of the County as of the comb :Ind 'tic,', Ili t sir al,pi n r the [;.f. it deans rx ,lien.' " • * n h,rr acli lis and e truce - t IIIfi I I n( Weld County ;Is tl �f �, '10, 7 no other pen icirlby evidenced by the record before Ti ?is and that 1111 f( �n. rrc ore antrir talc." (h mphasis supplied heel.) we place our stamp of approv:d en all of ( Y k'Ilk Lcei1 f The de fcnrlanl, The Board of the findings and rondo rums of the trial ! r+�: eludes I County Commissioners e f the County court. This eve-do not du [ !1 of the of Weld * * * had full right and We finer nn svielinii in Iany for solo' of i l;1.tD,�i , d are authlnit). * * i mdcxc pi'oliihiti'ti the actions of Mid (',awls in draliilg Leith I [.( Fly (firIhr land in r 11}' !*ir, or limited by c.rprncc sboirte to the Incstinn sill*, to the eau- . •� , (1 VVeld contract (Emphasis supplied.) :wee to it of the trcrosnl e r s deed Tile ti .)1 5?5,t['. {.r 't Is been „7. There wasnod is no statute of county fines nut have blanket authority to I iTi,[l. quirt- C deal in real estate. its etthority is i °,!: Ihr .State n( Colorado ;chi(/' limited or , „ Is, sub- prohibited said county front * * *" " 4 * * to purchase and hold real I I0f.al' and personal estate, for the rI t, n the ,. tit •i'f',ll over- (Emphasis gu pplicrL) I f ,• ' i,},}.,; and is county. and lands sold for laces, as I {114'44,..'.ll "9. "there is nn provision in Section 1 ;, �it'� 1.37-10-13, C.N.S. '53 which restricted pror'idid by late„ I.R.S. '53, 361_ . � 't1ttIF!n�l reach- - the right of said defendant Board to do ](2). '' ti 7.41{ ysl)tl of law • - nr prohibited it from doing what it did [81 The property in 'question was not ,p '1,){.i E(1. Tirtiler do, or which restricts * * * " (Em- purchased for the use of the county; it t , n ftf t( ialion - phasis supplier.) is not being held "for the use of the I t r ip,,1';,} r eon- count Rather, it is lining hold as a 1- [6) The above quotes arc repugnant to }." g `tk'li manly I EF h��I," i the well established rule of law that coon- speculation; it is Lung uaihhrld from the t;;di 114 unties tax rolls and not "aspl.(sullied h lY commissioners arc officers ucith only fide- )- lave " Let It I yY,l,yi roan gated powers; they possess only such poi._ contrary to express stalut try provisions. ell li ii.l 0 , It, and ers as are expressly conferred on them I r I court's [9. 10] The county has no power to ac- 1 ?I': )!P14!' either by the Constitution or statutes, and, a p f i of the quire real or personal proper v as a s ii ist a y tl 1l'i� ¢I ' in addition, such unplied powers as are lotion or an investment, Tine lines it hacc R r cacti , i 1},,l -d by reasonably necessary to the propel exccu the peaces to retain pn quirts. law fully err- it, i' (}}S lion of those expressly conferred Rohhins quire(' ter Inc use of the etunit ' uvlicn the ' t i"iN. rights v. Boulder County Commissioners, 50 Colo. I} and use therefor no long( exists. It may it ' I ) t ( GIU, 115 I', 526 ) e t•• •11),'(,,}„, it he quire and set nn such pi opt sty as it Ins' l II i t' preen . [7] From the above quotes one might reasonably nude or ill the terrors ebbs ( .^ 1 mlaicll ' mnrtude that beams 01 rommissiunrrs hacc (mite(' may ieason:illy n .it—un more. ill f tt ,; , h tee _ unlimited, inherent powers yid are hunted Such needed property is exempt front la.x i- I'r l ,l 'i.l only as prohibited of restricted h statute. lion—other not needed pitchy ri' shou111 be 1)' i t),"1 og oh- YI 5' I,t ill,.n';1 Counties have only such powers as are on the tax rolls as proved(d ly law. r a i+r 3 dclrgrited to them Their claimed inherent Cnnntcs and enmity nfbrus are charge„! e ! +(�'I. a urn's powers are imaginary uand I tekui ` y and p ' larking with specific statutory dulle.c ill usessing iA(;� vinlc = In this case N d I County acquired title property for lax purposes t,u)nig taxes, I .4 a , in the property involved on November 15, collecting taxes foreclosing tax liens when i JR[�.,V Alt 15.2,1-30'.S �t 4 nil _. '0 I i! f te5'd1 p`1`'�`'I ! LW�197 11.1 {1^��'�feL1?'t' �'A we,fi•,,,.„,,,,,,,,,,,m4,,,, r! ' i9, sr' Nj 1^Ir+A N6 i SEW. I� r. i** 1 k1' 1 +( 'C t l / 4i d i'! r 1 44N41t4333LLL �aA�.rt '.d. A '[Vtl'A' Ialf 4 '% v' q*T. ' '' tl,ie .�1 .{. 1 �1., , • -,I.f w {,i±',',1 a 1 ;e1,14,',, e " 'i,4* loan rl;ti Ml'•kl' , IIp r»{(,,ri. r r a a .� l a . , '1 1 1 it IIi. €I;';) ti•kd�r'• k " 5 {f`;W�fi r, �'A1f N'. ,' !f4y ,t r��t 4 1 y FYI+lI"t P isftlltk,,s�4 v. r�4i°�i ', P .i it i 4 t3 lt, rl 1 f t rd r it ;. 471 Colo. 311 i'Aell I(i ]6lll'OILI};IC, 2d SERIES 4 r l - r f j :{., the taxes arc lint paid acquning title to tax lasts 1't13, chap 165, sec. 2. (1.37- )l!} tai ') 1 i1rl, ' dolinquc lit property and disposing of prop- 10 .13(-0)). (I]npllrcls supplied.) ' tr14°, / I, eels Si' acquired. In Ih ,'•e natters the "All •net proceeds from the sale, � i 4,,, 1 r1 , , enmities and their officers act in behalf of I,.;ts. * ,, * of such real esade Lt':u� I'1 • the Stair, T11 tens and Cities, School Pis- 4 * * shall Grst he applied to the h'lc l lisisl �'' Ili • ) ttc, inn nalu s ,lisle let c, aunt Thal I'c:' p' tnu•ol ( all unpaid f:nrs :u'enl I t'• , 4 , III aulhmrlrt s. In frcl Ih.euhf a curet n, .aL lua=I Illy prate plc ill I° the Imrr• y( •' r'4;''..:''.-.1 t Iher than Ihc St(Ir, p uv the 'I rat uI t t fir' the tax I ,,I was h soecl to Ih, e unity 1r } ' p F tillectin,g and reuniting taxes by them ❑all ally relnuillin.g avails of the sales 1 �k,ll�f r } levied. C.N.S. '53, 564-2. • stroll I e elydited to the ordinary enmity ity nlrg. ;a � 6 - (11] Title to the land involved herein revenue fond n( the county." Lat.c . it Y�`t rt «as aegnired by Weld County pursuant to 19-11, chap. 1c)? sec. 3. (137-10 131. r _a r ffHi. I) • C.R.S. '53, 137-10--12. The title thus actinr- "VVhe •never each real estate is enm • ri,.,l°,. vii was subject to all of the restrictions and veyeil Irp a county treasurer to the yyr 'tp Iinnl thus imposed by statute qutcruilic shorty by r tx decd upon or under Ihr 9? 4rt' a j the argnisition and disposition thereof; provisions of Section I of this Act, h r 1.,e a auunng other statutory requirements we find county as c..nr shall meJ;r an II Arai=:d 7r { 1 the following: of the full cash value of said rrl rs. J'..-p .• j '� • " * * * Thereafter the county title earl, year at Lh,• same tmy alai IIV1f''tt 1,14' fl j ; commissioners .chnlI list such property in the same main(r ;is is note prtniderl �� Ir YII ! ((. i . . for sale * * *' may make such by la fur the ;q I 1 rev I of real ro;itr �' f11 "'j- f essential repairs flint eon * * * as subjctt to taxation fur ,icucrl slab. shall he necessary for the protection county and sellout purposes and sh;Ill I' i : I 141$ iii and preservation of such property" st.-Ile in such appraisal the amnion Laws 1911, chap. 1n. sec. 1 (§ 211 which such real estate would me t:nil 1 Ø ' ' ' (a), drip. 112, 193 (_S.r\.) (t .R.S. for gem rat stale c only ;old sche','t f_'i, 1 ,. '53, 137-1(1-42). (Emphasis hasis supplied.) purpo5 c and special ,1 -^ssmrnis ill +tijOall "i d i� i ij „* * * Such real estate * * such year, if it were smijc t to such 1 ti11`t(^I f'Hie t .droll hi .cold * * * at public sale, t(INC,: 11Illi acesmh ots ant! the a srssor •a ,e1 rl'•L l ' such notice of sale shall be :Rive' shall fnrnim to the 'rotted of enmity r t+04.;I Cr `11•4/104. i,r +•,,', I - in two issues of a newspaper * * *. cumin:isomers mers a copy of such II p oral • 11 .'c, ila 1 All sudt notices shall reserve the right and sl,tlen ant." I-ews I'?I1, chap. Ic>2, altt 11I r g ' upon the part of the board * * * sec. 2(a). (137. 10-.1311) ). , )ol x g e'el,'t st* 1� I , �(i ; , In reject any or all bids which are less PI(' record in Iles ease shows that Wel l ,�, I�v !r I� 6 i} than the appraisld value tune fixed 6)' County, late in 1913, t tiered for sale Ifi7 I opt r ' I is the County Assessor fir the year in tracts of land tin which it hail acrp,irol 6 to l '• which the sale is made * * *. treasurers lees.,, 1ritu each tract sold *k ` a' a � ' Such real estate may he sold in such ItP',Y e i 4 rt reserved all nanoIts. At the time of t *n } l a it • ' lots or fierce rtes * * * as the ]{naiad t11is sae ill 19-13 there was no staLii Il' . "`11! l ( t of ('Minty Commissioners shall dam urthirill Ir ewer tc the rnio rlls. Th yy . l ryl i� a acceptable hell no dud shall be issued I fart that Ih. -I:at ulr provides that lax till< �j�' ' until the purchaser shall hair made kohl ma‘ lie ill 3 r . a`'! t i payment local in full. 'u ° * lop, n will- ,, u r * * * in och Ions or p:uu;< I • t3h )r i(h , 1 tin application of cloy person * * * * .d! dl tiller (ir u' Inn hoard ^ * * shall talc r, i the hoard * * * " T deem arc ptablt IT fl j .14a {• M ' sole Mc properly rain cheat I t cud! a l 'A e tai r to F r e, person * * *. The board may, w l es nil. nI. ru that the bred uua nscar _ 1 r h�, 17 fe{r, ,+�: its disc mUun, decline nnJ r,freer In nnneras nl mahc , Ih rinmLl di chsioa r.f ;a eIII!.agll 14I {. 1 filler for Sidi na1' lute Or pnrn'l.e rr.c may the property.erte. The It„islatnr in 191'1 *,1 .r• f .11 4 ta,1l� r ,, � hr nrrSscny or useful [or the ordinary :ub gall rrl a statute get tuna In nnnllfirs ("TIC �„ '* t.l' I. t,'I;,,al J .c functions of county gnyci nnreau." authority io reserve eve nuncrnls, uIS rt alp. y -I i a 'hf tl a )'t Y1 1 r, V rn r { ( f . ,it.rll 1.h i(!. ...o, ',.YII,e,n eiYLx4nf�fhl Y41tliN li{I,IM�a.r�5 t�i',iR1eG,.7�1*J L, N9�IJfk�1/�:'felA�7�i 1'�Il. I Y e �! Lt( LN n r' r;.il', a1"i f l'''''''''.1.14 4ilLi" ('y ;J.Z u"....aY ...,,Aiii�{MIeha k6YL m : a i�'yM1ylith41JIYiHN�y L7j �j� ractL'.1:;�J'LI ^I a Jr 1 '` It t I;lgIQ, `` 11' x' n fl^'tiler ANDREWS t. LULL ,Iiil,, if kt I Colo. I!:ti j�l��iil ear S d pears Ihr I'1.1') le( iJulurr err nve�l the i 'II r 14tb'{�l(N ! ',Mil r3lmml as AV,-0d (Thinly lips .I': r 0,1,! ✓yl r t.t fail HO sir h merlon ily' lied be uh I n,:vinusly _ rr I by its inn atom izrd retention Of this 1( {J'�M�� grant(d I.asys of lo lo, chapter 1IG. (C.It and oilierproperty, the state seuhnal di,. r rlrHi '4 e1,p, S.15.4,36-11-1 etseq ) lriet, ate! other laxung authorities hart .I'11 I star d�' lost. 'for minty acting for itself and as Irlll� 1 m fks [12] Promptly on squirm title to real agent for other taxing authorities is (OW- 'lItI i m d� i 'll. e stair not n v ail f r e n u tty pimp sex, sly ps Pale l bs law In perform its dirties in the tit a,hr should be taken to s II Ihr properly as pro d err wises. aI m y q midud and n gored by y law. The fact that i I 7,}13P t Is l'hr. nt lgnn-mt, except as In those mailers lee e , 1 �k�aY_)� pectin statutes permit the county to re- noted rbove with disapproval, is affirmed. ;III ii ii e µ{Ire ^,',Me the minerals only means that it !nay s reciter and sell the minerals separately. MOON-d': and UOV1,1: iJ., concur ill tilt' l .All county owned property not needed for results. IRS' the use of the county should he sold prompt- , . . ' 4� 6 t 9p1Y • DAY, J., did not participate. iiCl I �I) and as soon as lack of need is apparent. lln fact that it is solder( ton valid lease [ ��Ij 'd( • 1 a ' or leases does not preclude a sale; the w •L All'th vfla all. prop( —surface, minerals or bath--cart s : N i o r ire,s.snn [ +(i{,-) II• i f rit•f40� ytr he sold sal itct to the brims of the (case I11 I� )44 f.l which lease man add to or detract front the ){ 'attic of theproperty. �ndr ql�} , procedure 14 #� � �,A. 4 Il t '�i;should promptly be pursued n fill I'd'(ATTIC(' y+ M. Richard ANDREWS d/h/a Andrews F. Ktd }�4Sirkt'• to the snh)ect property and all other prop- /".1,;.;1/4;Company, N. B. Burt, Tom Bradhcrry and [r r- r e rites held Lv the various counties and not D. M. & E. Construction Company, Inc., a lid �°i � �'r _� needed for comity purposes. corporation, Complainants, e pty The properly involved herein has, in a °' • ). }111-41}}etylp�4'': short period of time, prodncnhl met rcvonnes Harold L. LULL, Honorable Harold H. Hac. (s � � .�('' of over ��,hQD. Irnp rly so producing risnn. Judge of the District Court for the ([ Pte Eighteenth Judicial District. and the Dist Ij in to nV,',a should have a cash value, an assessable J l a .Ot ants ` trio Court Eighteenth lh Judicial District, I 0 h1 y5,.,`r value, in the tens, if not huneheds, of Respondents l � l w}(;:g.4., $)I� ; thousands of dollars and when put back on No. 16939. I {� lrr the tax rolls as provided by law it will j 1 ,49 �' '� provide thousands of dollars in tax revenue Supreme Court of Cob 'ndn, d l kr W[I'� . It' Itinr lees t': • for the state, ehints school district and r rh [r s r other taxing authorities. AA'hen This prop- .lino a, In-9. k• � � [. I arty is restored to the tax rolls Weld Rehearing Denied July 20, 1959_ 'ill m"'[,1'I I County will get its !proper share of the tax li �r ,yfr, f - n•lenuc derived therefrom and will have Original prnre,eluag m the nature of + r .r e�mf to forego its ill-gotten royalties and rentals prohibition. The Eugenic lion rte Sul- la i' r� I q,.,, from land that should be 'riv,ately owned ton, f., held that vv-here appeal to district 11 �� +v-1 1 i9';'• • rather than owned by the county. AV'elel court from juelgntent of county churl - i v'�t ia'Y ('aunty pursuing its 'recent policies as in- dismissing a civil action syaas hat l akin It y!y(1.6!.11',1',' b!0,,,,,!:l, dac:drrl L1 Iris Reno! mid appnaveel in the veil hie 1(1 clays a her rendition of Indl . a r�(� r'�I r • trial courts lur'linp,n c milli:,ions :aril (IC- anent, as rupunal Is ( .Is•C. , 37.f .Ile I'IIrh'�d l'I: crre could become the owner of mid bold and lire for taking such appeal was not r a' ii' +'i,1cr•' ''''ii' Aafiic i at its pl e:usn rc urrlimiled non Lu.eahle real c•xlralrled l')' c„umly court. list rirl court. r 111 If WW��nfl�by estate in,d this it,prim• Ilea stare, sehnnl hail nn lnrixdicti„n o f appeal, thnnl.th it ( fl ihtt� 7 = a district and nth( rs of lax revenue and by sy:w taken with ut inn days afire el'oial ' i r ,If':. 4�1 0'.. such actions cripple other governnnental. of motion for new trial. t r ra rf;'j1-". aµueies drpcnde t for their existence up- Rule to show earls(' made nlrsolnte, i nu• r, s{ uli l4• on lax re%emu's. Doyle, J., dissented. . n •) +{rnl{ 4,,. eI) deft Iti„, ' a f• rF ho-ti i ;i +. 11 ;.1. at (I I et' irt.a q . , h t el . .sr }y ,l�J 4re0 4a hq0 r‘ 't4 , ( rllnJ�V�I (efts l I ,.e l' r { it �I 7� da� l 1f tI" h e ye ' a'a�9 l ine ,l, r, ,:r.,"•00'.#4,1 a l fe IV[A� i' , 1. , ��'�` vy T r t r ;e 5 I f r y Yr,,�tr y r� �t i tin I ' a na., . . sw �rd{.bld{I�a >!(�lalrr If(f,',r}' 1 t 1 Ah'4 S It' s 1( OR 1 Gnat' straw "TIM! Shannon sday that the We* coast board of commissioners hen the ority to reserve minerals tut- dlr the lands which it acquired by Osasurer's deeds. Judge 'Shannon's ruling ''fi�na dis- Wet court here could pots=** save '*i' the county millions of dollers in oil royalties on such lands and Sittablish a state-wide pattern. The ruling came In ; suit SW 4 Frank Farnick of Fort Morgan against the Weld county teen et eammissioners. On Nov. 2s2,(01:34,3,1:12.4 it.-auoki section of land in easter% Wait *Minty near the Morgan Eaeste border for pasture land.1*:Abld reserved the minerals for the:etter Is November, 1955, Far ail se in Weld county distrt t cart blitlinting the county didn't here inetaiority to reserve the minerals weber lands which it had acquired brtreasurer's deed and later sold. rarnick paid $800 for the 390 items for use as pasture land. A report early last spring showed spororimately 327,000 worth of toy- aposs had been accumulated by than and were being held by the Pere Oil company pending out- Se of the suit. 'ledge Shannon's ruling *Bowed, b hearing Tuesday morning in. which the county was reptaseated by its attorney, Robert G. Smith. ilanith was given 10 days to prepare findings, ca . sad decrees. 1 The land is the E 1 of India ;,township 7 north, range.**s eft*ell has been drilled on the lead to date led is sow pretest. C - • • To-Hold Minerals Signed by Judge A decree upholding the county' commissioners' authority to re- serve the mineral rights when sell- ing land acquired by tax sale was signed in district court here Mon- day by Judge Dale E. Shannon. The decree was entered in a suit brought by Frank Farnik of Fort Morgan against the Weld county commissioners, Amerada Petrole- um Corp. and Durland Trust Co. Farnik sought In the suit to have the county's claims to the mineral rights in and under a half section of land he purchased at auction from the county in 1943 held in- valid. The half section, the ES of sec- tion 35-T7N-R59W in eastern Weld county near the Morgan county line, is the location of Amerada's Weld County No. 1 oil well, which was brought in in 1955, and the landowner's royalty pay m eats fran that well were involved in the suit. County Attorney Robert G. Sydth, who argued the case be- ittea the court Monday, reported the Pure Oil Co. had advised him in a letter that the amount of royalties which had accrued to the lydowner's account through Au- test of this year totaled $32,233.54. This was an increase of over 01,400 in accrued royalties since the'Company's last report on April l 1957, when the total was $25,- 827.61. Under Monday's decree, Weld county is entitled to these royalties. However, the case is ex- pected to be appealed to the State Supreme Court if a new trial is denied. In the decree, Judge Shannon held Weld county is the owner in ,fee simple absolute of all oil, gas I and other minerals in and under the half section and of the right to prospect for and remove the oil,j gas or minerals, subject only to al lease granted by the county and assigned to Amerada. The decree also held.that Farnik is the owner in fee simple abso- lute of all the surface rights to'. the half section, subject only to Weld county's rights. Judge Shannon stated Weld county is entitled to all rentals, royalties and proceeds of and from any oil, gas or minerals in or pro- duced from the half section. The defendants were awarded a judgment for their court costs in the case and the plaintiff given 20 days to file a motion for a new trial- tS NO. 18593 IN THE SUPREME COURT OF THE STATE OF COLORADO FRANK FARNIK, ) Error to the District Court Plaintiff in Error, ) of the County of Weld vs. ) State of Colorado ) THE BOARD OF ) COUNTY COMMIS- ) SIONERS OF THE ) COUNTY OF WELD, ) HONORABLE COLORADO, AMERA- ) DALE E. SHANNON, DA PETROLEUM ) Judge CORPORATION, and ) THE DURLAND ) TRUST COMPANY ) Defendants in Error. ) BRIEF OF DEFENDANT IN ERROR, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD, COLORADO Robert G. Smith 319, First National Bank Bldg. Greeley, Colorado Attorney for the Defendant, the Board of County Commission- ers of the County of Weld, Colorado I SUBJECT INDEX PAGE I STATEMENT 1 II ARGUMENT 3 III UNDER ITS GENERAL POWERS 4 THE BOARD OF COUNTY COM- MISSIONERS HAD FULL POWERS TO DEAL WITH COUNTY LANDS IV THE VALIDATING ACT OF 1949 9 REMOVED ALL POSIBLE DOUBTS V "THE REVENUE AND TAXATION . . . .14 STATUTES" VI CRS '53, 137-10-43 IS ONLY 16 PERTINENT STATUTE VII ESTOPPEL BY DEED 48 VIII COUNSEL'S ARGUMENTS AND 53 CITATIONS ON PAGES 40 THROUGH 57 DO NOT SUPPORT PLAINTIFF IX IF THE RESERVATIONS IN 63 PLAINTIFF'S DEED IS NOT EFFEC- TIVE, HIS DEED IS WHOLLY VOID X NEITHER THE KOPPLIN CASE 67 NOR THE BURKE CASE APPLIES XI CONCLUSIONS 76 I 13 TABLE OF CASES PAGE BARON v. SUFFOLK COUNTY, 1956 , 52 156 N.Y.S. 2d 43 BOWLES v. MILLER et al. , 1935 . . . . . . 57 96 Colo. 145 40 P. (2d) 243 BROWN et ux. V. ULMER et al. Ks 1922 49 204 P. 1007, 1008 . BURKE v. SOUTHERN PACIFIC RAIL-. .47, 72 ROAD COMPANY 1913 234 US 669; 34 Sup. Ct. 907; 58 L. Ed. 1527 CARY v. MORTON CO. N.D . 1929 54 223 N.W. 928 CRONK v. SHOUP as GOVERNER. . . . . . 65 ETC, et al. 1921 70 Colo. 71 197 P. 756 DRISCOLL et al. v. STATE OF COLO. . 13, 57 ETC. et al. 1931 88 Colo. 390 297 P. 989 FOX et al. v. WINDES 49 30 S.W. 323, 325 GREENE et al. v. WHITE et al . 50 Tex 1941, 153 S.W. 2d 575, 583 II GUNNISON, COUNTY OF, et al. v. . . 6 DAVIS ° 27 CA 501, Syl. 1; 150 P. 234 GUNTER et a1. v. WALPOLE . . .12, 62-65, 74 et al. , 1918; 65 Colo. 234; 176 P. 290 HAYMAKER et al, v. WINDSOR RE- 75 SERVOIR AND CANAL CO et al 1927 81 Colo. 168 254 Pac. 768 KERSHAW v. BURLEIGH COUNTY 68 N.D . 1951 47 N.W. 2d. 132 KOPPLIN v. BURLEIGH COUNTY 1951 68 47 N.W. 2d. 137 LIGGETT v. BOARD OF COUNTY COM- . . . .6 MISSIONERS OF KIOWA COUNTY 6 C .A . 269, 273 40 P. 475 MILLER et al. v. LIMON NATIONAL . . 13, 57 BANK, 1931 88 Colo. 373 296 P. 796 MITCHELL et al. v. ESPINOSA et al.. . . 9, 26 1952, 125 Colo. 267 243 P. 2d 412 PEDERSON v. FEDERAL LAND BANK. .34, 70 OF ST . PAUL N.D. 1955 72 N.W. 2d 227 III PROBASCO SR . v. SIKES et al, . . . 17, 26, 31 and SOHIO PETROLEUM COR- PORATION and THE BOARD OF COUNTY COMMISSIONERS OF ALBANY COUNTY, WYO. ----Wyo• ----1957 307 P. 2d 817 RUSSELL v. TEXAS COMPANY 53 238 F. 2d. 636 SAGUACHE COUNTY v. TOUGH 1909 6 45 Colo. 395, 398, 101 P. 411 SHEELY v. PEOPLE 7 54 Colo. 136, 139-140 129 P. 201 THORNHILL et al. v. FORD . . . 18, 26, 39, 74 Miss. 1952 56 So. 2d 23 1 Oil and Gas Reporter 70 UNION PACIFIC RAILROAD CO. v 9 HANNA, ASSESSOR, et al. 73 Colo. 162, 167 214 P. 550 WALKER v. BERGBIGLER Pa. 1904. . . 27, 53 56 A. 963 WALPOLE v. STATE BOARD . . 12, 62, 63, 74 OF LAND COMMISSIONERS 62 Colo. 554 163 P. 848 WEIR v. TEXAS COMPANY 52 180 F. 2d. 465 IV STATUTES CITED PAGE L's 1935, Ch, 217 31 35 C .S.A Ch. 142 Sec, 234 15 CRS '53 35-3-11 36-1-1 (3) (4) 5 8 30 36-1-2 5, 30 36-1-3 5 36-1-7 (1) 6 30 36-11-7 (5) 6, 30 36-11-4 10, 11 36-11-5 9 58 137-10-1, 2, 6, 8, 15, 17, 31 20, 28, 29, 35, 37 137-10-35 27 69 137-10-37 22 29 137-10-42 15, 16, 18, 31, 32, 65, 67 137-10-43 (2) 18, 21, 26, 27, 28, 31, 58, 69 TEXTS CITED PAGE 85 C .J.S . 838 (n37), 187 30 21 C .J. 1095 48 31 C .J.S . 218 48 HINKLEY OPINION 55 V NO. 18593 IN THE SUPREME COURT OF THE STATE OF COLORADO FRANK FARNIK, ) Error to the District Court Plaintiff in Error, ) of the County of Weld vs. ) State of Colorado THE BOARD OF ) COUNTY COMMIS- ) SIONERS OF THE ) COUNTY OF WELD, ) HONORABLE COLORADO, AMERA- ) DALE E. SHANNON, DA PETROLEUM ) Judge CORPORATION, and ) THE DURLAND ) TRUST COMPANY ) Defendants in Error. ) BRIEF OF DEFENDANT IN ERROR, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD, COLORADO I. STATEMENT Referring to the Brief of Plaintiff in Error, the Defendant in Error, The Board of County Commissioners of the County of Weld, Colo- 1 . redo, hereinafter referred to as Weld County or as the County. agrees that his designation of parties and his summary of the _Pleadings, Facts, Finding and Conclusions of Law, his sum- mary of what he said in his motion for new trial and his summary of his argument, (grouped tin- der paragraphs numbered I and II, pages 1-20 inclusive), are substantially accurate except as to any parts thereof hereinafter specifically men- tioned. All emphasis herein is supplied. We will refer to plaintiff in err or as byname or as plaintiff. As to his Argument and Conclusions (pages 19 through 75 of his brief), except as to his ad- missions in favor of the validity of the acts of the county in this case, we will attempt to show that there is no. statute, court decision orevt- dente in this case to sustain him. —Mr. Farnik refers to "the revenue and taxa- tion statutes" of Colorado. The term "Revenue and taxation statutes" so often used by Mr. Far- nik in his brief, covers much more law and many more statutes than are involved in this case. Had he limited his argument to the statutes which are pertinent and stated which of said statutes he meant to invoke, the task of answering wale have been much simplified. We think it well to point out., at the begin- ning that at the time of, -and long prior to- Mr. Farnik's first connection with this case in 1942, Weld County, had become the owner, in fee sim- le, of all property involved in this case, under TFeasurer's deed dated November 15, 1940; that its title to said property and to all thereof, was quieted by decree of the District Court,-of the Eighth Judicial District, entered on November 10, 1942, (ff. 288), and that its title was further reaffirmed by deed to it from The Durland Trust 2. Company, the former owner. Plaintiff has affirmatively pleaded, and all the parties hereto have affirmed, that the abso- lute, undisputed fee simple title to all of said land without reservation or exception➢ vested in Weld County, as owner in fee, on November 15, 1940. On November 22, 1943 Weld County sold said land to plaintiff and by and in its deed of conveyance excepted and reserved to itself all oil, gas'; and other minerals therein. ARGUMENT Plaintiff on page 21 of his brief under this heading, in effect, states that the "basic issue" is whether the County had authority to issue the deed in question. The primary question is; Did the County have the power to issue the deed in question and to except from its grant thereunder and to reserve to itself, as it did the minerals in and under the surface ? However, the issues are not so lim- ited. Further and important questions, raised by the County, are If, at the time of this sale it could be held that the County did not have authority to convey the surface estate in said lands and by its deed to except the minerals and to retain same to it- self, did not the 1949 statute, C .R.S . 153, 36- 11-1 validate said deed?; and further, If it should be held that the County had no such authority, and that its deed, including such exception, was not validated by said statute, then had it not violated the mandate of the statute so that its deed to Farnik is void for all purposes, with the result that the entire fee in the lands in question, and in the minerals, is still vested in Weld County? 3. There is the additional question, When plain- tiff bid, bargained for, obtained and accepted the deed in question here, on which he relies and bases all of his claim, is he not bound and estopped by that deed to make any claim in con- traction of its terms, for anything in addition to the grant as limited by that deed ? Weld County has taken the position that the deed to Farnik and the exception and reserva- tion of the minerals to the County therein are both good, and that even if the original excep- tion and reservation was not valid when made, such exception and retention of the minerals by the county was ratified and confirmed by said statute, but that if it should be said that we are wrong as to either position, then, and in that event, the action of its board of county commis- sioners and of its commissioner to convey is wholly without authority, Farnik's deed is void and nothing passed under said deed and the Coun- ty is still vested with the entire absolute fee ti- tle to both the surface rights and the minerals is said land. The county further contends, that there is here a clear estoppel by deed and that Mr. Far- nik, if he takes anything, is bound by the terms of his deed and may not question the validity of its exception. 31I UNDER ITS GENERAL POWERS THE BOARD OF COUNTY COMMISSIONERS HAD FULL POWER TO DEAL WITH COUNTY LANDS. No Colorado statute relating to counties, coun- ty business and the powers of County Commis- sioners as to "revenue and taxation", limits or curtails the power and right of the County to sell and donvey the surface of the lands involved here- 4. in, reserving to itself the minerals in or under said land. On the contrary, such power is ex- pressly conferred.. Colorado Revised Statutes 1953 provide: "36-1-1 . Powers of counties. --Each organized county within the state shall be a body corporate and politic, and as such shall be empowered for the follow- ing purposes: "(3) To sell and convey any real or personal estate owned by the county, and make such order respecting the same as may be deemed coxdudive 'to'the 'inter- eats, of the inhabitants." "(4) To make all contracts, and do all other acts in relation to the property and concerns necessary to the exercise of its corporate or administrative pow- ers." "36-1-2. Property of county. --Any real or personal estate heretofore, or which may be hereafter, conveyed to any county, shall be deemed the property of such county. " "36-1-3. Commissioners to exercise powers of county. --The powers of a coun- ty as a body politic and corporate shall be exercised by a board of county com- missioners therefor. " "36-1-7. Powers of the board...--The board of county commissioners of each county shall have power at any meeting: "(1) To make such orders concern- ing the property belonging to the county 5. as they may deem expedient." "(5) To represent the county and have the cave of the county property and the management of the business and c once rnbs of the county, in all cases where no oth- er provisions are made by law. " • Our Supreme Court has held! "Under our scheme, the commission- ers are the governing body, and by stat- ute they are clothed with full authority to make all contracts which are essen- tial to the management of the county°s affairs. The status of counties as cor- porations has been the subject of consid- erable discussion, and while they are de- fined as quasi corporations, it is always conceded that as such they have to the extent of the powers which are conferred upon them, full authority to act and to contract as may corporations generally, Stermer vo Board of Commissioners of La Plata County, 5 Colo, App, 379," Liggett v. Kiowa County, 6 C .A. 269, 273, "In this state all county business, not otherwise specially provided for, is un- der the control of aboard of county com- missioners. " Saguache County v, Tough, 45 Colo. 395, 398. "1 , COUNTY COMMISSIONERS-Pow- ers. Within the scope of their powers the Board of County Commissioners are supreme. They cannot be superseded, nor can their acts be judicially controlled or reviewed, except for an excess of jur- isdiction or abuse of discretion. (506, 6. 507)" Gunnison County v. Davis, 27 C .A . 501, Syl. 1. "The commissioners are the agents of the county. When they act it is the county acting through them. Whatever they do is in the management and admin- istration of the affairs of the county. . . . They, in effect, ascertain facts and em- ploy their discretion largely in their own cases and determine them similar to the way any business man will do in the man- agement of his own affairs "County Commissioners represent their county and have charge of its pro- perty and the management of its business concerns. Their duties are to adminis- ter the affairs of their county, and in that behalf to exercise such power as is ex- pressly conferred upon them by the con- stitution and the statutes of the state, and such implied power as is reasonably necessary to the proper execution of the express power. --Roberts v. People, 9 Colo. 458; Marwin v. Boulder Co. , su- pra." Sheely v. The People, 54 Colo. 136, 139, 140, The right of each County Commissioner to employ his discretion "the way any business man will do in the management of his own business" stated in the Sheely case, supra, is made a duty for the performance of which his official bond is conditioned. "Bonds of county commissioners. --- Each county commissioner. . . . is here- by required to execute a bond, . . . . con- ditioned that he will faithfully and hon- 7. estly discharge the duties of his office as such county commissioner. , e , a , a and that he will at all times transact the bus- iness of such county economically, and to the best of his ability, for the best in- terest of such county." CRS '53, 35-3-11 , In 1949, the legislature, obviously to provide for non-drilling leases and unitization agree- ments, passed an Act which also provides cer- tain restrictions on the sale and leasing of oil, gas and other minerals, and refers to and rec- ognizes the fact that counties had the power to and prior to its enactment had made a practice of selling "any real estate acquired and owned by the County under the laws relating to taxation or otherwise", retaining"the oil, gas and other mineral rights. Section 1 of that act reads: "Oil and gas rights--reservation of-- sale. --In any sale of county lands made by any county acting through its board of county commissioners-a valid reserva- tion of oil and gas and other minerals in such lands may be made whenever in the opinion of the board of county commis- sioners-it shall be deemed to-be for the best interest of the county. Oil and gas and other mineral rights or any of them thus reserved by a county upon the sale of such real estate may be sold. . . . " CRS '53, 36-11-1. This section recognized and confirmed the power which the counties have had from the be- ginning and was introductory to the following pro- visions of that act authorizing non-drilling leases and unitization agreements, and provided for the first time some restrictions and regulations on the method of sale and leasing. 8. IF THERE COULD BE ANY DOUBT THAT PRIOR TO MAY 20, 1949, COUNTIES IN COLO- RADO UNDER THE FOREGOING GRANTS OF POWER HAD AUTHORITY TO RESERVE THE MINERAL RIGHTS IN THEIR DEEDS TO COUN- TY LAND, THAT DOUBT WAS REMOVED BY THE VALIDATING ACT OF MAY 20, 1949, WHICH SPECIFICALLY VALIDATED THE RE- SERVATIONS IN DEEDS EXECUTED PRIOR THERETO. The handling of tax property of the county has been considered by the legislature repeatedly since 1935. Real estate and the lands and pro- perty of the County are defined: "36-11-5. Definitions. --The terms 'real estate owned by a county' and 'coun- ty lands' are each defined, for all of the purposes of this article, to mean any real estate acquired and owned by a coun- ty under the laws relating to taxation or otherwise. . . " Mineral rights severed from the surface con- stitute real estate. "A mineral reservation is an interest in land, and is 'real estate' by the very terms of our statute. " Union Pacific Railroad Co. v. Hanna et al. , 73 Colo. 162, 167 Mitchell v. Espinosa, 125 Colo. 267, 276. The last amendment of CRS '53, 137-10-43, with reference to the sale of tax lands by the county, provides : 9. "137-10-44. Prior sales validated. -- All sales of such real estate made by the board of county commissioners of any county shall be deemed valid and such sales are hereby confirmed, if such sales were made at either public or private sale, whether made by deed issued by the county treasurer upon direction of the board of county commissioners or by deed issued bya duly appointed commis- sioner to convey upon direction of the board of county commissioners. " The statutes from time to time have had slightly varying provisions as to notice, publi- cation, who should execute deeds, etc. Obvi- ously inconsideration of that fact and to remove all possibility of question or uncertainty con- cerning title or authority, the legislature of Colorado (which has never expressed one word to the contrary from the enactment of the Gen- eral Laws of Colorado in 1877 to this date), as an affirmation of the power and authority of coun- ty commissioners to deal with county lands as in their discretion may seem to them best for the inhabitants of their respective counties, and as a ratification of their deeds, passed Session Laws of 1949, Chapter 140, Section 4 of which provides: "Prior agreements validated..--All reservations of oil and gas and other mineral rights and sales of previously reserved oil and gas and other mineral rights in county lands heretofore made or entered into by any county acting by its board of county commissioners and all leases of oil and gas or rights and all unit agreements relating to or dealing with oil and gas and containint provi- sions similar to those set forth in sec- tion 36-11-3, affecting county lands, 10. heretofore made or entered into by any county acting by its board of county com- missioners are hereby confirmed, vali- dated and declared to be legal and valid in all respects." CRS '53, 36-11-4. S .L. '49, 327. Such remedial acts are usually referred to as validating acts and are uniformly upheld as valid. They are retroactive as shown by the cases which considered sales of state land by the State Board of Land Commissioners. Prior to 1917, there was no law authorizing the State Board of Land Commissioners to re- serve oil, gas and other minerals in deeds cov- ering state lands. The statutes expressly re- quired the State Land Board inits deeds to such lands to convey the same in fee. The Land Board had no discretion. In 1917 and again in 1919, the Legislature passed Acts, expressly author- izing the State Board of Land Commissioners to reserve oil, gas and other minerals in deeds covering such state lands. This Act now found as CRS '53, 112-3-26, also contains a validating provision which validated reservations in deeds made by the State Board of Land Commissioners prior thereto, just as CRS '53, 36-11-4, for the purpose of allaying doubts and, although (in our opinion) it was not necessary, validated reser- vations and exceptions in County deeds. There are several Colorado Supreme Court cases relating to the power of the State Board of Land Commissioners to make such mineral re- servations, decided both before and after the a- doptionof the act (CRS '53, 112-3-Z6) which val- idated such reservations by the State Land Board. They apply directly to the question here and show that, even if it could be said that prior to the validating act of 1949, the reservations here in- 11. volved were not authorized, under that act they became fully effective and valid. The first of such cases to which we would direct attention is Walpole v. State Board of Land Commissioners, 62 Colo. 554, 163 Pac. 848 (1917). At the time of this decision, the statute au- thorized the State Board of Land Commission- ers to sell land, but expressly stated that all such sales must be "in fee". These words "in fee" are not found anywhere in the statute au- thorizing the Board of County Commissioners to sell county lands. There is no such restric- tion. In this the first Walpole case, the State Board had advertised the land for sale under a form of notice stating that the mineral rights were to be reserved. Walpole purchased at the sale and secured a certificate of purchase. Thereafter the Board issued a mining lease to a third per- son and Walpole brought his action to enjoin the mining lease operations on the ground that the Board had no right to reserve the mineral rights. Our Supreme Court held that the only power of the State Board of Land Commissioners had, in view of the then controlling statute which pro- vided for sales only in fee, was to sell the land "in fee" and that a sale with the mineral reser- vation was not a sale "in fee" and as it did not comply with the mandate of the statute, was un- authorized. That case:was followed by Gunter v. Walpole, 65 Colo. 234; 176 p. 290 (1918). Apparently considering that he had won the first Walpole case, Walpole brought this second case by way of mandamus to force the State Board of Land Commissioners to issue to him a patent with the mineral reservation eliminated. He last this case. The Supreme Court held thatwhat he con- 12. tracted for was a title with the mineral reserva- tion. There being no power in the Board to make such a mineral reservation the Supreme Court held that the contract with Walpole was void and he was not entitled to any patent. Then came the Act authorizing the State Board to reserve minerals in deeds to state lands and validating reservations previously made. The following decisions relate to this validating act. Miller, et al. , v. Limon National Bank (1931), 88 Colo. 373, 296 Pac. 796 In this case it appeared that, prior to adop- tion of the validating act, land had been pur- chased under contract and certificate of pur- chase issued containing the mineral reservation. For some considerable time after passage of the validating act, installment payments were made on the purchase price, but payments were stopped and the Board cancelled the contract. There- upon, the bank demanded repayment of the part of the purchase price paid, upon the theory that the contract was void from the beginning. (That was in line with the holding of Gunter v. Wal- pole, supra, under the prior statute. ) The Su- preme Court denied relief. It sustained the val- idating act as being constitutional as against the retrospective provision of the state constitution. It holds that even though the reservation made by the State Land Board as agent of the state was invalid when made because the statute pro- vided for sales in fee only, the state had the right by subsequent legislation to ratify and val- idate the previously unauthorized act of its agent and that as so validated the contract made with the purchaser was binding upon that purchaser. Driscoll v. State Board of Land Commissioners, etc. , (1931), 88 Colo. 390; 297 Pac. 989. 13. In this case the sale containing the mineral reservations was made prior to the adoption of the validating act. After the adoption of that act the Board brought suit to enjoin the Driscolls from interfering with the reserved mineral es- tate and the right of the state mineral lessee. The Driscolls, by answer and cross-complaint, claimed title in fee simple and demanded that the same be quieted in them. The Court again sustained the validating act and held that Dris- colls were not entitled to patent without mineral reservations. Bowles v. Miller, et al. , (1935), 96 Colo. 145. This is another case where prior to the val- idating act, the State Board of Land Commis- sioners had issued a certificate of purchase con- taining mineral reservations. The purchaser, or the assignee of the purchaser, prior to the institution of the suit, had abandoned the land and then brought this suit to recover the part of the purchase price paid, upon the theory that the reservation was void in the beginning--(again in line with the Gunter case). This Court again denied relief, holding that the mistake was a mistake of law and not a mistake of fact which would not afford basis of recovery. These decisions by our own Supreme Court, conclusively show that the 1949 validating sta- tute is good, applies in case, and the reserva- tion of minerals in the deed from Weld County to Farnik is validated, even if there could be any doubt of validity when made. 2 "THE REVENUE AND TAXATION STATUTES" Referring now more particularly to plain- 14. tiff's brief, we note that, beginning with the next to last paragraph on page 23 through the quota- tion ending on page 28, he deals entirely with statutory proceedings governing treasurers' tax sales for the foreclosure of the tax lien held by counties. Such foreclosure, so far as this case is concerned, ended November 15, 1940, when the Treasurer issued his deed to Weld County and as admitted by plaintiff the County succeed- ed to the complete, absolute fee ownership of all of said section thirty-five. The essential difference between the proce- dure to foreclose tax liens ending in tax sales by the Treasurer, and the sale of such lands by the County after it becomes the owner of such lands, is that until the completion of the fore- closure procedure ending with 137-10-42, the County held only a tax lien to be foreclosed at tax sale and tax deed by its tax collector, the Treasurer. Thereafter the County's lien having ripened into title, the County, as here, became the owner inTee of such lands and all sales thereof are made by the County Commissioners. Neither '35 CSA, Ch. 142, Sec. 234 (137-10- 8), relating to the conducting tax sales for de- linquent taxes (page 25), nor 137-10-42, rela- ting to the disposition of tax sale certificates held by the County for sales of lands struck off to it for such taxes (page 26), nor 137-10-35, prescribing the form of deed issued by the coun- ty treasurer in his official capacity on tax sales certificates (33 and 34), nor 137-10-37, defin- ing the effect of and evidenciary presumptions arising from a treasurer's deed issued by the treasurer in his official capacity (p. 36-37), have any connection with or relevancy to the contro- versy or legal questions involved in this case. They relate only to tax lien foreclosures :and proceedings prior and leading up to the vesting of the title in the County. Any sound reasonwhy 15. Mr. Farnik should cite them and mix and con- fuse them with the pertinent Sec. 137-10-43 es- capes us. CRS '53, 137-10-42 provides for the issuance of tax deeds to counties, based on tax sales where property has been struck off to the county. Since all parties hereto admit that that section and all other sections of the statutes relating to tax sale foreclosures and treasurer's deeds was fully observed and complied with strictly, and that since November 15, 1940, Weld County owned all of the property involved herein in fee with- out question, exception or reservation, this sec- tion (and alrof the other sections) which relates only to the procedure for the prior acquisition of that title by the County, can have no applica- tion here. It and they are functus officio. vs CRS '53, 137-10-43 IS THE ONLY SECTION OF THE "REVENUE AND TAXATION STAT- UTES" WHICH HAS ANY DIRECT BEARING ON OR RELATION TO THIS CASE . Plaintiff has quoted said pertinent statute on pages 28-33 of his brief. No question has been raised as to the validity of all proceedings lead- ing to the sale here involved or to the validity of said sale in any respect. Plaintiff's position in this case is and must be--and he has admitted, does and must admit, -- and the fact is that eve- ry provision thereof was complied with and fol- lowed exactly, and that the sale at which Farnik purchased was proper and legal Mall respects, except, of course, he says that the exception of the minerals and their retention by the' county by and in its deed to Farnik was unauthorized. Mr. Farnik has based his whole claim on that sale and the deed issued pursuant thereto. Thereby • he affirms and asserts it validity. Otherwise the deed would be void and his claim, even as to the surface rights, would of necessity fail. 16. As far as we have been able toascertain, the contentions made by plaintiff herein have never been raised before in a Colorado Court and cer- tainly have never been upheld by our Supreme Court, or any other Court so far as any of cowl- ' sel herein have been able to find. On February 26, 1957, the SUPREME COURT OF WYOMING handed down a decision in a case which involved the exact question involved here. That case upheld the right of the Board of Coun- ty Commissioners of Albany County, Wyoming, to do exactly what the Board of County Commis- sioners of Weld County did in this case. It in- volves statutes which are identical in effect as to Treasurer's deeds to the County, and statutes authorizing conveyances by County Commission- ers which are verbatim copies of our section CRS '53, 36-1-1 , (3,4). The case is Morgan C. PROBASCO, SR., Plaintiff Appellant, vs. Ella M. Sikes, et al. , Defend- ants, and ' Sohio Petroleum Company, an Ohio corpora- tion and The Board of County Commissioners of Albany County, Wyoming, Defend- ants and Respondants. 307 P. 2d 817, --Wyoming--. That case supports the claim of power and authority by the Board of County Commission- ers to divide county lands and convey the same in any such lots or parcels as the board in its discretion may decide, or to sell some and re- tain some, or to sell the surface and retain the minerals thereunder, and indicates clearly that such power and authority has existed from the beginning under the statutory grant of general powers to counties cited above. We shall quote that case in some detail later on in this brief. 17. Thornhill vs. Ford, a 1952 Mississippi case, also is in point and will be discussed later. CRS '53, 137-10-43 is the section which de- tails the procedure for sale. It specifically pro- vides for the rental or sale of tax title lands acquired and held by the county, Subdivision (2) states "The board of county commissioners shall have the power to rent, lease or sell such property so acquired as pro- vided hereinafter in this section. " There is nothing "hereinafter provided" in said section which in any manner would or could militate against the validity of the sale in ques- tion, or restrict the right of the board of county commissioners to do exactly what it did do. The laws of 1935 (1935 CSA. Chapter 142, Section 211, now CRS '53, 137-10-42) provide for the issuance of deeds by the County Treas- urer to the County, and provide further: "After the county shall have received a tax deed to any real estate, the county commissioners may offer such real es- tate for sale at publicauctionwithinnine - ty (90) days after receiving tax deed to such real estate upon notice by adver- tisement once each week for at least four (4) successive weeks in a newspaper of general circulationin which the property is situated. All such notices shall re- serve the right on the part of the board of county commissioners to reject any or all bids. Such real estate may be sold in such lots or parcels and upon such terms of payment as the board of county commissioners shall deem best, but no deed shall be issued until the purchaser 18. shall have made payment in full and such deed when issued shall be without cove- nants of warranty. Such deeds shall be issued by the coun- ty treasurer upon the direction of the said board of county commissioners. The proceeds of any such sale shall first be applied to the payment of all unpaid taxes accrued against the property up to the time the tax deed was issued to the coun- ty, as provided in the last proceding sec- tion, and any remaining avails of the sale shall be credited to the ordinary county revenue fund of the county. " CRS '53, 137-10-45. Under these sections of the statute, counties started taking deeds. This statute provided the first restriction on the right to sell county land as shown by the underlined portions thereof. The laws of 1941 and 1943, codified as '35 CSA Ch. 142, Sec. 211 (1), made minor changes in the procedure relating to the taking of deeds and put the sale procedure into CSA Chapter 142, Section 211 (1) with some further details i. e. , the 90 day period after acquiring deed, before making sale was removed, and the details of publication of notice were changed. Sales still had to be made by the board of county commissioners although the deeds were still to be issued by the treasurer, upon the di- rection of the board of county commissioners. Instead of saying as in the 1935 Act, "the county commissioners may offer such real es- tate for sale within 90 days," the 1941 Act said: "(b) Power of county commissioners to rent or sell. --The board of county 19. commissioners shall have the power to rent, lease or sell such property so ac- quired as hereinafter provided." Public sale after notice was still required, and also notices still must reserve the right to reject any and all bids which are less than the appraised value first provided for by this act. The sale may be made only at public auction, whenand if the board receives a bid for any lots or parcels which in the discretion of the board is a sufficient purchase price, and such real es- tate may be sold in such lots or parcels and up- on such terms as the board of county commis- sioners shall deem acceptable. The commis- sioners are required, upon application and de- posit of costs, to offer for sale the property re- quested to be sold. And the board may, in its discretion, decline and refuse to offer for sale any lots or parcels as may be necessary or use- ful for ordinary functions of county government. Under said section, deeds were still to be issued by the county treasurer upon the direc- tion of the board, without covenants of warran- ty. The provisions of said Section 211 (CSA Ch. 142) were amplified by the Laws of 1941 to in- clude proceeds from leases or other disposi- tions of property and appears separately as Sec. 211 (2). Said chapter then remained without change until subsection (e) of Secion 2 of said Chapter 192 of said Laws of 1941 was again a- mended by the Laws of 1951 soas toprovide that such county deed "shall be issued by a" Com- missioner to convey, duly appointed by the Board of County Commissioners, which Commissioner shall act upon the direction of the Board of Com- missioners, "provided that such deed or deeds shall be issued without covenants of warrant." 29. Said sales made by the county, whether public or private, and whether by deeds issued by the county treasurer upon direction of the board of county commissioners, or by a duly appointed commissioner to convey upon direction of the board, were sales by the county and were de- clared valid and were confirmed. CRS 137-10-44. Certain minor details were prescribed and certain additional powers were granted but there is no act of the legislature of Colorado in re- spect to any action taken or involved in this case which ever, even by implication took away or, restricted the power of boards of county com- missioners originally conferred by CRS '53, 36- 1-1, (3) and (4) and by 36-1-7, (1) and(5), supra. The sale at which Mr. Farnik purchased was legally and properly held. That plaintiff admits and he may not contend otherwise because what- ever title he has, if any, he got through said sale and under the deed exhibit "A" attached to complaint herein. (Exh. 6, f. 289) CRS '53, 137-10-43 was not passed until 1935. It has been given lengthy attention to both coun- sel for Mr. Farnik and counsel for Weld Coun- ty. As applied to this case, it says only that (1) The board of county commissioners has the pow- er to sell its tax lands at public sale. . . . when and if the board receives a bid for any lots or parcels which, in the discretion of the board of county commissioners, is a sufficient purchase price. . and such lands may be sold in such lots or parcels and upon such terms of payment as the board may deem acceptable, but no deed shall be issued until after payment infull. Also, that statute directs that upon writtenapplication of any person, the board shall offer for sale the 21 . property requested by such person to be sold, except that no parcel may be divided unless the board specifically permits. Such deed shall be issued by a commissioner to convey (formerly by the treasurer), duly ap • - pointed by the board, which commissioner shall act upon the direction of the board, without cov- enants of warranty. Even Mr. Farnik's counsel admits that if there is any restriction or limitation on the pow- er of the county to sell its tax lands, it must be found in the above section (137-10-43). None appears. We had the public sale, on a bid for the said El /2 of Section 35, without the oil, gas or other minerals (Defendant's Exhibit 1-A, f. 278). The County had decided (Exhibit 1-C, f. 280) to sell all of said lands in such lots or parcels on terms that were acceptable, and payment was made in full. The County was required by the statute upon the written application of "any person" (Farnik) to offer for sale "the property requested to be sold", to-wit, the surface estate in said E1/2 of said Section 35. Farnik, though he bid for only the surface, now says the parcel, as acquired by the county, (said El /2 of Sec. 35, T. 7, R. 59) couldnot be divided. The statute says that such parcels may not be divided for the purpose of such requested sale unless the board permits same. The con- verse necessarily follows that such lots or par- cels may be divided whenever the board of coun- ty commissioners does so permit. Farnik, by his bid, specifically requested the division, and the Board did so specifically permit. 22. Plaintiff, having admitted full compliance by the Treasurer with all foreclosure procedures and having admitted the validity of the treasur- er's tax deed to the County and the fee title of the County thereunder and having admitted the full compliance with all procedure for the sale by the County of its tax lands, and the validity of such sale, brings himself back, in spite of the circumlocution, to the primary question in the case, "Did the County violate any statute which prohibited it from doing so, when it sold to plaintiff the surface estate in said lands with- out the minerals thereunder, in accordance with his own request in writing, under the statute ?" There is none. Mr. Farnik's counsel admits on page 33 of his brief, that there is "only one form of deed to be executed under the entire article on rev- enue and taxation." He even points out that this is the form for a treasurer's deed, tax title deed, prescribed by statute in 1902, (last amended in 1905, 137-10-35, ) just thirty-three (33) years before there was any provision for the taking of title by the county under such deeds, or the sale by the county of such lands so acquired. He says, "It is called a tax deed and 'these stat- utes' direct its execution by the County Treas- urer." The statutes say such deed shall be issued by the treasurer in his official capacity." (137- 10-37). It is hardly conceivable that the legislature in 1902 and in 1905 could have intended to pre- scribe a form for the conveyance by the county of lands which then it could neither own nor con- vey. True indeed, no form of deed for the sale of tax lands owned by the county is prescribed. The only direction is that county lands so sold shall be sold by the county and conveyed by the county by its treasurer or by its commissioner to convey under the direction of the board of 23. county commissioners. There is no prescrip- tion as to the form or substance of such deed except that it shall be issued "without covenants of warranty." Plaintiff has committed himself to the position and admissions above stated. His only possible question here then is whether the exception of the minerals in the county's deed is prohibited by statutes. It is bootless to discuss further the statutes under which the title to these lands ripened into fee simple in the county, or the evidentiary ef- fect of deeds issued by the treasurer at tax sales, (Pg. 34 and 371 because Plaintiff and all other parties hereto have admitted, affirmatively pleaded and emphasized that the treasurer's deed was issued and that it conveyed the lee sim- ple title and vested all the right title and interest of the former owner in the county, as do all deeds on foreclosure, convey the entire interest of the lienee. • At page 35 of his brief, Counsel purports to "summarize" the statutes. His statement in his paragraph 3 that the "commissioners shall have no right to reject any bid on such "resale" unless it is for less than the appraised value of such real estate. . .", while it is wholly immaterial (under the evi- dence), is not factual. The statute says (as to notices of sale) "such notices shall reserve the right. . . to reject any and all bids which are less " and continues expressly to au- thorize the board to sell "when and if the board of county commissioners receives a bid which in the discretion of the board of county com- missioners is a sufficient purchase price. . . . . The statements of paragraph 4 on the same 24. page attempt to warp the plain meaning of the statute, The County Commissioners, under the statutes and decisions of Colorado, heretofore cited, were given power to handle all business of the County except as to certain matters not here involved. By those statutes, the State of Colorado delegated to the County the full power of the State in relation to the control and hand- ling of county property. That power once given continues unimpaired until and unless some stat- uteispassed which specifically by its terms re- stricts or withdraws the same. None has been or can be cited. No repeal, restriction or im- pairment can ever be raised by implication. Sections 137-10- 42, 43 do set out certainpro- cedures. They do not and do not purport to re- strict or withdraw any of the general power which the Countyhas had from the beginning. Rather, those statutes, as noted, granted additional pow- ers. Counsel's statement that there is no pro- vision "permitting minerals to be reserved or excepted" is an evasion. No specific "permis- sion" was needed. The County already had full power. The fact is, and counsel should admit, that nowhere in any statute or Court decision has that power been withdrawn or limited or re- stricted. The power to permit division is the power to divide, (especially when requested) . The same and more goes for his statement (P. 35) that the statute does "not" grant the right to separate. . . .". The statute says, and coun- sel has quoted it at least twice, "Such real es- tate may be sold in such lots or parcels. . .and upon such terms of payment. . . as the -board or county commissioners shall deem acceptable. . " "Such real estate" counsel states means "the property received under tax deeds", but he quotes the definition of 36-11-5 (page 53) of "real es- tate owned by a county" and "county lands" to 25. mean "any real estate acquired and owned by a county under laws relating to taxation or other- wise." Minerals underneath the surface, separate from the surface, constitute "real estate". Mitchell v. Espinosa 88 Colo. 276. On page 50 plaintiff refers to the matter of leasing 137-10-43 (2 and 3). Can he possibly mean that if some rancher should lease for a period of five years a section of land because, like Farnik, he "needed pasture" (f. 299) that he would, by such pasture lease and by paying the norman nominal pasture rent, be entitled for five years to exploit all oil, gas and minerals under such section, even though the board of county commissioners expressly stipulated that the lease was for grazing only? That, of course, is foolish, but it closely parallels Farnik's claim here. Also the statute says, "Upon the written ap- lication of any person, the board of county com- missioners shall offer for sale the property re- quested by such person to be sold, except that no parcel shall be divided for the purpose of such requested sale unless the board of county commissioners specifically permits same. Therefore, this particular section gives the board the power to permit the division of any lot or parcel of the county's land for the purpose of such requested sale. Therefore, having power to permit division for the purpose of such re- quested sale, it has the power "in the discretion of the board" and if the board "shall deem ac- ceptable" to divide in any manner or position designated in the written application of any per- son. If it may divide vertically, it may divide horizontally. (Probasco v. Albany County, su- pra, and Thornhill v. Ford, supra) 26. In view of the fact that here we are dealing with the provisions of the only statute relating to the questions involved herein, 137-10-43 par- agraphs 5 and 6 of Mr. Farnik's summary (P. 35) are far from candid. The term "resale" has no place in our judicial or statutory langu- age and has no place in these briefs. Mr. Far- nik lifted it from his Walker v. Bergbigler case (Pg. 41, 42). By saying in 5 that the deed shall be issued by the County Treasurer, impliedly at least, he is trying to tie the treasurers° deed after tax sale into the county's deed on its sale of county lands. A treasurer's deed or tax deed issued in from and as prescribed in 137-10-35, has no relation whatever to the deed of the coun- ty required to be issued by the County under 137-10-43, where no form is required except that it shall be without covenants of warranty. Even a casual examination of pages 35 through 38, plaintiff's brief shows what seems to be a studied effort to scramble several of the sepa- rate and different "revenue and taxation" stat- utes into confusion, rather than an effort to ar- rive at the point of issue. Farnik's deed, issued December 7, 1943, (f. 289) reads: "Weld County, by Harold H. Seaman, its Commissioner appointed to execute this deed being the same person as Har- old H. Seaman, the duly qualified County Treasurer of Weld County, acting upon the direction of the Board of County Com- missioners and as County Treasurer, in executing this deed" and the "deed is made pursuant to resolution of the Board of Commissioners of Weld County, Colorado appointing Harold H. Seaman, Commissioner aforesaid, 27. to execute this deed on behalf of Weld County," and concludes "IN WITNESS WHEREOF, I, Harold H. Seaman, Commissioner appointed to execute this deed on behalf of said Coun- ty and by virtue of the authority contained in said order made by said Board of Coun- ty Commissioners on the 22nd day of Nov- ember, have hereunto set my hand and affixed the seal of said County this 7th day of December, 1943, for the uses and purposes therein set forth." S/ Harold H. Seaman (SEAL) Its Commissioner to execute this deed and as County Treasurer of Weld County" Both compilations of the statutes contain the same wording (CRS '53, 137-10-43) the Board of County Commis- sioners shall offer for sale the property requested by such person to be sold. .", and "no parcel shall be divided for the purpose of such requested sale unless the board of county commissioners spe- cifically permits same." Also in paragraph 3, page 35, of his brief, Mr. Farnik's counsel states that the Board shall have no right to reject any bid unless it is for less than the appraised value, fixed by the coun- ty assessor. Contrary to counsel's statement, the statute, while it says that the notice of sale "shall reserve the right to reject any and all such bids", further says (in both compilations) 28. "Such real estate may be sold at pub- lic sale when and if the Board of County Commissioners receives a bid for any lots or parcels which in the discretion of the board of county commissioners is a sufficient purchase price. " All of that is immaterial here. The Board had received a bid from Farnik which was for a specific lot or parcel, which was for more than the assessed value and which was, in the dis- cretion of the board, a sufficient purchase price, and the Board had consented to divide the par- cel, as Farnik had requested. (Exh. 1-C, f. 280) Farnik did not include any minerals in his bid and his deed conveyed none. Mr. Farnik's counsel consistently refuses to recognize the difference between the lien in- terest held by the treasurer as tax collector and the fee title held by the County under the treas- urer's deed given it at and as the culmination of the foreclosures of that lien interest. Mr. Farnik's argument under II (page 36) is entirely beside the point. Everyone here has pleaded or admitted that treasurer's deeds un- der 137-10-37 convey the interest of the former owner. Were this not true, some part of the title here would still be in Durland, but for its deed to the County. These tax foreclosure deeds --tax sale or treasurer's deed-- are signed by the treasurer in his official capacity. Plaintiff's conclusion on page 38 is not and cannot be supported. Under Section 137-10-37 the County did acquire all interests of Durland, the former owner. As to this case the six months limitation could benefit no one but Durland. That section has to do only with the foreclosure of 29. the lien by the Treasurer. It has nothing to do with the sale by the County of lands held in fee by the County. As to plaintiff's argument III (page 38), we have previously cited 36-1-1 (1) and (2) and 36- 1-7 (5) andSaguache County v. Tough. The stat- utes give, and the cases confirm, general pow- ers of the county. They are clear in spite of the labored attempt to warp their meaning and application here. They, and the statutes pro- viding for the issuance of deeds to the county on tax foreclosures, and the disposition of such lands, are in no way inconsistent. When the Treasurer's deed issues to the County, title vests in the County and thereafter the County does hold title thereto in its proprietory capa- city subject, of course, to the statutes providing for the disposition thereof. PROPRIETORY FUNCTION "In selling lands to which it obtained tax deed, the county performs a 'propri- etory", as distinguished from a 'govern- mental' function---State ex rel. Barn- hart v. Cranston, 120 P. 2d 828, 113 Mont. 61" 85 GJS Sec. 838, Note 37, Pg. 187 Counsel again refers on the same page to language under the general powers section (36- 1-7 (5) "where no other provisions are made by law". His trouble is that there are no other pro- visions limiting or restricting the right of the county to do exactly what it did in this case. The only "other provisions" are in aid and further- ance of the general powers already possessed. No citation is necessary to the proposition that where different statutes can be read togeth- 30. er, there can be no repeal or rejection of the one by the other, but both shall be construed to- gether. The general powers granted by the state of Colorado to its counties apply generally to every act of the county, unless and until those powers are later expressly (or by necessary im- plication) restricted or curtailed. The Colorado statutes, 2 RS '5371 are 0 2, 6, 8, 15, 17, 20, 28, 9, 35, and 37, strictly "foreclosure statutes". All go back to the statutes of the year 1902. The statute which controls this case was pass- ed in 1935 (CRS '53, 137-10-42 and 43; Ls. '35, Ch. 217) to remedy the situation with relation to certificates of purchase held by the County. It is a remedial statute. It operates only after all action under the collection or foreclosure statutes has been completed. These two groups of statutes correspond to the sections of the Wyoming statutes quoted by the Court in Probasco v. The Board of County Commissioners of Albany County- (Wyo. 307 P. (2d) 817, 819);__--Wyo. ----' The Wyoming statute provides: "At the tax sale each year any real estate that cannot be sold. . . . or on which no bids are offered, shall be bid in by the county treasurer who shall there- upon issue a certificate of purchase to said county." Our statute (137-10-8) says: 31 . "If there shall be no bid for any tract offered. . .it shall become his (the Treas- urer's) duty to strike off to the county. . . . the lands . . . . remaining unsold, . . . When the county treasurer has so struck off any tract of land or town lots, he shall issue to the county a certificate of purchase. . . ." These (in both states) are foreclosure stat- utes. The Wyoming statute provides (32-1703): "After such real estate has been bid in by said county, the county commis- sioners of said county shall have author- ity to dispose of the same at any time, at either public or private sale. . . .pro- vided that if said property has not been disposed of prior to the expiration of four (4) years after the date of sale to the county, the county treasurer shall issue a tax deed for said property to the coun- ty, which shall be recorded in the county clerk's office, and thereupon said board of county commissioners shall have au- thority to dispose of said property at pri- vate sale and cause a deed to be executed to the purchaser, signed by its chairman and clerk." Our statute (137-10-42) SAYS: "In all cases where the real estate has been struck off to the county at tax sales and the county has held the certi- ficate of sale for three years or more, the county commissioners may apply for and receive a tax deed in like manner as is provided by law in the case of delin- quent tax sale certificates held by indi- 32. viduals." This statute goes on to provide details for the issuance of the deed after the three year per- iod and likewise for periods of five and eight years. The result in both states is the same-- the property is conveyed by treasurer's deed to the county. These (in both states) are vesting statutes. The Supreme Court of Wyoming then says: "It is quite apparent that the first part of Sec. 32-1703, construed in the light of Sec. 32-1701, refers only to the sale of a certificate of purchase obtained by the county. It does not then have an ab- solute title. But after the county has held the certificate of title for four years and it has not been sold, then the county treasurer issues to the county an abso- lute deed, and the property itself is there- after sold by the county, not by a deed from the county treasurer but by a deed issued by the board of county commis- sioners and signed by its chairman and clerk. Sec. 32-1704, as it now stands, provides that the assignee of the county receives a title from the county treas- urer, as shown by the end of that sec- tion. That, at first blush, would seem to show confusion. But the matter be- comes clear when we find that we must distinguish between an assignee of a coun- ty and a grantee. An assignee acquires the certificate of purchase issued to the county. A rantee receives a deed is- sued by the oard of county commission- ers through its chairman and clerk, as clearly shown by the provisions of Sec. 32-1703. In the one case no deed has 33. been issued to the county, in the other the county has become the absolute owner by the issuance to it of a deed." In the Probasco case the plaintiff contended that as Farnik does here, that when he received the deed from the Board of County Commission- ers of Albany County he had the right to the whole of the property, including the mineral rights, and that the Board had no right to reserve them. After quoting the Wyoming statutes and mak- ing the statements above quoted the Court con- tinued to say among other things: "But the situation is changed when, after the expiration of four years, it re- ceives a deed from the treasurer. The statute prescribes no form of a deed to be executed by the chairman of the coun- ty board and its clerk. The form of deed prescribed for the county treasurer in 32-1624, W.C .S. 1945, does not apply. The form to be used is left wholly to the discretion of the board. When the deed to the county is executed, it takes a com- plete and absolute title. Pederson v. Federal Land Bank of St. Paul, N. D. , 72 N. W. 2d 227; Town of Remington v. Wood County, 238 Wis. 172, 298 N. W. 591 and other cases. "It is undoubtedly true that the "leg- islature may prescribe the manner in which county property may be sold, and such prescription must be complied with." 20 C.J.S . 172, p. 1004. But in the case at bar 32-1703, W.C .S . 1945, has not prescribed any manner or mode by which the property may be sold. The power conferred after the county obtains a deed is the broad permissive power to 34. sell the land without any limitations, re- strictions, or terms except that it men- tions private sale. So the question is whether or not the board of county com- missioners may adopt its own manner, method, terms, and conditions by and under which it may dispose of the proper- ty at such private sale." "Turning to the subject of "Officers" in 67 C .J.S., pp. 366, 368, 370, 371 , 372, 379, we find it stated: (quoting) "'Public officers have only such pow- er and authority as are clearly conferred by law or necessarily implied * * *."' "'In addition to powers expressly con- ferred on him by law, an officer has by implication such powers as are necessary for the due and efficient exercise of those expressly granted, or such as may be fairly implied therefrom."' "'A general grant of power, however, unaccompanied by definite directions as to how the power is to be exercises, im- plies the right to employ means and meth- ods necessary to comply with statutory requirements."' "* * * usually he (an officer) has im- plied authority to adopt such reasonable rules and regulations as are necessary to the due and efficient exercise of the powers expressly granted."' "'The grant of power to a public offi- cer carries with it a mandate that such power shall be exercised for the public good * * *."' (Italics supplied) • 35. j The Wyoming Court continued: "'In addition to the powers expressly conferred on a board or commission, it has by implication such powers as are necessary for the due and efficient ex- ercise of those expressly granted, or such as may be fairly implied there- from. "' "Bearing these rules in mind, can this court say that the broad power ex- pressly granted to the county was not ex- ercised efficiently for the public good? We hardly think so. A private party who has absolute title to a piece of property may sell it in such manner as he deems best. He may divide the property and sell such portions as to him seem pro- per; he may sell it by dividing it verti- cally or horizontally. What a private party may do is not an unfair criterion of what a county may do, in the absence of legislation to the contrary. In any e- vent it is far from clear that the board of county commissioners could not do just what it did do in the case at bar. And in case of serious doubt, such as at least exists in the case at bar, we should not, we think, usurp the function of the legislature, but await its action before declaring that the method, terms, and conditions adopted here were unlawful." "That the matter before us is a mat- ter for the legislature rather than the court is clearly borne out by Town of Remington v. Wood County, supra. In that case it was held that as to when the county should sell the land is a matter for the legislature and not for the court. In the case at bar part of the reason as- signed by appellant why the minerals should not be reserved is that the county 36. should sell the land so that it could be put on the tax rolls. Aside from that if the time of sale is a matter for the leg- islature, the manner and method of the sale must be also. The principle invol- ved is the same. In Town of Remington v. Wood County, 238 Wis. 172, 298 N. W. 591, 595, the court stated: (quoting) "'However persuasive the argument made by plaintiff maybe to the effect that good public policy requires that the coun- ty be obliged to make sale of the lands and account to the town, that argument presents a question for the legislature and not for the courts. * * * If the coun- ty board in the exercise of the discretion vested in it by the legislature abuses its discretion, that presents a matter not for the court but for the legislature which so far has placed no limitations upon the exercise by the county of the power con- ferred upon it."' The Wyoming Court continued: "Even assuming that express statutory permission must exist to reserve min- eral rights as was done in the case at bar, it is by no means clear that no such statutory authority exists. In Caldwell v. Kemper, 159 Fla. 231, 31 So. 2d 555, 557, trustees of an improvement fund were authorized to dispose of lands un- der such rules and regulations as may be adopted from time to time. It was held that the trustees under this power had the right to reserve mineral rights. The court stated: (quoting) "'Aside from these provisions, we think that part of the quoted section of Chapter 18296, Murphy Act, authorizing the Trustees of the Internal Improvement 37. Fund to sell the lands referred to there- in under 'such rules and regulations as * * * maybe fixed and adopted from time to time' by them affords simple author- ity for reserving oil and mineral rights in such deeds of sale. The State's title had ripened into a fee simple and there being no prohibition to the contrary, the additional powers vested in the Trus- tees of the Internal Improvement Fund certainly authorized them to impose such reservations as an individual could im- pose under like circumstances. We think the latitude given the Trustees of the Internal Improvement Fund in hand- ling and disposing of these lands forces this conclusion."' "'It follows that the reservations of oil and mineral rights in the deed exe- cuted by the Trustees of the Internal Im- provement Fund to H. A. McQuagge was good and binding and may be enforced * * 4, to The Wyoming Court continued: "Section 26-301, W.C .S . 1945, pro- vides that each county shall have the fol- lowing powers: "3. To sell or convey any real or per- sonal estate owned by the county, and make such order respecting the same as may be deemed conducive to the inter- ests of the inhabitants; "4. To make all contracts, and do all other acts in relation to the property and concerns (of the county) necessary to the exercise of its corporate or ad- ministrative powers. " "It would seem that these provisions are just as broad in scope as the provi- 38. sions contained in Caldwell v. Kemper, supra, and in the absence of some con- trary direction in the statute, would seem to apply to property acquired by tax sale. But see Blackford v. Judith Basin Coun- ty, 109 Mont. 578, 98 P. 2d 872, 126 A. L.R, 639. " "It follows accordingly that the plain- tiff did not acquire any mineral rights in and under the lots which he purchased from the county." The recent case of Thornhill et al. v. Ford 56 So. 2d 23 1 Oil and Gas Reporter 70 (Miss. 1952) supports the same conclusions of the Su- preme Court of Wyoming and the position of this defendant. It is well reasoned and well written. It also supports the alternate defenses pleaded by this defendant. "This suit presents a controversy a- bout the title to an undivided one-half in- terest in the oil, gas and other minerals in 40 acres of land in Marion County, Mississippi, and involves among other questions a construction of Section 6605 of the Mississippi Code of 1942, which among other things provided---the board of supervisors of the county are hereby authorized to sell, rent or lease said pro- perty or security, either at private or public sale, as the board of supervisors shall deem for the best interests of six- teenth section funds. ---- "The deed of such conveyance in such cases shall be executed in the name of the county, by the president of the board of supervisors, pursuant to an order of the board entered on its minutes. The pro- ceeds of all such sales, rents or leases shall be paid to the proper sixteenth sec- 39. tion funds from which the loan originated, and for which the security so sold was pledged." "Any real property, ----may be sold by said county to any person, including the original borrower on, or owner of, said property or security, for the value thereof, at the time of the sale by it men- tioned in this section, to be ascertained and determined by the board of super- visors, and said board may accept in payment----." "The litigation arises out of the fol- lowing facts: On March 5, 1923, Marion County loaned to L. L. Askew from its sixteenth section funds the sum of$1, 000, and accepted as security therefor a deed of trust executed by the said Askew on 320 acres of land which he owned in said county, including the land here involved. Default was made in the payment of the indebtedness and the deed of trust was foreclosed. The county became the pur- chaser at the foreclosure sale of the en- tire 320 acres at and for the sum of $1265, which was the highest bid for said pro- perty and less that the amount of the in- debtedness accrued, and pursuant to said sale the trustee conveyed the entire 320 acres to the county on April 18, 1940, and the county thereby became the owner of the entire property, to be held for the use of the sixteenth section funds from which the aforesaid loan was made." "On May 7, 1940, appellee applied in writing to the board of supervisors of Marion County to purchase 40 acres of the said 320 acres, being the 40 acres here involved----and offered to pay 40. therefor the sum of $100. 00 cash. This application was filed at the May, 1940 meeting of the board and no action was taken thereon at said meeting but at said meeting the- board adopted and entered on its minutes a general order declaring it to be to the best interest of the sixteen- th section funds that no sixteenth section lands, lieu lands, or sixteenth section securities, be sold, conveyed, or leased without reserving) and retaining an un- divided one-half interest in the oil, gas and other minerals therein, and order- ing such course to be followed in the fu- ture." "----Accordingly, at the same meet- ing of the board, an order was adopted and entered on the minutes, reciting that the committee had reported that the offer of $100. 00 cash for the land, the county retaining one-half of the oil, gas and oth- er minerals therein, was a fair and rea- sonable offer, and finding and determin- ing said sum to be a fair and reasonable price, and authorizing and directing the sale and conveyance of the land to appel- lee, retaining in the county an undivided one-half interest in the oil, gas and oth- er minerals, and finding and determining that it was to the interest of the sixteenth section funds so to do. Pursuant to said order, and on June 13, 1940, a proper deed was executed by the president of the board in the name of the county, sell- ing and conveying to appellee, H. G. Ford, in consideration of the sum of $100 cash, "the lands now held in the name of Marion County, Mississippi, for the use and benefit of the sixteenth section funds thereof and specifically described as fol- lows to-wit:----and an undivided one- 41 . half interest in all oil, gas and/or other minerals on and under said lands above conveyed." Incorporated in the deed al- so was the following: "It being specifi- cally understood and agreed that Marion County retains an undivided one-half in- terest in all oil; gas and/or minerals on or under said lands and the necessary rights of ingress, egress, and regress "On November 1 , 1943, the county executed an oil, gas and mineral lease- --on an undivided one-half interest in the minerals in the entire 320 acres." "On October 7, 1944, the county, by separate conveyance, sold and conveyed to C. L. Thornhill an-undivided one- fourth interest in the minerals in 160 acres of the total 320 acres and an un- divided one-fourth interest in the min- erals in the remaining 160 acres of the total 320 acres----." "On March 1, 1947, appellee filed his bill against the appellants in the Chan- cery Court of Marion County, claiming that the county attempted in its deed to appellee to reserve an undivided one- half interest in the minerals and that this attempted reservation was without au- thority of law and was void, and that by virtue of his deed from the county he ac- quired title to the land and all of the min- erals in the land. He prayed that all of the instruments by which appellants claimed any interest in the undivided one-half mineral interest here involved by cancel- ed as clouds upon his asserted title there- to, and that he be adjudged to be the true and lawful owner of said one-half mineral 42. interest." "The county and the corporate defen- dants and the group of individual defen- dants filed separate answers, denying that the county was without authority to convey the land retaining a one-half un- divided interest in the minerals, averring that the president of the board of sup- ervisors was not authorized under the board's order to convey the land without retaining an undivided one-half interest in the minerals, and pleading defenses of laches, estoppel, and innocent pur- chaser for value." "The corporate defendants and the group of individual defendants incorpor- ated cross-bills in their respective an- swers and prayed a decree adjudging the validity of their respective claims to the undivided one-half mineral interest here involved." • "The contention of appellee on this appeal is succinctly stated by him as fol- lows: "The position of the appellee is that the deed was valid and binding from its dating and that clearly, simply and absolutely, as a matter of law alone, the attempted reservation or exception was null and void and of no effect, leaving the fee simple title vested in H. G. Ford under the deed, valid in every particular except the void reservation." "It will readily be seen that although the president of the board of supervisors had no authority under the board's order to convey the land to appellee without re- taining an undivided one-half interest in the minerals, and that, although the deed 43. to appellee was so drawn, he claims by virtue of said deed the entire fee in the land, including all estates therein. This is also notwithstanding the fact that the great weight of the evidence shows that at the time of appellee's purchase from the county, he was expressly advised that the county was retaining one-half the min- erals, and that at the time he accepted the deed he was advised and knew that the county retained therein one-half the minerals, and that two days thereafter he executed an oil, gas and mineral lease on the land and represented therein that he was the owner of an undivided one- half interest in the minerals. It would appear, therefore, from the great weight of the evidence that the minds of the par- ties met only on the proposition that the county was to sell appellee the land, in- cluding only an undivided one-half inter- est in the minerals, and that appellee was to purchase the land, including only an undivided one-half interest in the min- erals, but such conclusion is not neces- sary to the decision we have reached in this case." "There are other factors in the case which we shall now consider and which in our opinion are wholly determinative." "Appellee contends that by the coun- ty's deed he was conveyed the fee in the 40 acres with a reservation in the coun- ty of one-half the minerals and that such reservation was void because not author- ized by law and that the said reservation should, therefore, be stricken and the conveyance in fee permitted to stand as valid. If such is the effect to be given the dee4 then it was wholly unauthorized • 44. and ineffective to vest any title in ap- pellee. Under the express provisions of Section 6605 of the Mississippi Code of 1942, no lands held as security for the loan of sixteenth section funds and pur- chased by the county as foreclosure sale could be sold and conveyed except by a deed "executed in the name of the coun- ty, by the president of the board of su- pervisors, pursuant to an order of the board entered on its minutes. " Section 4048 of the Mississippi Code of 1942 al- so provides: "An officer shall not enter into any contract on behalf of the state, or any county, city, town, or village thereof, without being specially author- ized thereto by law, or by an order of the board of supervisors or municipal authorities." "It is manifest, therefore, that the only authority of the president of the board to execute a deed to appellee was that evidenced by the board's order on its minutes which directed the conveyance of the land to appellee, retaining in the county one-half of the minerals. If the deed is to be construed as conveying more, then it was unauthorized and in- effective to vest in appellee the full fee simple title to the land. To hold other- wise would be to enlarge upon the board's order and effect a conveyance of that which the board expressly directed to be retained (and therefore not conveyed), namely, an undivided one-half interest in the minerals." "----But finally, and more conclu- sive, is the authority vested in the board of supervisors under and by virtue of the aforesaid Section 6605 of the Mississippi 45. Code of 1942----. The act authorized the board to buy in its sixteenth section securities at a foreclosure sale where there was no other bid therefor equal to the amount of the indebtedness secured. It then authorized the board "to sell, rent, or lease said property or securi- ty, either at private or public sale, as the board of supervisors shall deem for the best interest of sixteenth section funds. " It is inconceivable, in view of the purpose and object of the statute, that the legislature intended to restrict the board in disposing of the securities in such manner as the board determined to be the best interest of the sixteenth sec- tion funds. It might well be that a pur- chaser for the entire property thus ac- quired could not be found who would pay as much for the property as might be ob- tained therefor by selling it in separate and divisable portions or estates. The appellee does not question the right and authority of the board under the statute to sell to him 40 acres of the 3Z0 acres acquired at the foreclosure sale. We think that the board, exercising its au- thority under the statute, might with as much reason sell separately other sep- arate acreage subdivisions of the pro- perty, or other separate estates in the property. It has beenwell settled by the decisions of this court that more than one estate may exist in the same lands. In the case of Fox v. Pearl River Lum- ber Company, 80 Miss. 1, 31 So. 583, the court said: "By the common law al- so several sorts of estates or interests, joint or several, may exist in the same fee; as that one person may own the ground or soil, another the structures thereon, another the minerals beneath the sur- 46. face, and still another the trees and woods growing thereon, etc. " Again it was said by this Court in the case of Stern et al v. Parker, 200 Miss. 27, 25 So. 2d 787, as follows: "There may be more than one estate in the same lands, oil and min- erals beneath the surface, the surface, and timber on the surface, as instances. " It is conceded by appellee that the board had the authority to sell the fee in the en- tire 320 acres. We think that this em- braced the authority to sell separate es- tates in the property. " "A power to sell a fee ordinarily in- cludes the power to sell a lesser estate or interest, or to grant an easement, 72 C .J .S ., page 422. We hold, therefore, that the board had the authority to sell the fee in the entire property or to sell separately acreage subdivisions of the property and reserve or retain mineral interests therein, or to sell the miner- als or parts of the minerals separate from the land, as the board mightdeter- mine to be the best interest of the six- teenth sectionfunds. We think these views are supported by the case of Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729. After the appellant acquired title to the land, it had the right to sell it without the minerals therein to one, and the minerals to another, either con- temporaneously or at different times. " "In the light of these conclusions the cases of Burke v. Southern Padific Ry. Co. , 234 U. S. 669, 58 L. Ed. , 1527, American Oil Company v. Marion Coun- ty, 187 Miss. 148, 192 So. 296, and Pike County v. Bilvo, 198 Miss. 775, 23 So. 2d 530, cited and relied on to support the 47. contention of appellee, have no applica- tion to the case here presented." We believe that in this situation the plaintiff by his conduct and by his deed is estopped. ESTOPPEL BY DEED "The grantee in a deed will be con- cluded by recitals therein limiting the quantity or extent of the interest convey- ed and making reservations in favor of the grantor or third person. " 21 C .J. 1095 31 C .•?.Si218 "On this topic a learned author says: 'T:h.c doctrine of election is founded upon the principle that there is an implied con- dition, that he who accepts a benefit un- der an instrument must adopt the whole of it, conforming with all its provisions, and renouncing every right inconsistent with them. The principle is recognized and established in this country almost precisely the same as in England, and rests upon the equitable ground that no man can be permitted to claim inconsis- tent rights with regard to the same sub- ject, and that any one who claims an in- terest under an instrument is bound to give full effect to that instrument, as far as he can. A person cannot accept and reject the same instrument, or, having availed himself of it as to part, defeat its provisions in any other part; and this applies to deeds, wills, and all other in- struments whatsoever. ' 2 Herm. Estop. 1156, See, also 2 Story, Es. Jur. (13th Ed. ) Sec. 1080. " 48. Fox et al. v. Windes; 30 S.W. 323, 325. (Mc. 1895). "The plaintiffs, having accepted and recorded the deed and having taken and held possession under the deed contain- ing the exception for a period of years, are estopped to assert that the reserva- • tion was improperly inserted in the deed or that it is not a binding provision of the instrument. Nothing in the corre- spondence between Mrs. Goodwine and plaintiffs, or in the other evidence in- troduced, affects the determination that has been made of the questions of law in- volved. " Brown et ux. v. Ulmer et al. , 204 Pac. 1007, 1008. (Kansas, 1922). "(7, 8) The general rule is that the grantee in a deed accepted by him is a party to the deed, even though he does not sigh it, and that he is concluded by recitals in the deed and by reservations contained therein in favor of the grantor. Martin v. Roberts, 57 Tex. 564, 568; Orbeck v. Alfei, Tex. Civ. App. , 276 S.W. 947; 21 Corpus Juris, p. 1095, Sec. 81; 19 Am. Jur. , p. 627, Sec. 29, p. 624, Sec. 26. 'The obligations under- taken by the parites to a deed are bind- ing contractually; and where the convey- ance is by way of deed poll--that is, one executed by the grantor alone--obliga- tions are enforceable against the grantee by virtue of his acceptance of the deed. ' 16 Am. Jur. , p. 645, Sec. 358. The recitals in the deed that the vendor's lien is retained to secure payment of notes executed by Garrett are contractual. Fridgen v. Furnish, Tex. Com. App. , 49. 23 S.W. 2d 307. The recitals which give the surface estate to Garrett and reserve the mineral estate to Greene are like- wise contractual. They define the char- acter and extent of the ownership and in- terests of the parties in the land affected by the deed. Kahnv. Kahn, 94 Tex. 114, 58 S .W. 825." Greene et al. v. White et al. 153 S.W. 2d 575, 583. (Texas, 1941). In a very recent case in the United States Court of Appeals, Ninth Circuit, and action was commenced by Russell, the plaintiff to quiet ti- tle in himself of the mineral as well as the sur- face estate to certain real property. He sought to have declared void a mineral reservation by the Northern Pacific Railway, a grantor in 1918, and a subsequent oil and gas lease to the Texas Company. This is the exact position of Farnik in the case at bar. The Court very clearly sets out the following: "Appellant in the case at bar would have us declare void a mineral reserva- tion which appears expressly in the very deed through which he, himself, claims title. He asserts no independent source of title. On the contrary, he insists that the express recitals in the deed to his predecessor in title (of which he had no- tice) were ineffective irrespective of the intentions of the parties to the convey- ance or the bargain into which they en- tered. Even if we were to resort to hy- pothesizing, it would, indeed, be diffi- cult for us to imagine a more obvious case of estoppel. " The plaintiff trying to say that defenses of wai- 50. ver, acquiescence, and estoppel were not avail- able, cited a Federal case holding these defenses were not valid against the Federal Government. The Court construing this rule said: "Can the appellant in the case at bar bring himself within the effect of this Rule ? We think not. Even assuming ar- guendo that appellant's theory is sound and that Congress did in 1870 impose a mandatory duty on the Northern Pacific to convey a full fee title to the land here involved, with no reservations, appellant has indicated no authority by which he is enabled to enforce that mandate. Nor has he attempted, if indeed it were pos- sible, to classify himself as a third par- ty beneficiary or a cestui que trust with respect to this land. To overlook a dis- tinction so obvious is to vault the appel- lant into a status which he has not ac- quired. In such legal gymnastics we will not indulge. The law is clear that where the gran- tee of surface rights or his successors in interest seek to remove the cloud of the grantor's mineral reservation, it must be established that the grantee's rights to the interest reserved flow from anindependent source of title, See 31 C. J .S., Estoppel, s 38 (f), p. 218. Where, however, the surface owner claims title to the mineral rights, which his grantor expressly reserved to himself, on the theory that his grantor had no right to make such a reservation, the owner of the surface is estopped from asserting that the mineral rights thereby passed to him in the instrument of conveyance, Morse v. Smyth, D .C . 1918, 255 F. 981 51 . Wier v. The Texas Co. , 5 Cir. , 1950, 180 F. 2d 465. This doctrine has been enunciated inas many ways as there are individual factual situations to justify its application. Estoppel, in the nature of an equitable concept, is designed to pro- tect the reliances and expectations of in- nocent persons from detrimental devas- tation by those who by assent and recog- nition have induced those reliances and expectations. Whenever the invocation of a rule results in the denial of a reme- dy, caution implicitly governs discre- tion. Caution must give way to reasoned judgment, however, where, as in the case at bar, the facts so overwhelming- ly justify the application of the doctrine. To disregard its applicability in this case would be to invite a miscarriage of jus- tice." In Baron v. Suffolk County, 156 N.Y .S.2d 43 (1956) a purchaser sued Suffolk County to recov- er damages for breach of contract for the sale of realty in that the deed conveyed less land than • contracted for. The Court inaffirming the Low- er Court and the County's position said: "Appellant was bound by the provision in the notice of sale that the successful purchaser would receive the usual form of county quit claim deed which was a- vailable for inspection at the county treasurer's office, and hence, by the provision in the deed that excluded from the conveyance any portion of the pre- mises previously acquired by the county for highway purposes. Further, in the absence of any claim of fraud, misre- presentation, or mistake, the accept- ance, without objection, of the deed of less land than contracted for, barred the 52. alleged cause of action." Russell v. Texas Company 238 F. 2d 636 (1956) vat COUNSEL'S ARGUMENT AND CITATIONS ON PAGES 40 THROUGH 57 DOES NOT SUPPORT PLAINTIFF . Counsel (P. 40-42) cites the case of Walker v. Bergbigler, 56 A. 963 (Pa. 1904). That was an action in ejectment. It involved a tax sale under statutes of Pennsylvania of 1815 and 1824 whichprovided indetail for the valuation, method of assessment, duties of owners, and advertise- ment and sale of lands for taxes. A newer law (1891) provided specificallyfor the sale of coun- ty lands which were not tax lands. Syl. 2 states: "Where county corn- missioners sold lands purchased at tax • sale in a manner provided by Act June • 2, 1891, which did not authorize such sale, the sale could not beheld valid un- der Acts 1815, 1824. . . .where the pro- ceedings were not in acc ordance with such acts. . ." The Court pointed out that there would be no inconsistency. at all if the proper distinctions between the foreclosure statutes which applied to tax lien lands and the sale statutes which ap- plied to other lands owned by the County were observed. The 1891 Act relating to sale of coun- ty lands in terms prescribed a conveyance in fee simple. The lands involved were tax lands. "There is no inconsistency at all if we treat the act (1891) as applying to other real estate owned by the county, but not bought at Treasurer's sales for non-payment of taxes." No definition 53. of "seated" and "unseated" lands was given, but the language of the case seems to mean that "seated" and "unseated" lands are tax lands as distinguished from other County owned lands. This is purely a case of interpretation of spe- cial Pennsylvania statutes entirely dissimilar to our statutes and can have no possible bearing on the statutes of Colorado. Even the termi- nology is unknown to our law. Cary v. Morton Co. , 233 N.W. 928 (N.D . 1919). This was a mandamus action. There the auditor was the tax collector with duties sim- ilar to those of our Treasurer in relation to col- lection of taxes. The case is interesting but not in point. There, after the County had acquired title to lands which had been foreclosed for tax- es and after the foreclosure had been completed, (as by the issuance of our Treasurer's deed to the County), the auditor advertised a sale of county owned land for June 8. Plaintiff bid. The auditor accepted plaintiff's bid and declared the sale closed. The sale had been advertised for cash. Plaintiff did not pay nor tender the pur- chase price. The next day the Board of Coun- ty Commissioners fixed a minimum price for the various tracts (which it had the right to do) which was higher than the bid and refused to de- liver the deeds. The Court held that the Board had no right to reject the bid after the sale was complete, but, because plaintiff had not paid or tendered the cash and no memorandum of the sale had been made, the sale had not been completed, the Board could raise the price, and plaintiff was not en- titled to mandamus. The two foregoing cases have no application whatever to the case at bar nor do the entirely different and special Pennsylvania or North Da- kota statutes. 54. Counsel's statement in the paragraph follow- ing his quotation from the Cary v. Morton Case (page 45) is another of his broad general con- clusions which is not supported by any "specific statutory limitations" in Colorado, nor by any Colorado case or by any applicable case from any jurisdiction. If it were, he would have told the Court. Counsel, on pages 45-49, quotes in full an opinion, dated October 17, 1946, from the office of H. Laurence Hinkley, then attorney general, presumably written by George K. Thomas. It should be noted that the opinion relates to an inquiry from the Colorado Tax Commission as to the Attorney General's interpretation of Section 211 (a) Ch. 142, C .S.A ., 1935 as a- mended by Ch. 192, S .L. Colo. 1941, relating to sale and disposition of tax certificates held by counties and tax deeds secured thereunder as • the same affects sub-surface oil and gas. It would seem to be pertinent only to tax sale cer- tificates and to tax deeds under such certificates sold or disposed of by counties, i.e. , deeds ob- tained by individuals who purchased such certi- ficates and thereafter obtained such deeds there- under. The opinionis largely devoted to the ef- fect of a tax sale of lands from which the min- erals previously have been severed. It speci- fically refers to the fact that a tax certificate "is a foreclosure of the security" and that on an assignment of the certificate or on a deed to an assignee 'thereunder the county may not withhold any part of the property being foreclosed. If the lien covered by the certificate covered all, the treasurer's tax deed to the assignee thereof must do likewise. The general correctly stated (P. 47) that the county had no power to withhold "by the assignment of the tax certificate or the execution of a deed to individual purchasers. " From the context, individual purchasers of the 55. tax sale certificate must have been meant. The author limits the opinion by saying that the coun- ty's interest is confined solely to the recovery of its current general taxes. Obviously this ap- plies to the foreclosure proceedings only. Even that part of the opinion quoted on page 48 is lim- ited to 211 (c) concerning leases and as to them and his volunteered suggestions as to good ad- ministrative practice seem wholly unfounded. In any event, the opinion is not directed to the question involved here, and, if it were, its weight, if any, is negligible. Mr. Farnik does not tell us what the Commission did with the o- pinion, nor that it was followed. It is a matter of common knowledge that all of the major oil companies operating in this whole area, includ- ing defendant Amerada, have continuously taken leases on minerals in lands owned by the Coun- ties after such counties had "foreclosed their securities, " in utter disregard by both the com- panies and county officials or Mr. Thomas' o- pinion. The fact that-the many and different me- ticulously technical title attorneys of said com- panies and the action of companies and counties alike constitute an administrative interpretation which would seem to be of greatest weight. In practice, at least, the course has become an unquestioned ride of property. As to division IV of plaintiff's brief beginning on page 49, we think its statement is its own reputation. It could not be in point even under the special statutes discussed in the Walker v. Bergbigler case relating to "seated" and "un- seated" lands. Ignoring the general powers giv- en counties by the statutes cited, Counsel states his position and admits (p. 49) that the only sec- tions "in the body of Colorado statutes" that have :anything to do with oil or mineral rights of coun- ties are found under Chapter 36, Article 11, CRS '53. Then we have no other statute limit- ing the general powers of counties. The vali- 56. dating act was a curative and remedial statute and relates specifically to such reservations as are found in the Farnik deed. Such remedial acts are usually referred to as validating acts and are uniformly upheld. Miller et al. v. Limon National Bank (supra) 88 Colo. 373, 378 .296Pac?96 Driscoll et al. v. State of Colorado (supra) 88 Colo. 390, 392 an 2 Pacte2 Bowles v. Miller et al. (1935) 96 Colo. 145; 40 P. 2d 243 We cannot believe that the "law and logic", (p. 49) applied in the cases from Pennsylvania and North Dakota under special and entirely dis- similar statutes, or even, the irrelevant quoted • opinion of the attorney general can be held per- suasive. The only other law and logic referred to under III of the Farnik argument are our own statutes and cases cited by us which authorize and uphold the action of the County in this case as we have previously pointed out. Counsel admits (bottom of p. 49), "This ar- ticle pertains to oil and mineral rights on pro- perty which the County may hold in aproprietory capacity." As previously pointed out all lands acquired by counties under 137-10-42 are held by the County in its proprietory capacity, sub- ject, of course, to the provisions for sale or lease. The land here was held by Weld County as the fee owner. Title was quieted in the Coun- ty under the special statutory authority of that • section to judicially determine the ownership of the County in its proprietory capacity. Counsel for Mr. Farnik, as well as Counsel for all other • parties herein, have affirmatively so pleaded 57. and insisted. Our legislature was not talking about the "poorhouses, courthouses and jails", etc. , affected by Pennsylvania's special act of 1891 with which the Walker case (supra) con- cerned itself. Until the proceedings for the fore- closure of its tax lien were completed, the Coun- ty, through its tax collector, the treasurer, ac- ted inits governmental capacity. When that was done and title vested in the county in fee, the County did hold said property and act inits pro- prietory capacity. We think counsel's own ci- tations and argument confound him. The definition of 36-11-5 (p. 53) make clear and certain that the terms defined mean any land owned by the County however acquired. it broad- ens the preceding validating section. We never heard before that courthouses, sheriff's facili- ties, road maintenance yards, etc. , were held by a County in its "proprietory" capacity as stat- ed by counsel (p. 54). The provision expressly permitting the County to retain any of its pro- perty necessary or useful for county purposes is only common sense, in view of the general provisions for sale in the foregoing parts of the • section. Whether the County passed a resolution (p. 54) setting aside, etc. , the East Half (E1 /2) of 35-7-59 is immaterial. The County did pass a resolution providing for the sale of the surface rights in this and other lands and for the sale of the minerals in this and other lands, together or separately, as requested. Under the statute, (137-10-43) Mr. Farnik "made written applica- tion" for the sale of said E1 /2 of said Section :1.4o ""`k '"' 35 and "did first deposit with the county com- missioners the cost of advertising" and the board did "offer for sale the property requested by such person (Farnik) to be sold". He specified • what property he wanted, bought it, got his deed and went away satisfied. Eleven years, eleven 58. months and eleven days later, aroused by the lure of oil wealth, he forgot that in 1942 all he wanted was more pasture (f. 299) and came back to demand for his $800.00 pasture purchase the fortune from presently producing oil wells and potential others on said property. He doesn't ask for reformation of his deed. He just says that the deed he got which specifically excepts all oil, gas and minerals, did not except, but conveyed them. As Judge Dennison was wont to say, "We think not." Counsel himself disposed of his subdivision V (p. 54) by his own statement on page 21 of his brief herein to the effect that if the county had the power to except minerals from the land in question in its deed to Mr. Farnik, as it did. ". . . .then we would feel that Mr. Far- nik would be bound by such legislative mandate and we would be 'out of court'. • Regardless of how wrong or shortsighted such a legislative mandate may be, it would be up to the legislature and not the courts to correct it." Counsel's first statement under the heading of V (P. 54) is directly contradicted by the re- cord in this case, by the 1942 Resolution of Board of County Commissioners (Exh. C, f. 280). By said resolution, ever since that date, all minerals excepted have been available for bid and purchase. The statute also so provides and isavailable to anyone desiring to purchase. The countynever was requested to sell any min- erals and there is no evidence that it ever was • requested or that it ever refused so to do, and counsel has not said so. If Mr. Farnik's stum- bling testimony was so intended (ff. 297-333) it falls far short of saying so. He does not say that he ever saw any county commissioner. 59. There is no conceivable way under our stat- utes whereby property foreclosed fol. taxes can be held by the County subject to the uncontrol- led and absolute discretion of the Board of Coun- ty Commissioners. If counsel will return from flights of distorted fancy to a calm consideration of the statutes of Colorado and the cases of Colo- rado interpreting them, the vision "embryo of a monster" (P. 56) which he has so terrifyingly conjured up will return again to the mists. It is impossible under our statutes to "con- ceive the enormity of the assumption" from which counsel shrinks (P. 57). Suchpremise of course is not conceivable. We have an abiding faith that our concepts of the American government, society and way of life will continue and that no return to feudalism threatens us. Our citizens will not become peasants or serfs. In spite of plaintiff's alarm for them (p. 55), neither the State of Colorado, nor any govern- • mental authority, nor any school district, nor any fire protection district, nor any water con- servancy district nor any municipality has shown • any concern over their imagined danger. Coun- sel for Mr. Farnik does not represent them nor any of them. The same goes for division VIII (P. 70-73) of plaintiff's brief. The problem, if it existed, would be for the legislature. In view of counsel's worry over embryo mon- sters (p. 56), the loss of all concepts of Ameri- can government and American society and way of life and our possible return to a feudal sys- tem (p. 57), it may be not amiss to call atten- tion to the obvious fact that the boards of coun- ty commissioners of the various counties, this defendant among them, are groups of men so de- meaned and respected as to gain the approval of, and election by, the inhabitants of their re- spective counties, whose welfare and best in- 60. terests they are sworn and obligated under bond to serve. They are not small, closed, greedy overlords and will never become our masters under a "feudal system". The population of the counties are the population of all the school dis- tricts, fire protection districts, conservancy districts and municipalities within their respec- tive borders. This defendant is or represents all of the 70 odd thousands of people within Weld County. The population of the counties collect- ively are the people of Colorado, and if, as coun- sel suggests (p. 57), it would be better to except minerals from pasture deeds (or others) and to retain all of revenue from such minerals in al- leviation of the tax burdens of the inhabitants than to get only the taxes which might result from "windfalls" (p. 73) to Mr. Farnik and others similarly situated, then certainly all of our peo- ple may benefit instead of only the few Farniks. The statute contemplated an advantage to the tax- paying inhabitants and provided "PROCEEDS OF SALES". • "All netproceeds from the sale, lease or other disposition of such real estate so conveyed to the county by the county treasurer shall be paid to the county treasurer of suchcountyand shall be first applied to the payment of all unpaid taxes accrued against the property up to the time the tax deed was issued to the coun- ty and any remaining avails of the sales shall be credited to the ordinary county revenue fund of the county. " CRS 137-10-45. It might be noted that the State of Colorado • and the Nation, also objects of plaintiff's con- cern, both have and retain title to vast areas of lands, not subject toad valorem taxes, and with- 61 . hold minerals from their conveyances thereof as part of a general and beneficient general pub- lic policy. Counsel under VII (P. 68) makes a cleverly plausible statement which on its face really looks good, but it is not sound. There is a vast .dif- ference between estoppel in pais and estoppel by deed. Plaintiff's own statement is: "The doctrine of estoppel by deed is an equitable rule applicable principally to a grantor in a deed to 'prevent him from asserting comething contrary to what he has stated in a deed he has ex- ecuted and delivered." (Plaintiff's brief, P. 68)." Agreeing with plaintiff, his conclusion does not follow. Here the grantor is not attempting to assert anything contrary to what it has stat- ed in the deed which it executed and delivered. • The most that can be made of the language of Walpole v. State Board is that where an agency • of government on which the statute imposes spe- cific duties may not illegally flaunt the statute and then have its illegal act, done in contradic- tion of the law, made to stand by invoking estop- pel to sustain its wrong. Counsel admits the application of the doctrine to private parties not controlled by statutory limitations. It also ap- plies to the County unless its act was illegal be- cause prohibited by statute. We assert that the action of the County was clearly legal. If its act was illegal, it was void and plaintiff, instead of the surface only, takes nothing. The walpole cases so hold. 61. 11. IF THE RESERVATION IN PLAINTIFF'S DEED IS NOT EFFECTIVE, HIS DEED IS WHOLLY VOID Plaintiff can derive little comfort from the case of Walpole vs. State Board of Land Com- missioners, 62 Colo. 554. It is one in the cate- gory of cases where as discerningly observed by Mr. Justice Franz speaking for this Court in the recent case of Weiss v. Axler concerning Colorado Springs and Inter Rx. Co. vs. Reese. "The Court rode off in all directions. " The o- pinion in that Walpole covers nine pages of the Colorado reports. Plaintiff has shown such zeal in following that opinion in all of its directions, that he missed the point of the ruling and failed completely to tell this Court that the decisibn, as stated by the same Court, in an opinion by the same Judge who wrote the first Walpole o- ' pinion held only "We held in the Walpole case that tin- der the then existing law the State Bow had not power to effect a separation of the surface from the lands offered for sale, by reserving or excepting the min- erals from such lands, and the board was therefore enjoined from granting a lease upon the minerals attempted to be so re- served or excepted, which was the sole matter there in issue or determined." Gunter v. Walpole, 65 Colo. 234. That holding makes the rest of the first opinion only dicta or surplusage. The Gunter case was decided before the pass- age of the 1919 validating act and so the excep- tion or reservation of minerals was void. The board under the statutes as it then existed had the power to convey only the fee simple title. 63. r The holding of the case is summarized in the syllabus which, in part, is as follows: "The State Land Board offered for pub- lic sale only the surface of certain lands. reserving the mineral. This reservation was without authority of law. The appli- cation of the purchaser for mandamus to compel the conveyance both of the sur- face, and all below the surface, was de- nied, upon the ground that the State Land Board being without authority to sell the mere surface, the whole transactionwas void." Gunter et al. , v. Walpole et al. , 65 Colo. 234. The reasoning of the Gunter case, and the only conclusion which can be drawn from it, clearly is that the transaction was either all good or all bad. The state board, then legally had no authority to reserve the minerals, but under the statute should have transferred the fee title, including the minerals, as required by the ex- press terms of the then existing statute. The Court held that mandamus did not lie--that ". . . . . . . the court maynot make a new contract for the parties when they have failed to make a valid one themselves." Even what seemed to'be an appropriate Judicial proceeding directly invok- ing the aid of the Court failed. Here plaintiff has not asked for mandamus, reformation or any other legal relief against the defendant Board, but comes here with the demand that this Court, in this collateral attack, short-cut around all normal procedure and accomplish for him the ultimate result of rewriting for him a new deed different from that for which he contracted. Plaintiff has pleaded the deed on which his claim • must rest. If it is good, he got title to the sur- face rights only. If it is bad, it is all bad and he got nothing and the contract as held in the 64. Gunter case is void for all purposes. "It is undisputed that what was offered for sale by the State Land Board was the surface only. That is what the purchaser bid for. . . . then a court of equity would not be justified in decreeing that a sub- ject matter different from the one agreed upon be conveyed in lieu thereof since the Court may not make a new contract for the parties when they have failed to make a valid one themselves." Gunter v. Walpole, supra 65 Colo. 234, 237. That is true of the transaction in this case. Referring to the Gunter case, this Court a- gain stated: "In that case we held (September, 1918) that the parties having made a void con- tract the Court was without power to make for them a valid one in lieu thereof. . . " Cronk v. Shoup, Governor of 70 Colo. , 71, 73. Here there was no bid, no contract for and no sale of the minerals involved. No consider- ation was paid therefor. The only meeting of the minds was on the sale of surface rights on- ly. There was no authority given to the scriv- ener (commissioner to convey) to convey any- thing but the surface rights. That is all his deed did convey. Evidence in this case is somewhat squeezed by Counsel in his statement under A on page 74, and also in his statement of his motion for a new • trial, especially on pages 16, 17 and 18. 1935 CSA, Ch. 142, Section 211 (1) (now CRS 53, 177 10-43) quoted at length by counsel, provides 65. (p. 29) "The board of county commissioners shall have the power to sell. . . ." and requires the county to sell (P. 30)" and provided, further that upon written application of any person, who shall first deposit with the county commissioners the cost of advertising, the board of county commissioners shall offer for sale the property requested by such person to be sold Under the statute: (1) This defendant board passed its resolu- tion Exhibit "C" attached to its second answer (ff. 91-93; Exhibit 1-6 (280) dated November 10, 1942, for sale of county lands, which pro- vided for reservation of minerals but did also provide for the sale of such reserved oil "in the same bid, sale and deeds as lands, or in separ- ate bids, sale and deeds. . . .". (2) Mr. Farnik, on September 13, 1943, made his bid (written application) and deposited his • check for the "cost of advertising" (Exh. A, ff. 85-87; Exhibit 1-a, f. 278) for the "East Half (El /2) of Section Thirty- Five (35), Township Seven (7), Range Fifty-Nine (59), excepting therefrom the oil, gas and other minerals therein." (3) The county, by notice, published on Oct- ober 29, 1943 (Exh. B. ff. 88-90; Exh. 1 B f. 279) offered for sale "the property requested by such person to be sold. . . .reserving therefrom, to grantor, all oil, gas and other minerals:there- in or thereunder. " Said notice reserves the right to reject any and all bids. (4) At the sale at which Mr. Farnik attended and at which he made his purchase, a public an- nouncement was made (Exhibit D, ff: 94-95; Exh. 1-D, ff. 281) which referred to the bids of Farnik and others and stated "all mineral rights 66. are being reserved by the county." (5) After the sale by the board of county com- missioners, and on the same day, the board, • by its resolution (Exhibit E ff. 96-98, _Exhibit 1-E f. 282), after reciting its advertisement for sale "excepting therefrom all oil, gas and other minerals, " constituted and appointed its Com- missioner to make conveyance, by quit claim deed, the E1 /2 of Section 35, Township 7 North, Range 59 West, "reserving therefrom, to grant- or, all oil, gas and other minerals therein and thereunder". (6) Defendant's Exh. A, the deed, attached to plaintiff's complaint (ff. 15-17, Exhibit 6 f. 289) was issued, stating among other things, "NOW THEREFORE, Weld County, by Harold H. Seaman, its commissioner, appointed to execute the deed being the same person as Harold H. Seaman, the duly qualified county treasurer of Weld County, acting upon the direction of the Board of County Commissioners of Weld "County and as County Treasurer conveying to Frank Farnik "and reserv- ing therefrom, to grantor, the oil, gas and other minerals therein". The deed recites that it is made pursuant to res- olution of the Board of County Commissioners of November 22, 1943, and that it is executed on behalf of Weld County by virtue of the Order made by said Board of County Commissioners on November 22, 1943. NEITHER THE KOPPLIN CASE NOR THE BURKE CASE APPLIES 67. The one case on which plaintiff principally relied in on trial court and apparently here (P. 64), is KOPPLIN v. BURLEIGH COUNTY, North Dakota, (1951), 47 N.W.2d 137. It is no more in point in this case than are the other cases cited by plaintiff. It is reported directly fol- lowing the case of Kershaw v. Burleigh County, (47 N.W. 2d 132), cited -bathe trial court, which was a case involving construction of two con- flicting special statutes of North Dakota, Section 11-2704 provided that all deeds should resetve one-half of all minerals. Section 57-2815 pro- vided that all deeds should convey all right, title and interest of the county. The deeds involved conformed to the later Section 57-2815 and con- tained no reservation. Section 11-2704 became law on March 14, 1941. Section57-2815 became law on MarchT5, 1941. They were both codi- fied in 1943 (effective 1945) as NDRC 1943. It was held that the two laws being in irreconcila- • ble conflict, the later repealed the earlier. The case discusses statutory construction, but all • it holds is that the deed issued as commanded by the later statute, which was in effect, good. The Kopplin case was a suit to determine ad- verse claims based on the same two conflicting statutes construed in the Kershaw case. This was a tax collection or tax foreclosure case and involved a treasurer's tax deed issued by the auditor (treasurer) which, under a statute' (such as our statute relating to treasurer's tax deeds) compelled the auditor to convey "all the right, title and interest of the county" therein. The case has no bearing whatever on the question at bar. The deed in the Kopplin case was issued by the tax collector during the course of a fore- closure for the collection of the tax lien. It was not the deed of the county as the owner of the land. The Auditor's Tax Deeds issued by reason of non-payment of taxes correspond in effect to our Certificates of Purchase issued at tax sales. The prescribed form recites "Whereas the real 68. property hereinafter described was acquired by the County through tax deed proceedings for non- payment of taxes for the years of 19 to 19 inclusive, with interest and penalties, amount to the sum of Dollars . " The case states that law does not provide for a con- veyance of valid title in fee simple, but only all the right, title and interest of the County in and to such property. ". . . . the mandate of the stat- ute is that in conveying lands forfeited to the county for the non-payment of taxes, the offi- cers do so by instrument conveying to the pur- chaser 'all right, title and interest' the county has in the land conveyed. " This deed was just the same as our treasurer's deeds, issued to complete his tax lien foreclosure under CRS '53, 137-10-35.. It was issued under Section57- 2815, NDRC . North Dakota has a statute which corresponds to our CRS '53 137-10-42. It is • NDRC Section 57-2809, andprovides for the con- veyance of unredeemed tax lands to the county • of a "new complete and paramount title". The same case was urged upon the Supreme Court of Wyoming in the Probasco; case '(supra) • which said of it (quote) "We are cited, however, to the caseof Kopplin v. Burleigh County, 77 N.D .942, 47 N.W . 2d 137, 139, in whichit vas held that the county in giving a deed to the purchaser had no right to reserve the mineral rights. In that case the statute provided: "'Upon the payment of the purchase price in cash or the payment in full of all installments, with interest to the date of payment, the county shall execute and deliver to the purchaser a deed convey- ing to him all right, title, and interest of the county in and to such property."' NDRG 1943, 57-2815, subd. 5. 69. The court reasoned that the statute in prescrib- ing the form had thereby made every fact recited in the form a matter of substance, and that this substance may not be varied by the county offi- cers. --- The Wyoming Court continued: "We do not say the decisions in these cases were wrong. They were decided under certain statutory provisions which were unlike the statutory provisions in this state." The case of Pederson v. Bank, cited in the Probasco case, is a North Dakota case. It was decided in 1955. (Kopplin v. Burleigh Co. , the case of counsel's principal reliance, was a North Dakota case decided in 1951. ) It was a quiet ti- tle action. The issues were between Pederson and his lessee, Hunt Oil Company, on the one hand, and the Federal Land Bank and its lessee, Amerade Petroleum Corporation on the other. Judgment for plaintiff Pederson affirmed.(This • case cites Greene v. White, 153 S.W. 2d575, cited in above, and the discussion :-emphasizes • its application here as to estoppel by deed. ) In the Pederson case: Hoaas was the owner and delinquent taxpayer. In 1917 he mortgaged the land to the Federal Land Bank. In Decem- ber, 1934, the land was sold to Williams Coun- ty for the 1933 taxes. In 1942 Hoaas, in lieu of foreclosure, deeded the land to the Bank. On October 1, 1942, an auditor's tax deed was is- sued to Williams County, which conveyed abso- lute title to the county under Section 57-2809. Under the special statutes of North Dakota tax- payers (and their successors in title) had a spe- cial preferential right to purchase from the coun- ty--a first option--a right of redemption. This "right of redemption" was involved in the cases of Kershaw v. Burleigh County and Kopplin v. Burleigh County apparently under NDRC57-2815. • 70. Pederson purchased from the Bank, thereby get- ting the redemption rights or purchase option which it had acquired, under the redemption stat- utes, from Hoaas, the taxpayer. The case shows conclusively the fact that the Burleigh County case relied on by plaintiff does not support plain- tiff's contentions in the case at bar, but, pro- perly considered, is in harmony with the po- sition of defendant, Weld County. "The right of a former owner or his successor in interest to repurchase land, title to which has been lost to the county through tax deed proceedings, first ap- peared in Chapter 238, SLND 1939. Con- cerning that right we said: 'That statute has no connection with or effect upon the vesting of title in the county. It confers an additional right (erroneously designated as a right of re- demption) upon the former owner, mak- ing him a preferred purchaser without profit to the county. It is a special stat- ute giving him a second chance as a spe- cial act of grace. ' Buman v. Sturn, 73 N.C . 561, 16 N.W. 2d 837, 842. " ". . . .A study of the statute discloses that right of repurchase is restricted to the owner or his successor in interest." "(1) When the tax deed was issued to Williams County on October 1, 1942, it conveyed to the county 'the absolute pro- perty in fee to the county, free from all encumbrances whatsoever. ' Section 57- 2809, NDRC 1943. This deed vested t e county a new, complete, and para- mount title under an independent grant • from the sovereign authority which ex- tinguished all prior titles." (This case cites 8 other North Dakota cases 71 . as authority. ) Pederson v. Federal Land Bank of St. Paul and Hunt Oil Company, 72 N.W.2d 227, 232, 231. Pederson prevailed only because he was the successor in title, through the bank, of the for- mer owner, the delinquent tax payer. On page 58 of his brief counsel for Mr. Far- nik cites the famous case of BURKE v. THE SOUTHERN PACIFIC RAILROAD CO. W€:. have all referred many times to that case in consid- ering titles to railroad lands. The principal holding of that case is simply that the govern- ment was bound by the findings of its land de- partment (res adjudicata). In 1910 Burke filed a bill in equity in the U. S. Circuit Court for the Southern District of California against the Southern Pacific Railroad Company and others. Patent was issued to the Railroad "Excluding and excepting all mineral lands should any such be found in the tracts aforesaid, but this exclusion and exception, according to terms of the stat- ute, shall not be construed to include coal and iron lands." The United States by Section 3 of the Act of July 27, 1866, granted to the railroad "every alternate section of publicland, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile Provided, further, that all mineral lands be, and the same are hereby excluded from the operation of this Act " 72. The Court then dwelt on the necessityfor deter- mination of what was mineral and therefore ex- cluded from the grant. The Court reviewed many authorities and said: "Words hardly could make it plainer that mineral lands were not included, but expressly excluded. (p. 1545) As it plainly was not intended that pat- ents should issue for excluded lands, to which the company was not to have any right or title, the direction respecting the issue of patents necessarily carried with it the power and the duty of deter- mining in every instance whether the land came within the terms of the grant, or, for any reason, was excluded from it. (p. 1546) The issue of said patent was a deter- mination by the proper tribunal that the • lands covered by the patent were grant-, ed to said company, and hence, under the proviso of said act, were not mineral at the date of the issuance of said patent. After the Secretary of the Interior has decided that anyparticular lands are not mineral, and has issued a patent there- for, the title is not liable to be defeated by the subsequent discover of minerals. 1547) It thus appears that the Land Depart- ment has regarded the issuing of such a patent as a determination of the nonmin- • eral character of the land, and as effect- ually and unconditionally passing the ti- tle. 73. These decisions are applicable and controlling here. The reasoning upon which they proceed compels their reaf- firmance; and, besides, they have come to be recognized as establishing a rule of property." The decision turns not upon the validity or invalidity of the reservation as such, but upon the fact that the land department which was the proper tribunal had made an indisputable deter- mination that the lands covered by this and sim- ilar patents were not mineral and therefore that there was no subject matter upon which the lang- uage of the patent "excluding and excepting all minerals should any such be found" could oper- ate. It having been determined finally and offi- cially that there were no minerals in "the tracts aforesaid" then obviously none could be "found" and none were reserved or excepted. Only lands not mineral could be patented. The Court in Thornhill v. Ford, supra, hav- ing analysed a case entirely parallel oA statutes and facts, concluded that = the Burke case had noapplication there. It has none here. It was not even mentioned in the Probasco case. As far as I canfind from Shepard's Citations, the Burke case has never been cited byour court except in the case of Walpole v. State Board, 62 Colo. 554, (supra). All and whatever comment or apparent approval given the Burke case there- in, was withdrawn and overruled by this court in Gunter et al v. Walpole et al. 65 Colo. 234 by the statement from that case quoted above. Some of the earlier and more technical cases attempt a distinction between "exceptions" and • "reservations". Our statutes 36-11-1; 36-11-4 use the term "reservations" as synonymous with "exception" and our court has declared: 74. "(2) It is conceded that many courts, this court included have used the words "exception" and "reservation" inter- changeably. ----It is said, 'a reserva- tion will be construed as an exception *here there is a plain intent arid the grantor will retain in himself a fee sim- ple estate in the portion reserved---." Haymaker et al. v. Windsor Reservoir and Canal Co. , et al. 81 Colo. 168, 172, 254 P. 768 Plaintiff's bid states "excepting therefrom the oil, gas and other minerals therein". The whole transaction shows a retention of the oil, gas and other minerals by Weld County, and a desire by plaintiff to acquire only the surface, pasture, rights. • On page 74 of his brief plaintiff states that it was error for the trial court to receive or con- sider any evidence of Mr. Farnik's bid, etc. The evidence shows that Mr. Farnik's bid i- nitiated the sale; that the county did take action on it; that it was made according to statute and was acted on throughout. The statement at the beginning of the sale considered it. The bid was dated 9/13/43, the advertisement of notice of sale was in progress on or before 11 /12/43, within 60 days. Certainly Mr. Farnik never did anything to- ward the withdrawal of his bid. That other pro- perties were also offered with or without bid was inconformity with the statute, is a matter of no concern to Mr. Farnik. Counsel says "the bid has rioted thereon that the check was returned". True, but the check was not returned until after Mr. Farnik had replaced it with another check 75. for $800. 00. Mr. Farnik sa testified (f. 330). He also testified as to the pasture. "Q. What were the circumstances that induced you or caused you to look into this property? A. Well, we needed pasture, and the County Treasurer pointed out who owned the place. " Plaintiff's "Conclusion" (P. 74) is tinted with the same coloring observed throughout his brief. Correctly stating it, in our view, "If the legis- lature did not grant such power and authority, it follows that the trial court must be reversed and that Mr. Farnik's deed should be declared wholly void." Counsel would like to accept that part of the decree favorable to him but would have this Court eliminate all other partsaerro- neous. Like plaintiff's deed, the decree is either good or bad. Plaintiff got the surface or nothing and has proved it by his own admissions and ci- tations. CONCLUSION We believe and state that the law is: The County Commissioners, under author- ity of the statutes and decisions, have full pow- er to handle all business of the County. By those statutes the State of Colorado has delegated to the County the full power of the state in relation to the control and handling of County property. That power once given continues unimpaired until and unless some statute is passed which specifically by its terms restricts or withdraws the same. No impairment or restriction can ev- er be raised by implication. 76. In Colorado, as to any matter here involved a- r:Statute has ever been passed except as to the matter of certain details which have been me- ticulously observed in this case. All statutes of the state and all powers grant- ed must be considered together as the one mass of applicable law. • Sec. 137-10-42 and 43 do set out certainpro- cedures, but they are not all inclusive and they do not purport to restrict or withdraw any of the general power which the County has had from the beginning. No specific permission to re- serve was needed. The County already had full authority under its general powers and that pow- er has never been withdrawn. In 1935 the County was given power to take fee title by Treasurer's deed. Fee title was meant because the same act gave the County the • specific power to maintain quiet title suite for the purpose of declaring its fee title. The powers specified under 137-10-42 and 43 are not exclusive nor restrictive, but aug- ment the general power. The power to sell the fee, included the pow- er to divide. That power was given by the or- iginal statutes and confirmed and reconferred by 137-10-43. Whatever plaintiff got he got by the deed he got from the County and on that he must stand. This Court cannot remake nor rewrite this an- • cient document. If plaintiff had any grievance he has miscon- • ceived his remedy. If actions such as occurred here are not wise, 77. or not for the "benefit of the inhabitants", the problem is for the legislature. It is not one for the Court. The facts are: Weld County by Treasurer's deed became the fee owner of the land in question in fee simple. It sold the surface rights in the land in ques- tion to plaintiff according to his contract and a- greement, at a sale plaintiff admits was good, (except as to the reservation). Under the law the County still owns all of the minerals in any event, and perhaps owns the en- tire fee. The case goes only to the question of the quan- tum and quality of the estate, if any, conveyed to Farnik. By virtue of the statutes (36-1-1 (3) and (4), 36-1 -2, 36-1 -3, and 36-1-7), the Coun- ty had full general power. By 137-10-42 it got the additional new power to take title to tax lands. By 137-10-43 certain details were specified in • aid of the existing powers. Weld County has taken the position and be- lieves: that its deed, including the exception and reservation of the oil, gas and minerals in or under the tract described, is valid, and the county is willing to stand on its deed as written. That under said deed only the surface rights passed to Mr. Farnik. That title to all oil, gas and minerals in or • under said lands belong to and are still vested in Weld County in fee, (subject to the lease to Amerada). But if it be held that such exception and re- 78. serva.tion was not valid and was not validated by the 1949 statute then and only in that event, the whole deed is void, nothing passed under it and the entire fee title still is vested in Weld County, free from any claim. whatsoever of the plaintiff. In other words if the deed with its exception is riot all good, then and in that event, it is all bad and void for all purposes, We respectfully pray the Court's determina- tion as here stated, Respectfully submitted, Robert Go Smith 319, First National Bank Bldg. Greeley, Colorado Attorney for the Defendant the Board of County Commissioners of the County of Weld, Colorado, 79, Hello