Show I SOME LAND QUESTIONS THEY V ARISEN TO VEX THE BOARD S TH BOAD I I Answered by Attorney General Bishop Applications For School Lands Lads S I When the state board of land commissioners j commis-sioners was In session some days aso several complicated questions arose and the attorney general was requested to reply to the following First Whether or not inasmuchas under un-der section 17 of the land law granting all settlers claiming u preference right until July 1 1S97 within which to make their applications this board ca finally pass on any applications and dispose of any school lands until after expiration of time above mentioned Second What would be the status of an applicant who had applied for school land under n preference right and who was at the time of the application or on January 1 1S94 the owner of more than L60 acres of land The land for which he applied also having been applied for by another settler Attorney General Bishop yesterday transmitted to the board an opinion covering both queries and therein says As to your first inquiry I am of the opinion that the board is not legally prohibited pro-hibited from passing upon pending applications cations before the expiration of the time in which applications for preference rights are to be made Should the board decide to do so however and award applicant ap-plicant the right to purchase land under a preference right application andraf ter ward and before the 1st of July 107 another person should make application for the same land and should clearly establish es-tablish to the board that he was entitled en-titled thereto PS against the first applicant ap-plicant the former action of the board i tha tOb ta aOtr fi would have to be set aside and the certi icate of sale annulled This would undoubtedly un-doubtedly result in complications and perhaps per-haps litigation which should be avoided About the only way to avoid such complications cations would be for the board if it has i the legal right to do so to postpone final consideration of these matters until 4 after the limitation has expired in which such applications should be made to wit July 1 1S97 That the board has tho power to defer action until this time I think there can be no question and It undoubtedly would be the safer course to pursue in the premises Under your second query I assume that the applicant referred to is one who has made application for the purchase pur-chase of school lands under the law of 189G and who at the time of making his application and on January 1st 1S04 was he owner of more than 160 acres of land The question being whether the application appli-cation made under the old law which was clearly objectionable because of the fact that the applicant was the owner of more than 160 acres could now be taken ip and considered by the board by reason of the fact that the limitation had been Increased so that the entire holding including f > y I in-cluding that applied for should not ex reed iSO srrefe The application as it stood under the old law of 1S96 would abstractly speak ns be vulnerable to the technical ob ection that the party at that time owned more than one hundred and sixty acres of and and strictly construed might beheld be-held to be insufficient on this ground There is no legal reason however why the same application could not be railed under the law of 1S97 and if it appeared to the board upon the hearing thereof hat the party on January 1 1S94 or at he time of making said application was not the owner of more than 4SO acres of and including the land applied for that le was an actual and bona fide settler or occupant thereon that he had improved im-proved the land in question and that he was on January 1 1S94 an actual settler or occupant thereon he would be entitled under such application to purchase said and The fact that the same land had also been applied for by another settler would not change the rule above stated Inasmuch as there can be but one actual and bona fide settler on the same tract of land as provided by law And it would therefore follow that there could bo no other settler upon such land who would be able to bring himself within the pro isions of the law relating to settlement and improvement so as to entitle Him to he preference right to purchase the came The right of one party to purchase the land in question depends wholly upon the strength of his own proof to bring him vithin the provisions of the law and not upon the weakness or lack of strength of another whose application covers the same lard Therefore if more than one person applies to purchase the same tract of land it clearly follows that upon the hearing of their applications the board must determine as between them and accord the right to purchase to one of them only S There arc two ways in which such applications ap-plications might be treated by the board First To notify all persons having made such applications as would under the law of 1S96 be vulnerable to the objections ob-jections above set out to ask leave of tho board to refile them under the law of 1897 Second I am of opinion that the board possesses the power to regulate the whole matter by the adoption of a ruler rule-r resolution spread upon its records by which it would consider all sucH applications applica-tions as having been reified since the taking effect of the law of 1S97 Such a rule of the board properly adopted and spread upon its minutes would have the same effect as a roiling of each application applica-tion by the parties thereto and would be preferable to the first inasmuch as it would simplify matters and save to the board a Aery great amount of labor and exoense in ascertaining just what applications appli-cations would come within the rule ana the notifying of such appllcantsto reflla the same within the limitation of tisi nrescribed bjr law |