WARREN A. GROSSETTA, R. H. MARTIN, and J. B. MEAD, Members of the Board of Supervisors of Pima County, Appellants,
WILLIAM W. CHOATE, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Elbert R. Thurman, Judge. Judgment reversed and cause remanded with directions.
Mr. Joseph B. Judge, County Attorney of Pima County, and Mr. Tom Chambers, Deputy County Attorney, for Appellants.
Mr. Otto E. Myrland, for Appellee.
[51 Ariz. 249] ROSS, J.
The board of supervisors of Pima county, consisting of the appellants, on February 12, 1937, being duly petitioned thereunto, established Twin Buttes-McGee Road No. 85-A as a county highway. The right of way passes over the W. 1/2 of Sec. 34, Tp. 17 S., R. 12 E., which is a lieu or indemnity selection for school lands under section 24 of the Enabling Act, page XLII, Revised Code of 1928.
Appellee filed his petition for writ of certiorari, which was granted, and the board of supervisors' record of its proceedings was certified to the court. The assigned reasons in his petition for asking for the writ it is not necessary to state since petitioner has abandoned such reasons. The trial court in its decision held the board's action in establishing the county highway over the W. 1/2 of section 34, supra, was void for the reason that the state held said land "in trust" and subject to certain restrictions in the Enabling Act and could not grant a right of way over it. Although appellee did not assign such ground in his petition for the writ, he has seized upon it here and bases his argument in support of his petition almost entirely thereon.
The proceedings by the board of supervisors to establish the highway were taken under section 1701, Revised Code of 1928, which prescribes the exclusive method for a county to obtain a right of way for a county highway. Apache County v. Udall, 38 Ariz. 488, 1 P.2d 340. The requirements of that section were complied with and the board of supervisors had jurisdiction of the parties and the subject-matter and was competent to make the order establishing the highway as surveyed and mapped, unless it appears that a right of way over lands of the state cannot be had. Section 3005, Id., reads: [51 Ariz. 250]
"The department [state land department] may grant rights of way for any purpose it deems necessary, and sites for reservoirs, dams and power or irrigation plants or other purposes, on and over state lands, subject to such terms and conditions as the department may impose, and make rules and regulations respecting the granting and maintenance of such rights of way and sites. Where the granting of a right of way or site amounts to the disposition of, or conveys a perpetual right to, the use of the surface of said land, it shall be disposed of, after the department's approval of the application for said right of way or sites in conformity with the requirements of law, and the commissioner [state land commissioner] may, if in his judgment the best interests of the state so require, state in the notice of sale that said sale shall be subject to approval by the department, and in such case the purchaser thereof shall not be entitled to said right of way or site until his purchase is confirmed by the department."
Under this section the state land department may grant to the county a right of way easement over state lands, or may sell the lands for right of way. In this case the grant was of the right of way easement and not the fee.
On May 4, 1937, the state land department approved the board of supervisors' application for right of way "with the understanding that the Right-of-Way is to be fenced on both sides, gates and cattle guards constructed at each end at
the expense of Pima County."
The application referred to was not one to buy the land but one for an easement over it. The only question then is, Has the state land department power under the above section of the statute to grant a right of way over school lands of the state? The trial court was of the opinion that the lands acquired by the state from the United States through the Enabling Act were accepted by the state in trust for the people and could not be disposed of except upon the conditions [51 Ariz. 251] and terms of the grant, and that, since the Enabling Act contains no provision authorizing the state to grant rights of way easements over any of such lands, the above statute conferring the power upon the state land department is unconstitutional and void.
A considerable portion of the surface of the state consists of common school lands and other institutional lands, and if no right of way for public highways may be acquired over them, the result is most disturbing. Since statehood, two paved highways traverse the state east and west and one north and south and many others are tributary to these, and it would be remarkable if they did not pass over many sections of these institutional lands. Under the decision of the lower court, where these highways cross state lands, they are there without right and may be removed, and highways in the future must be located, however costly or difficult or inconvenient, on lands other than state lands. We think the restrictions in the grant of such lands, as to their disposition or use by the state, were intended to prevent their sacrifice and to obtain for the institutions to be benefited the best and highest price obtainable, ...