MRS. NELLIE EHLE, Appellant,
TENNEY TRADING COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.
Mr. Stephen B. Rayburn, for Appellant.
Messrs. Patterson & Eastvold and Mr. Yale McFate, for Appellee.
[56 Ariz. 243] ROSS, C.J.
The appellant herein Nellie Ehle, and the appellee, Tenney Trading Company, a domestic corporation, both applied, in November of 1937, to the State Land Department for a lease of Section 21, Township 14 North, Range 4 West, Yavapai County, Arizona. Ehle's was an original application. The company's application was to have its lease of said section renewed for another five-year term. The land department, through its commissioner, awarded a lease of the E1/2 and SE1/4SW1/4 of such section to Ehle, and the rest of the section to the company. On appeal by the company to the land department from the commissioner's decision, the latter's holding was approved and confirmed. Thereafter the company took the matter into the Superior Court of Yavapai County, where it was tried by the court de novo and decided in favor of the company and against Ehle. From such decision the latter has appealed to this court.
One of the findings of the trial court was as follows:
"... that the said decision of the State Land Department of the State of Arizona is without support of the evidence, is contrary to the evidence, is the result of misapplication of the law to the facts shown by the evidence, and constitutes an abuse of discretion of said Department, and said decision should be reversed, and said lease should be issued to appellant (Tenney Trading Company)."
If this finding is supported by the evidence, the decision of the court should not be disturbed. While the trial court tries lease cases de novo, in Manning v. Perry, 48 Ariz. 425, 62 P.2d 693, we declared the rule to be that the decision of the land department should be accepted by the court, unless unsupported by or contrary to the evidence, or the result of fraud, or misapplication of the law, and we think that rule [56 Ariz. 244] should be adhered to. The question, then, is, Does the record support the court's finding?
Section 21 has been a part of a grazing unit for a great number of years. In 1930 N. O. Tenney took over this grazing unit from its previous owner by purchase of several quarter sections of patented land and assignments of leases of state land, including Section 21, and he and the present appellee (whose stock he owns) have held the lease of Section 21 continuously since and have at no time defaulted in the payment of the stipulated rental. Appellee and its predecessor in interest acquired such unit of grazing land for a goat ranch and immediately moved thereon some 2,000 head of goats, and ever since such section has been used as a part of appellee's grazing range. When appellee acquired such range, or soon thereafter, it added four strands of barbed wire to the fence then enclosing it, so that it had an eight strand barbed-wire fence. Appellee constructed a tank to impound rain water on said section and otherwise improved it and other portions of its lands and possessions for the successful operation of a goat ranch. Its herds were increased to 2,500 head, which, together with the lands owned and leased from the state, are estimated to be of the value of $20,000.
The appellant, a widow, with her then husband, settled on the SE1/4 of Section 28 in said township and range in 1907, and thereafter her husband received a patent for such quarter section from the United States. In 1914 she and her husband were divorced and this quarter section passed one-half to her and one-half to their children. Appellant has made this place her home all the years. She has a lease from the state of the W1/2 of Section 28. The NE1/4 of such section is owned by a man by the name of Delke.
In asking to lease Section 21 from the state, appellant seeks to enlarge her grazing area for a small herd [56 Ariz. 245] of cattle she owns, in number about 125. She has never used said section heretofore for grazing purposes and her application now is an original one. She has no improvements thereon and has never had, and if she is given the lease appellee's range would be divided and reduced in value as a grazing unit.
Appellant contends she has a preferential right to the lease on the ground that her homestead is contiguous to it. Section 2965, Revised Code of 1928, gives to any person residing upon land contiguous to that he ...