Colorado § 36-1-125 - Reservations of rights on sale.

§ 36-1-125. Reservations of rights on sale.

(1) All sales of state lands shall be held at the state capitol unless otherwise directed by the state board of land commissioners. The state board of land commissioners shall reserve to the state all rights to all minerals, ores, and metals of any kind and character, and all coal, asphaltum, oil, gas, or other like substances in or under such land, and all geothermal resources and the right of ingress and egress for the purpose of mining, together with enough of the surface of the same as may be necessary for the proper and convenient working of such minerals and substances.

(2) All patents and certificates of purchase on state or school lands issued before March 31, 1919, and in which a reservation of rights to minerals, ores, and metals of any kind or character whatsoever, or coal, asphaltum, oil, gas, and other like substances, or geothermal resources has been made are validated. The holders of such certificates of purchase or the owners of said lands so patented shall by contract, deed, or other agreement acknowledge or reconvey to the state the minerals and substances so reserved, and the state board of land commissioners is authorized to accept on behalf of the state such deeds and conveyances and to make such agreements as may be necessary to carry out the provisions of this article.

(3) All patents and certificates of purchase issued before March 31, 1919, describing the lands with reference to legal subdivisions shown by the United States official survey, or by lots, blocks, or tracts shown on a recorded plat, or by metes and bounds descriptions, are validated.

Source: L. 19: p. 647, § 18. C.L. § 1171. CSA: C. 134, § 70. L. 49: p. 554, § 5. CRS 53: § 112-3-26. C.R.S. 1963: § 112-3-26. L. 74: (1) amended, p. 314, § 5, effective May 17. L. 77: (1) amended, p. 1622, § 1, effective May 27. L. 97: Entire section amended, p. 844, § 22, effective May 21.

Cross references: For additional provisions concerning the sale of state lands, see article 5 of this title.

ANNOTATION

I. General Consideration.

II. Reservation of Mineral Rights.

I. GENERAL CONSIDERATION.

Law reviews. For article, "The Interest of Landowner and Lessee in Oil and Gas in Colorado", see 25 Rocky Mt. L. Rev. 117 (1953). For article, "Severed Minerals as a Deterrent to Land Development", see 51 Den. L.J. 1 (1974).

Annotator's note. Cases relevant to the subject matter of this section which were decided prior to its earliest source have been included in the annotations to this section.

This section is constitutional. This section applies to sales wherein mineral rights were reserved to the state, is without constitutional objection, and is valid. Miller v. Limon Nat'l Bank, 88 Colo. 373, 296 P. 796 (1931).

This section applies to reservations of "rights to minerals", and has no application to reservations affecting the right of the purchaser to exercise exclusive control over the land. Cronk v. Shoup, 70 Colo. 71, 197 P. 756 (1921).

Transfer of property from state board of land commissioners to other public entity in exchange for land of equivalent value is not a "sale" of property under this section. Sorenson v. Reg'l Transp. Dist., 745 P.2d 1047 (Colo. App. 1987).

The first proviso of this section is meaningless and ineffective. Miller v. Limon Nat'l Bank, 88 Colo. 373, 296 P. 796 (1931); Driscoll v. State, 88 Colo. 390, 297 P. 989 (1931).

Proof of decision as to place of sale need not be shown by the record. If it is necessary as a condition precedent that the board should determine that it was within its discretion to hold the sale in a place other than the state capital, the proof of that fact is not required to be shown by the record. People v. G. H. Hard Land Co., 51 Colo. 260, 117 P. 141 (1911).

Where public land has been regularly sold by the state land board, the purchaser is entitled to a patent therefor executed by the proper officials; mandamus is an appropriate remedy in case of a refusal to execute and deliver the patent. Greenwood Cem. Co. v. Routt, 17 Colo. 156, 28 P. 1125 (1892).

II. RESERVATION OF MINERAL RIGHTS.

Former sales of surface rights are now valid. A sale of surface rights in state lands in 1913, subsequently validated by statute, is as valid and binding as if duly authorized by statute when made. Driscoll v. State, 88 Colo. 390, 297 P. 989 (1931).

Formerly there was no authority to reserve minerals. Under a former statute, where the state land board offered for public sale only the surface of certain lands, reserving the mineral, and this reservation was without authority of law, the application of the purchaser for mandamus to compel the conveyance both of the surface, and all below the surface, was denied, upon the ground that the state land board was without authority to sell the mere surface and, therefore, the whole transaction was void. Gunter v. Walpole, 65 Colo. 234, 176 P. 290 (1918).

Title had to be conveyed in fee simple. Under the former statute (R.S. 1908, § 5185) which contained a provision that such patent should convey a good and sufficient title in fee simple, it was held that the board must convey the land in fee, and that there was nothing in the statute either directly or indirectly authorizing the board to encumber lands sold with any easement, exception, or reservation. Walpole v. State Bd. of Land Comm'rs, 62 Colo. 554, 163 P. 848 (1917).

A right to receive a royalty for coal mined on the land sold may be reserved without destroying the fee, but a certificate of sale containing a provision that "No assignment of the said coal right shall be valid without the consent and approval of the board" conveys title less than the fee and was one the board had no power to grant under the former statute. Cronk v. Shoup, 70 Colo. 71, 197 P. 756 (1921).

Prior to this section, a purchaser of state lands received nothing by a certificate reserving mineral rights in the state. If the validating act granted him any right, it was one he could waive, and when he continued to make payments on certificates of sale of surface rights after the passage of the validating act, and thereafter defaulted in his payments, his contract was subject to cancellation, his payments to forfeiture, and his rights, if any, were waived. Miller v. Limon Nat'l Bank, 88 Colo. 373, 296 P. 796 (1931).

There is no merit to a bill to have reservation adjudged void. Where, prior to this section, a purchaser of state lands bid for only the surface rights, held the certificate of purchase with a clause in it reserving mineral rights, and continued to make payments on such purchase over a period of 13 years, there is no merit in a bill seeking to have the reservation adjudged void and to compel the issuance of a patent without conveyance by the purchaser to the state of the mineral rights so reserved. Driscoll v. State Bd. of Land Comm'rs, 23 F.2d 63 (8th Cir. 1927).

Under earlier law, inclusion in certificate of purchase of reservation to state of mineral rights was a mistake of law, not of fact, and did not invalidate the sale nor entitle the purchaser to recover the purchase price. Bowles v. Miller, 96 Colo. 145, 40 P.2d 243 (1935).