The opinion of the court was delivered by
On the 1st of December, 1899, the commissioner of public lands duly executed to petitioner (relator) a lease of certain described tide lands in King county, for the period of thirty years. A clause was inserted in the lease to the effect that the tide lands described therein should not be offered for sale except upon the application of the lessee, and that he should have the preference right to re-lease or to purchase the lands at
The laws of 1895, p. 544, § 32, provide:
“That no lease shall be so drawn as to interfere with the sale of lands ordered by the board of state land commissioners to be, sold.”
“That lands held under lease shall not be offered for sale or sold except to the lessee, if the lessee shall keep his lease in good standing.”
It is argued by the learned counsel for the petitioner that the later act limits the power to make a sale to the lessee during the term of his lease, if the lease is kept in good standing, and that such provision of the statute authorized the stipulation, inserted in the lease held -by petitioner, “That the tide lands herein shall not be offered for sale except upon application of the lessee, who shall have preference right to re-lease or to purchase at the highest rate bid.” But a careful consideration of the statute does not seem to imply such authority. Without the provision in the statute of 1897, the state might, through its commissioner of public lands, offer leased lands for sale without the consent of the lessee; but the later statute put a limitation upon the right of the state to sell during the continuance of the lease in good standing. This limitation is plainly for the benefit of the lessee. There is no valid reason to infer that the state should limit itself in regard to the sale. Such limitation having been made for the benefit of the lessee alone, there appears no good reason why he was not competent to waive it and apply for the public sale of the tide lots, under the law relative to such sales. Having made such waiver in his application for the sale of the tide lots, the application having been approved, and a sale ordered and regularly consummated, it would seem that the highest bidder at such sale was entitled to the tide lots and to a confirmation of the sale. The restriction made by the statute upon the right to sell during the existence of the lease certainly did not confer authority to insert in the
It is maintained by counsel that petitioner, at any rate, should be deemed to have been misled by the clause in his lease; but it may be suggested that the highest bidder at the sale would also be misled, if, having been invited to bid in competition at a public auction, he could obtain no right to purchase after having attended and made the highest bid. It occurs to us that the court is unable, where all the proceedings have been regular and the sale valid, to relieve the petitioner from his mistake, if such, of thinking he had the controlling right to purchase at the sale. It is therefore concluded that the writ must be denied.
Dunbar, O. I., and Anders and Fullerton, JJ., concur.