Dissenting. — I cannot agree with the conclusions reached by my associates in this ease, because, in my opinion, the identical question involved has been squarely *710passed upon, and rightly so, by this court, in the case of Tobey v. Bridgewood, 22 Ida. 566, 127 Pac. 178.
The complaint in this case, among other things, alleges: “That the plaintiff is now, and for a long time hitherto has been, the owner, in the possession of, and entitled to the possession of that certain lot, piece or-parcel of land situate, lying and being in the county of Ada and state of Idaho, and bounded and described as follows, to wit.” Then follows a description of the particular piece or parcel of land by metes and bounds containing 2.86 acres more or less. The complaint continues:
“That the said defendant claims an estate or interest therein, adverse to the said plaintiff.
‘ ‘ That the claim of the said defendant is without any right whatever, and that the said -defendant has pot any estate, right, title or interest whatever in said land or premises or any part thereof.”
Then follows the prayer, wherein the plaintiff asks:
“That the defendant -may be required to set forth the' nature of his claim, and that all adverse claims of the defendant may be determined by the decree of this court.
“That, by said decree, it be declared and adjudged that the defendant has no estate or interest whatever in or to said land and premises; and that the title of plaintiff is good and valid.
“That the defendant be forever enjoined and debarred from asserting any claim whatever in or to said land and premises, adverse to the plaintiff, and that the plaintiff have such other relief as to this honorable court shall seem meet and agreeable to equity, together with the costs of suit.”
The defendant answered, and also filed a cross-complaint, in which he admits the formal allegations of the plaintiff’s complaint, that is to say, that the plaintiff is a corporation duly organized and existing under and by virtue of the laws of the state of Idaho, with its principal place of business at Boise, Idaho; but denies that the plaintiff is now, or ever has been, the owner, in the possession of, or entitled to that certain lot, piece or parcel of land, or any part thereof described in the plaintiff’s complaint, being the land heretofore referred *711to. And alleges that he, the said defendant, is the owner of said property above referred to; and denies that his claim to the ownership of said property is without any right, or that he has no estate, right, title or interest in and to said land or premises, or any part thereof.
In his cross-complaint he alleges:
“That he is the owner of, and entitled to the possession of the SE. % °f NE. % of section 36, Twp. 3 N., R. 1 W., B. M., and that he bases his title upon a sale certificate numbered 5028 from the state of Idaho to J. N. Kerr, which said certificate was duly assigned to this defendant and cross-complainant.
“That the plaintiff claims an estate or interest therein adverse to the said defendant and cross-complainant.
‘ ‘ That the claim of said plaintiff is without any right whatever, and that the said plaintiff has not any estate, right, title or interest whatever in said land or premises, or any part thereof.”
And the defendant prays:
“That he be dismissed hence without day as to said complaint, and recover his costs in this behalf sustained.
11 That the plaintiff may be required to set forth the matter of his claim, and that all adverse claims of said plaintiff may be determined by decree of this court.
1 ‘ That by said decree it be declared and adjudged that the plaintiff has no estáte or interest whatever in or to said land and premises, and that the title of the said cross-complainant is good and valid.
“That the plaintiff be forever enjoined and debarred from asserting any claim whatever in or to said land and premises adverse to the defendant and cross-complainant, and that the cross-complainant have such other and further relief as to the court may seem just and equitable, together with the costs of this action.”
Upon the issues thus raised a stipulation of the facts was made by counsel for the respective parties, which is as follows:
“It is hereby stipulated by and between the attorneys for the respective parties in the above-entitled action that the following facts therein are true:
*712“On the 26th day of April, 1912, O. O. Haga, made application to the State Board of Land Commissioners of the State of Idaho for the sale of the NE. 14 of Sec. 36, Twp. 3 N„ R. 1 W., B. M., all of said land being situate in Ada County, Idaho.
“That pursuant to such application the said State Board of Land Commissioners caused the land above set forth to be appraised, and said land was found by such appraisement to be of the value following, tó wit, $25.00, per acre.
“That thereafter the said State Board of Land Commissioners caused said land to be advertised for sale' by publishing a notice thereof in the Idaho Weekly Statesman, a weekly paper published in Boise, Ada County, Idaho, said paper being published in the same county in which the land is situate, and a copy of which said publication is annexed hereto as Exhibit ‘A,’ and made a part hereof for a more particular statement of the matters and things appearing therein.
“That pursuant to such notice of sale the said land was offered at auction at the Courthouse at Boise, Idaho, on the 16th day of September, 1912, and J. N. Kerr, a citizen of the United States, being the highest and best bidder therefor, became the purchaser of the SE. 14 NE. 14 of Sec. 36, T. 3 N., R. 1 W., B. M., and received Sale Certificate No. 5028.
“That thereafter and prior to the commencement of this action the said J. N. Kerr duly assigned all his right, interest and estate in and to said land last above described, under and by virtue of said Sale Certificate No. 5028 to C. C. Fisher, the defendant herein.
“That all the proceedings necessary for the sale of the above-described land were regular and substantially conformed to the statutes of the State of Idaho in such eases made and provided.
“That all payments which have been due or become due under said sale certificate No. 5028 have been made by the defendant herein, C. C. Fisher, or his predecessors in interest, and no forfeiture of said sale certificate has ever been declared by the State Board of Land Commissioners of Idaho.
*713“That the plaintiff is now and at all the times mentioned in the complaint herein, was a corporation duly organized and existing under and by virtue of the laws of the State of Idaho, with its principal place of business at Boise, Idaho.
“That on or about the 21st day of September, 1903, the plaintiff, for the purpose of constructing a reservoir to store water for the irrigation of arid lands within Ada County, Idaho, filed in the office of the State Engineer of the State of Idaho a map showing the location of the land necessary for the purpose of such reservoir by an accurate survey of said reservoir, such map being on tracing linen on a scale of not less than 1,000 feet to the inch, and was accompanied by field-notes of such survey of such reservoir. Said map showed by contour lines at intervals, not greater than ten feet, the topographic features of such reservoir site, the capacity of such proposed reservoir in acre-feet and said company filed plans showing the construction of the same required for such reservoir, said map, plans and field-notes were certified by the Engineer under whose direction such survey and plans were made; said map, plans and field-notes were approved by the State Engineer of the State of Idaho, on the 22d day of September, 1903.
“That the land described in paragraph two of the complaint herein is the identical land proposed to be taken by said company for reservoir purposes, and is the land described in the application and map above referred to, and is necessary for the construction of said reservoir, and ever since the completion of said reservoir said land has been necessarily used for such reservoir.”
The trial court made findings of fact from which, omitting the formal parts and avoiding a repetition of some of the facts heretofore referred to in the complaint of the plaintiff and in the answer and cross-complaint of the defendant, as well as in the stipulation of counsel, we have extracted the following:
“That on or about the 21st day of September, 1903, the plaintiff for the purpose of constructing a reservoir to store water for the irrigation of arid land within Ada County, Idaho, filed in the office of the State Engineer of the State *714of Idaho a map showing the location of land necessary for the purpose of such reservoir by an accurate survey of said .reservoir, such map being on tracing linen.....Said map, plans and field-notes were certified by the engineer under whose direction such surveys and plans were made; said map, plans and field-notes were approved by the State Engineer of the State of Idaho, on the 22d day of September, 1903.....
“That the plaintiff did hot make application to the State Board of Land Commissioners of the State of Idaho for the sale of the lands proposed to be taken by said company for reservoir purposes; that no appraisal of said land was made, and that no sale of said land was advertised or made at public auction or otherwise. That the plaintiff did not pay any consideration to the State of Idaho for said lands or the right to use the same for reservoir purposes or at all. That the only proceedings or actions on the part of the said plaintiff to procure a right to use said land for reservoir purposes was the filing of said map, plans and field-notes in the office of the State Engineer of the State of Idaho.....
“That on the 26th day of April, 1912, O. O. Haga made application to the State Board of Land Commissioners of the State of Idaho for the sale of the NE. ^ of Sec. 36, Twp. 3 N., R. 1 W., B. M., all of said land being situate in Ada County, Idaho.
‘ ‘ That pursuant to such application the said State Board of Land Commissioners caused the land above set forth to be appraised, and such land was found by said appraisement to be of the value of Twenty-five Dollars ($25.00) per acre.
“That thereafter the said State Board of Land Commissioners caused said land to be advertised for sale by publishing a notice thereof in the Idaho Weekly Statesman, ....
“That pursuant to such notice of sale, the said land was offered at public auction in the courthouse at Boise, Idaho, on the 16th day of September, 1912, and J. N. Kerr, a citizen of the United States, being the highest and best bidder therefor became the purchaser of the SE. 14 of NE. y± of Sec. 36, Twp. 3 North, Range 1 West, B. M., and received sale certificate No. 5028.
*715“That thereafter, and prior to the commencement of this action, the said J. N. Kerr, duly assigned all his right, interest and estate in and to said land, above described, under and by virtue of said sale certificate No. 5028, to C. C. Fisher, the defendant herein.
“That all the proceedings necessary for the sale of the above-described land were regular and substantially conformed to the statutes of the State of Idaho in such cases made and provided.
“That all payments which have been due, or become due, under said sale certificate No. 5028, have been made by the defendant herein, C. ,C. Fisher, or his predecessor in interest, and no forfeiture of said sale certificate has ever been declared by the State Board of Land Commissioners of the State of Idaho.”
In its conclusions of law from the foregoing facts, the court held:
“That the defendant, C. C. Fisher, is the owner of and entitled to the possession of the land described in paragraph II of the complaint as against plaintiff herein, and that the said defendant C. C. Fisher, is the holder of a valid certificate of sale for the said land from the State of Idaho. ’ ’
From the foregoing recitals the issues between the parties can properly be said to resolve themselves into two propositions; First, the rights of the defendant, if any he has, are based upon a certificate of purchase of the land in question in accordance with the statutes of this state providing for the sale of state lands; second, the plaintiff and appellant bases its rights and title to the land in question upon the filing in the office of the state engineer on September 21, 1903, of a map in accordance with the provisions of sec. 8, House Bill 134, Sess. Laws of 1901, page 199, which statute provides for the acquiring of a reservoir site upon state lands.
It might be conceded, for the purpose of disposing of this case, that the plaintiff and appellant fully complied with all of the provisions of the aforesaid act; and it is not disputed that the defendant and his predecessor in interest received by purchase from the state whatever title the state had to *716convey at the date of the sale of the lands above described, to wit, September 6, 1912. But could plaintiff, by a full compliance with sec. 8, House Bill 134, Sess. Laws, 1901, p. 199, obtain title to the land in question, or a perpetual easement thereon, for a reservoir site ? I think not.
Sec. 4 of the Idaho Admission Bill, found at page 54, vol. 1, Rev. Codes, provides:
“That sections numbered 16 and 36 in every township of said State, and where such sections or any parts thereof, have been sold or otherwise disposed of by or under the authority of any Act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one-quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said State for the support of common schools, such indemnity lands to be selected within said State in such manner as the Legislature may provide, with the approval of the Secretary of the Interior.”
Section 5 of that act, on same page, provides:
“That all lands herein granted for educational purposes shall be disposed of only at public sale, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulations as the Legislature shall prescribe, be leased for periods of not more than five years, and such lands shall not be subject to pre-emption, homestead entry, or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only.”
Sec. 8, art. 9 of the Idaho constitution, provides:
“It shall be the duty of the State Board of Land Commissioners to provide for the location, protection, sale or rental of all the lands heretofore, or which may hereafter be, granted to the State by the general government, under such regulations as may be prescribed by law, and in such manner as will secure the maximum possible amount therefor: Provided, That no school lands shall be sold for less than ten (10) dollars per acre. No law shall ever be passed by the Legislature granting any privileges to persons who may have settled upon *717any such public lands, subsequent to the survey thereof by the general government, by which the amount to be derived by the sale, or other disposition of such lands, shall be diminished, directly or indirectly. The Legislature shall, at the earliest practicable period, provide by law that the general grants of land made by Congress to the State shall be judiciously located and carefully preserved and held in trust, subject to disposal at public auction for the use and benefit of the respective objects for which said grants of lands were made, and the Legislature shall provide for the sale of said lands from time to time and for the sale of timber on all State lands and for the faithful application of the proceeds thereof in accordance with the terms of said grants: Provided, that not to exceed twenty-five sections of school lands shall be sold in any one year, and to be sold in subdivisions of not to exceed one hundred and sixty (160) acres to any one individual, company or corporation.”
Sec. 11, Idaho Admission Bill, supra, after enumerating the various grants made- by Congress to the state for the establishment and maintenance of a scientific school, normal schools and various other institutions, provides that “None of the lands granted by this act shall be sold for less than $10 an acre.”
The Sess. Laws of 1901, p. 199, under which plaintiff and appellant claims to have initiated its right to the state land in question, were amended by the Sess. Laws of 1907, p. 527. But upon investigation, it will be found that the only material change made by the amendment of 1907 was that the act required compensation for state lands for reservoir purpose> or rights of way, etc., of at least ten dollars an acre; whereas, the 1901 Session Laws made no such requirement, and, as plaintiff and appellant contends, the necessary estate in the land was granted free upon compliance with the statute in the filing of maps in the office of the state engineer, etc.
I take the position that sec. 8, House Bill 134, Sess. Laws, 1901, p. 199, was in contravention of sec, 8, art. 9 of the constitution, and was, therefore, void. And this court held in Tobey v. Bridgewood, 22 Ida. 566, 127 Pac. 178, that the *718amendment to said section 8 of the 1901 Sess. Laws, contained in the Sess. Laws 1907, p. 527, was void. Consequently all the proceedings pursued in accordance with sec. 8, House Bill 134, supra, by the plaintiff and appellant, in order to secure a permanent right to the reservoir site involved in this litigation were without any force or effect.
In the case of Tobey v. Bridgewood, supra, Tobey received from the state board of land commissioners, after payment of the necessary amount of money, a deed to certain state land to be used as a reservoir site under the provisions of said Session. Laws of 1907, supra. The negotiations between Tobey and the land board consisted simply of an application on the part of Tobey, payment by him of $87.20, and the issuance of a deed by the board; no advertisement or other notice of sale having been given, and the sale not having been made at public auction. The question presented to the court was: What title, if any, did Tobey receive by such proceedings? The act of 1907 expressly provides that the state board of land commissioners, upon compliance with the terms of the act, might grant land for reservoir sites, rights of way, etc. The authority of the state board of land commissioners, under said act, to make a deed of conveyance of state lands to an individual for reservoir site, without such land being obtained by purchase at public auction, was directly involved. This court at that time, in construing sec. 8, art. 9 of the constitution, among other things, said:
“These constitutional provisions provide who shall constitute the state board of land commissioners, and the power and authority vested in said board, in granting such board the direction, control and disposition of the public lands of the state, under such regulation as may be prescribed by law; it is also provided in said section 8 that the legislature shall, ‘at the earliest practicable period, provide by law that the general grants of land made by Congress to the state shall be judiciously located and carefully preserved and held in trust, subject to disposal at public auction for the use and benefit of the respective objects for which sand grants of land were *719made, and the legislature shall provide for the sale of said lands from time to time.’ ”
The general grants of land by Congress to the state are held in trust, subject to disposal at public auction. This being true, the legislature is prohibited from.' enacting any law which provides for the disposition of lands granted to the state by an act of Congress in any other manner than as expressly provided in the act of admission and in the. constitution; that is, by sale at public auction. The state board of land commissioners may lease any portion of the state land at a certain fixed rental and for a specified time, but it is not authorized, under the constitution or statutes of this state, to impair the title to state lands as was done in this case.
I am of the opinion that it was never intended by the legislature to provide for a method or system of disposing of or encumbering lands belonging to the state; or to permit the right to enter upon state lands or occupy the same for the purpose or use as a reservoir, or for any other purpose, except such right is obtained under the provisions of the constitution and the statutory laws of this state. The constitution and laws of this state absolutely prohibit the state board of land commissioners to dispose of the state lands in any other way than by sale at public auction, or by leasing them for a period of not to exceed five years.
It is argued in this case, as it was in the Tobey v. Bridgewood case, “that if the power of the state board of land commissioners is limited by the constitution and the statute to the disposition of state lands by lease and sale only, it will annul the action of the state land board in many transactions that have been made in the state in relation to the granting of easements for ditches and also the disposal of state lands for reservoir and power sites and other public works, . . . . it will retard and prevent the development of many industries in this state and the construction of works and improvements which contribute to the development and improvement of the lands, not only of this state, but likewise the lands that may be settled upon or improved under the laws *720of the United States.....As announced by this court in the case of Pike v. State Land Board, supra [19 Ida. 268, Ann. Cas. 1912B, 1344, 113 Pac. 447] : ‘ As a matter of policy and business expediency this argument might appeal to the board, but it cannot be considered by this court.’ .... The question of policy and business expediency which may have been pursued by the state board in the past, and which might be pursued in the future, should not control or guide this court in upholding and sustaining a policy, where such policy is absolutely prohibited by the provisions of the constitution and the laws of this state.”
It is concluded in the majority opinion of this court that not a fee-simple title to the state lands in question, but only a right to the use of the same for reservoir purposes, is conveyed to the plaintiff and appellant; and, therefore, the constitutional provision above quoted and the statutes cited do not apply. In my opinion there is no merit in this conclusion. Sec. 5211, Rev. Codes, contains a classification of the estates and rights in lands subject to be taken for public use. The first subdivision is as follows:
“1. A fee-simple, when taken for public buildings or grounds, or for permanent buildings, for reservoirs and dams and permanent flooding occasioned thereby, ox for an outlet for a flow, or a place for the deposit of debris or tailings of a mine
The taking of the state land in question for reservoir purposes is in effect and under the above-quoted statute the acquiring of a fee-simple title to said lands, and it is not the creation of an easement only.
The state board of land commissioners has no authority, under the constitution, to impair the title to state lands; but, on the contrary, it is their duty “to provide for the location, protection, sale or rental of all the lands heretofore, or which may hereafter be, granted to the State by the general government, under such regulations as may be prescribed by law, and in such manner as will secure the maximum possible amount therefor. ’ ’ In the case at bar, the plaintiff and appellant made the state no compensation for the land in *721question, but it became entitled to tbe possession of the same for reservoir purposes by a gift. If it is within the power of the state board of land commissioners to give away even this small amount of state land, there is no reason in principle why, for the same or like purposes, that board could not give away as much of the state lands as may be applied for; and thereby defeat the very purpose and object of the constitution and statutes in this, that instead of securing the maximum possible amount for state lands, they would receive no compensation at all for the same. This court held in the case of Balderston v. Brady, 17 Ida. 567, 579, 107 Pac. 493, that “Any gift of school or other state lands or relinquishment of the state’s title is in violation of the fundamental laws of the state and would be void.”
The question of eminent domain is not involved in this case. The plaintiff and appellant did not seek to condemn the land in question for a reservoir site. Therefore, a discussion of that question is outside of this ease and wholly immaterial to a determination of the issues involved.
The judgment of the trial court should be sustained under the constitution and statutes of this state and the decisions of this court heretofore rendered.