(dissenting:)
I cannat concur in the opinion of the Court. While it is true the deed from Harbert, and others to the Board of Education, grants the land “for the purpose of building a school house on the same for the benefit of the free schools,” the deed is in all respects a grant in fee, for valuable consideration, with covenants of general warranty, and without reservation or limitation. These *775words of the grant are merely descriptive of the purposes for which the land was purchased, not a limitation upon the power of alienation incident to ownership. — the jus disponendi. TJnder no circumstances could the land ever revert to the grantor.
Section 1621, Code 1906, provides that “boards of education shall hereafter, whenever practicable* obtain a general warranty deed for all school house sitesthat such boards might acquire all the rights incident to such ownership. The deed referred to is such a deed, although acquired prior to the time this provision became a part of section 1621.
With good indefeasible fee simple title thus invested in said board if authorized by law, can there be any question as to its right of sale or other disposition of the property ? The only provision of the statute having application to the subject I think, is contained in section 1567, Code 1906, which is: “Said board shall receive, hold and dispose of according to the rules of law and the intent of the instrument conferring title, any gift, grant, devise or bequest, made for the use of any free school or schools under their jurisdiction; and without any transfer or conveyance, shall be deemed the owner of the real and personal property in their district, and the property of the former township or district, for which their district was substituted.” It will be observed that this law not only gives right to hold but also to dispose of property acquired by such board. In the language of the Supreme Court of the United States, “the expression To dispose of’ is very broad and signifies more than To sell.’ Selling is but one mode of disposing of property.” Phelps v. Harris, 101 U. S. 370. And again: “When a contract respecting property contains an agreement to be performed by the owner of it when he shall ‘dispose of or sell it/ it is obvious that the words ‘dispose of’ are not synonymous with the word ‘sell/ and their meaning must be determined by considering the remainder of the contract.” Hill v. Sumner, 132 U. S. 118. In United States v. Gratiot, 35 U. S. 526, the same court held that Article 4, section 3, of the federal constitution, which provides that Congress shall have power to dispose of and malee all legal rules and regulations respecting the territory or other property belonging to the United States, not only vests in Congress the right to sell the lands belonging to the United States, but also to lease the *776same. In this case, a lease by the President under regulations provided by Congress authorizing him to chispóse of the lands of the United States, was held valid. Many other cases might be cited where these words, as used in legislative grants, deeds, wills and other contracts have been given like construction. 3 Words & Phrases, 2114.
Having title, and power of disposition, and in the language of the statute “deemed the owner of the real and personal property of their district,” can it be possible that a board of education, because it is a board is so surrounded by legal barriers, and limitations on its powers that it cannot lawfully preserve the property of which it is so possessed, and to which it is entitled. To so hold would be inconsistent with every rule and right of property and render it practically powerless to preserve the most valuable part of the property from encroachment by adjoining owners. In the resolution of the board authorizing the lease involved here, it is recited, that the lands immediately adjoining said lot are being drilled and operated for oil and gas, some of the wells being productive of oil and gas; that a well was then being drilled, very near the line of said lot; that said school house lot in all probability is underlaid with oil and gas, which will likely be exhaused and taken away through wells drilled and being drilled on adjacent land to the damage and loss of said board of education and tax payers of said district, unless their interests are protected; that in the judgment of said board it will promote the interests of the citizens and tax payers of said district to have said lot drilled and operated for oil and gas upon the usual terms upon which such lands are usually operated. Here, we must assume is a rich and valuable mine underlying this school house lot. If oil and gas exist there it is as much the property of the owners of the soil, as the earth, rock, or any other mineral or mineral substance existing there. Is the school board to stand by with its hands tied, powerless to protect the public properly in its keeping and allow adjoining owners and lessees to drain the public land of this valuable product? The statute has imposed no such limitation upon its powers. Suppose in place of oil, it was a stone quarry, or a gold mine, or timber, or some other product of the land, would not this board on the principles of the opinion be powerless to utilize the wealth thus found *777imbeded in the public land? It certainly -would be. I think the statute not only expressly but impliedly gives- this board ample power to lease this property. This ought especially to be so where the product, as in this case, is oil and gas, fugitive in nature and which will be drained and carried away by operations - ■on adjoining lands.
It is unnecessary to go into any general discussion of the authorities discussed in the opinion, on the proposition that boards of education, and other municipal or quasi municipal and public ■corporations, cannot enter on enterprises, or engage in business outside of the scope of their authority, or divert the public property to private use. The controlling question here is, had this board the power to preserve the public property, invested in it, from deportation and spoliation by others? I think there can be no question that it had such power. If we regard the oil and gas surplus property, not needed for school purposes, and proper to be disposed of and the money covered into the proper fund, section 1621, Code 1906, would seem to give ample authority therefor. True that section says the disposition of such surplus property shall be with the consent of the county superintendent. If his consent is necessary in a case like this the bill makes no. allegation that such consent was not obtained.
Many authorities hold that a municipal corporation may lease rooms in public buildings, not occupied or necessary to be occupied, for municipal purposes. Worden v. New Bedford, 131 Mass. 23. And this Court has held in Bryant v. Logan, 56 W. Va. 141, that a municipality without infraction of its municipal powers might lawfully lease and let to private individuals a large portion of a public park for horse racing purposes, to the exclusion of the public in general. If public property may be thus diverted by municipal authority why, upon like principles, under the circumstances here disclosed may not the power given to dispose of public property be exercised for the preservation thereof? The authority to do so, I think is expressly given by the statute. Eor these reasons I must withhold my concurrence in the opinion.