dissenting.
I respectfully dissent.
Once it is conceded, as it is in the majority opinion, that title to school grant lands never can be acquired by adverse possession as against the State, the language of Section 15-06-01, N.D.C.C., stating that original grant lands which have been sold on contract “shall retain their character as *185such grant lands until the contract has been paid up and a patent issued therefor,” precludes the result reached by the majority opinion. The majority opinion labors mightily to reach a conclusion that the language does not mean what it says and that the purpose of its enactment was not to overcome the decision in School District No. 109 of Walsh County v. Hefta, 35 N.D. 637, 160 N.W. 1005 (1917).1 But that is exactly the effect of that language. When the wording of a statute is free and clear of all ambiguity, we do not disregard the letter of the statute under the pretext of pursuing its spirit. Section 1-02-05, N.D. C.C. See, e.g., Quist v. Best Western Intern., Inc., 354 N.W.2d 656 (N.D.1984).
Furthermore, if we were to conclude that the statute is ambiguous and therefore subject to construction, the construction placed upon it by the majority appears to be unduly restrictive and without factual basis. Although the interpretation placed upon the statute by the majority opinion may permit a more equitable result than adherence to the language of the statute would allow, that equitable result is one which should be sought by legislative action rather than by judicial gloss.
Finally, many of the cases of other jurisdictions involving this issue, including those cited in the majority opinion, do not involve statutes such as Section 15-06-01, N.D.C.C. Rather, they are concerned with the distinction between bare legal title, which remains in the State until the patent is issued, and equitable title, which vests in the purchaser. But that is exactly the subject of the last sentence of Section 15-06-01, N.D.C.C., when it states that the lands sold on contract “retain their character” as grant lands until the contract is paid up and the patent is issued.
In Hellerud v. Hauck, 52 Idaho 226, 13 P.2d 1099 (1932), referred to but apparently not relied upon in the majority opinion, the Idaho court, while stating the better-reasoned rule is that the actual issuance of the patent or deed is not necessary to start the running of the adverse-possession statute against a purchaser of lands from the State, and that it begins to run when the full equitable title rests in the grantee and all that remains to be done is to transfer the legal title, did not apply that rule in that case. Another Idaho statute made it a crime to use or occupy State lands without a lease from the State, and in Hellerud the party claiming the land by adverse possession had no lease from the State. Therefore, the Idaho court refused to enforce a right based upon a violation of the law. Similar provisions prohibiting trespass on lands subject to the control of the Board of University and School Lands are found in Sections 15-08-20 through 15-08-24, N.D. C.C.
The Idaho court further held that the illegality of the adverse possession need not be pleaded but when it appears the court will sua sponte decline to grant relief. The Idaho court indicated that the test is whether or not the party claiming title by adverse possession requires the aid of an illegal transaction to sustain his case. If he does, the claim will not be enforced in a suit in equity or at law.
Although the significance of the North Dakota statutes prohibiting trespass on lands controlled by the Board of University and School Lands was neither briefed nor argued, they only reaffirm my reading of Section 15-06-01, N.D.C.C.
I would affirm the judgment of the district court.
ERICKSTAD, C.J., concurs.. Interestingly enough, despite the fact that there were constitutional provisions involving these lands not only in North Dakota but also in other western and midwestern States, the opinion in Hefta cites absolutely no authority — no constitutional provision, statute, case, treatise, nor encyclopedia — in support of its conclusion.