POWERS OF BOARD OF STATE LAND COMMISSIONERS WITH REGARD TO TRESPASSES

POWERS OF BOARD OF STATE LAND COMMISSIONERS WITH REGARD TO TRESPASSES

The Board of State Land Commissioners has no function in regard to trespasses.

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                                                               September 5, 1951

Honorable Earl Coe
Secretary of State
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 117

Dear Sir:

            This has further reference to our Opinion to you dated August 27, 1951 [[Opinion No. 51-53-108]], relative to the powers of the State Board of Land Commissioners to investigate trespasses.  At the meeting of the Board of State Land Commissioners held August 28th, certain sections of the statutes were cited as bearing upon right of the Board to investigate trespasses and this office was requested to review our Opinion of August 27 in the light of these references.  The sections referred to have been reexamined since the meeting of the Board with the result that we adhere to the conclusions arrived at in our previous Opinion.

                                                                     ANALYSIS

            One of the sections referred to was section 38 of chapter 255, Laws of 1927 (Rem. Rev. Stat. 7797-38) which reads:

            "For the purpose of determining the value and character of lands, timber, fallen timber, stone, gravel, or other valuable material, or improvements, the board of state land commissioners, or the commissioner of public lands, as the case may be, may compel the attendance of witnesses by subpoena, at such place as the board, or the commissioner, may designate, and examine such witnesses under oath as to the value and character of such lands, or materials, or improvements and waste or damage to the land."

             [[Orig. Op. Page 2]]

            The argument was advanced that the last sentence authorized an investigation into trespasses since it refers to waste and damage to the land.  It should be noted, however, that the entire section is prefaced by the words "for the purpose of determining the value and character of the lands."  This must be read in conjunction with the powers of the board as specified in other portions of the statutes.

            By section 23, chapter 255, Laws of 1927 (Rem. Rev. Stat. 7797-23) the Board of State Land Commissioners is required to fix the value per acre of each lot, block, subdivision or tract of educational land proposed to be sold.  By section 34, chapter 255, Laws of 1927 (Rem. Rev. Stat. 7797-34) before any state lands are offered for sale they must be appraised by the land commissioner whose appraisal must take into consideration damages and waste committed or suffered upon such lands by the cutting or removal of timber.  This is, of course, an element in determining the value of the land and it must be obvious that the reference to waste and damage to land in section 38, chapter 255, Laws of 1927 has reference to the power of the board to fix the value of educational lands about to be sold.  That is the only function which is given them by statute with reference to determining value and character of lands.  Consequently, section 38 relates to their power to fix land values pursuant to the duty imposed upon them by section 23 and carries no inference that the board has any duties with respect to trespasses.

            Another section referred to is section 195, chapter 255, Laws of 1927 (Rem. Rev. Stat. 7797-195).  That section reads:

            "The board of state land commissioners, or the commissioner of public lands, may review and reconsider any of its, or his, official acts relating to the public lands of the state until such time as a lease, contract or deed shall have been made, executed and finally issued, and the commissioner of public lands may recall any lease, contract or deed issued for the purpose of correcting mistakes or errors, or supplying omissions."

            This section relates solely to leases, contracts or deeds not finally executed or bearing mistakes.  It has no reference to trespasses committed without right or authority from the state.

            Reference was made at the meeting to the effect of chapter 115, Laws of 1935, upon the powers of the State Board of Land Commissioners to investigate trespasses.  Chapter 115, Laws of 1935, in section 1, contains the following language:

             [[Orig. Op. Page 3]]

            "Chapter LXXXIX (89) of the Laws of 1897, pages 229 to 263, except section 11 thereof, pages 235 to 236, as amended by section 2 of chapter 223 of the Laws of 1909, pages 758 to 760; * * * are hereby repealed:  * * *"

            A reference to chapter 89, Laws of 1897, will show that the portion excepted from the repeal did not include section 64, which is carried by Remington's Revised Statutes as section 7806.  Consequently, chapter 115, Laws of 1935, specifically repealed section 7806 of Remington's Revised Statutes.  This repealing statute was overlooked by the compiler of Remington's Code, and the code shows section 64, chapter 89, Laws of 1897 as still in force.  By chapter 115, Laws of 1935, however, it was specifically repealed.  The same matter was carried in section 99, chapter 178, Laws of 1895.  The compiler of Remington's Revised Statutes also refers to that section as a basis for section 7806.  However, chapter 89, Laws of 1897, in section 70, contains the following.

            "* * * An act entitled 'An act to provide for the selection, survey, management, lease and disposition of the state's granted, tide, oyster and other lands, harbor areas, and for the confirmation and completion of the several grants to the state by the United States, creating a board of state land commissioners, defining their duties, and authorizing them to act as the commission provided for in article xv of the state constitution, and declaring an emergency,' approved March 26, 1895; * * * are hereby expressly repealed; * * *"

            The title set out in this repealing section is the title of chapter 178, Laws of 1895.  Since the whole of that chapter was repealed there is no unrepealed statute which can be the basis of section 7806 of Remington's Revised Statutes. There is, therefore, no effective statute specifically authorizing the Board of Land Commissioners to investigate and prosecute trespasses.

Very truly yours,

SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General