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before any rights of the appellant had been initiated. The Appellant secured the approval of his application form the State Engineer, Nov. 24, 1908

Going to the question of whether the Commissioner could now in 1936, undertake to so modify or amend the contract of appellee and at the same time convey or dispose of any portion of such public lands as was attempted in his order so set aside by the trial court, we come to a consideration of other factors. We noticed in Lea County Water Co. v. Reeves, 43 N. M. 221, 89 p. 2d 607, that provision was made by Chap.82 of the laws of 1912, (sec.132-154, supra) for granting of right-of-way and easements by the commissioner over state landes when we held that the holder of the grazing lease took subject to this paramount right. This section reads:

"The commissioner may grant rights-of-way and easements over, upon or across state lands for public highways, railroads, tramways, telegraph, telephone and power lines, irrigation works, mining, logging and for other purposes, upon payment by the grantee or grantees of the price fixed by the commissioner, which shall not be less than the minimum price for the lands used, as fixed by law."

Unless Chap.49 Laws of 1907 gave it, it is difficult to understand how it can be said that appellants could claim the right to use or own the land in question or right- of way thereupon without complying with the clear mandate of this statue, which is in line with the requirement of the Enabling Act. that a price must be paid therefor.

Appellee points out that Sec.36,within the boundaries of which the land in question lies, was ,with certain other sections in each township, confirmed to the state of New Mexico by Sec.10 of the ENabling Act as a trust for the particular benefit of the common school fund, and that the Commissioner is therefore prohibited from disposing of such lands in whole or in part in any manner other than as provided by such Enabling At. The act sets up the trust, provides for the disposition of these lands only in the manner provided by the Act, confines the disposition thereof "by

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