Opinion
No. 37472.
Filed June 5, 1970.
1. Public Lands: Landlord and Tenant. The rights of a lessee of school land are determined by the law as it was at the time the lease was made and the lessee may not be deprived of any substantial right resulting from the lease in his favor by subsequent legislation. Likewise, the trustee of public school lands may not convey any interest in such lands without adequate compensation. 2. Statutes: Constitutional Law. An unconstitutional statute is a nullity, is void from its enactment, and is incapable of creating any rights or obligations. 3. Property: Landlord and Tenant. Improvements which become a part of the real estate may not be removed and do not become the property of the lessee in the absence of agreement, express or implied, or a valid statute granting such right. 4. Estoppel: Actions. An estoppel may be urged for the protection of a right, but it can never properly be urged to create a right.
Appeal from the district court for Chase County: JACK H. HENDRIX, Judge. Reversed and remanded with directions.
Clarence A. H. Meyer, Attorney General, and Bernard L. Packett, for appellant.
Russell Colfer, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is an action for a declaratory judgment to determine the ownership of a quonset metal building located on state school land under the management and control of the Board of Educational Lands and Funds of the State of Nebraska and leased to the defendant. The trial court held that the building was owned by the defendant and the plaintiff board has appealed.
On October 18, 1943, the board executed a written lease to Section 36, Township 5 North, Range 36 West of the 6th P.M., in Chase County, Nebraska, to William O. Bardsley for a term of 25 years commencing on January 1, 1944. Upon the death of William O. Bardsley, his widow, Mary Bardsley, became the owner of the lease. Upon the death of the widow, her son, the defendant, became its owner and occupied the school land covered by the lease to the time of the trial of the case. No question is raised as to the validity of defendant's present ownership of the lease.
On or about October 25, 1954, during the period that Mary Bardsley was the owner of the lease, she constructed the quonset building on the school land covered by the lease at a cost of $3,136.55. No permission was asked for or obtained from the board to place the quonset building on the leased school land; nor was there any contractual provision protecting the ownership of the building in the lessee.
The defendant here claims to be the owner of the quonset building. The board asserts that the building was placed on the school land without permission or agreement and that by its permanent attachment to the land it is a part of the school land and owned by the board as trustee of school lands. It is fundamental that the rights of a lessee of school lands are to be determined by the law in effect at the time the lease was made. Pfeifer v. Ableidinger, 166 Neb. 464, 89 N.W.2d 568. A lease between the board and a lessee is property and such a lessee may not be deprived of any substantial right arising from it. Nor may the board as trustee be deprived of its property by subsequent legislation placing burdens upon it which deplete its value.
At the time the school land lease was entered into upon which the quonset building was constructed on the leased school land, section 72-240, R. S. 1943, provided in part: "* * * If the highest bid received shall be made by a person other than the lessee, the value of all the improvements on the land shall be appraised * * *. Improvements to be included in such appraisement shall be all buildings, * * *. The successful bidder, if he be other than the former lessee, shall within thirty days after the filing of the appraisement, pay to the county treasurer the amount of the appraisement." In 1947, section 72-240, R. S. 1943, was amended and the foregoing section carried into section 72-240.06, R.R.S. 1943, in language of the same meaning. In Watkins v. Dodson, 159 Neb. 745, 68 N.W.2d 508, this court determined that section 72-240.06, R.R.S. 1943, was unconstitutional and void for failure to provide due process. It was stated in the opinion: "An unconstitutional statute is a nullity, is void from its enactment, and is incapable of creating any rights or obligations."
It is plain that on the finding of the unconstitutionality of section 72-240.06, R.R.S. 1943, the antecedents of this statute containing the same provisions were also unconstitutional. As a result there was no statute in existence granting an interest in the improvements to the lessee at the time the school land lease was made. Under these circumstances, the rules of the common law apply. 49-101, R.R.S. 1943. "The general rule that improvements which become a part of the real estate may not be removed and do not become the property of the lessee is applicable in the absence of agreement, express or implied, or a statute indicating otherwise." Blomquist v. Board of Educational Lands Funds, 170 Neb. 741, 104 N.W.2d 264. This is the common law rule.
In Jessen v. Blackard, 160 Neb. 557, 71 N.W.2d 100, this court said: "Under these authorities it is clear that the court has a duty of its own to perform. It may not properly grant relief based upon a statute which is nonexistent or one which has become nonexistent by reason of judicial declaration of unconstitutionality by this court whether the question has been raised by the parties or not."
In 1953, section 72-240.07, R.R.S. 1943, was enacted which stated in part: "Before any buildings, * * * are placed upon school lands by a lessee, written approval must be obtained from the Board * * *. Any such improvements placed upon school lands after September 14, 1953, where written approval for such improvements was not obtained from the board shall be considered improvements of the land and the lessee shall not be entitled to reimbursement therefor." Assuming that this statute has application to the case before us, it can afford no comfort to the defendant for the reason that no written approval was obtained from the board by the lessee before placing the quonset building on the school land as the statute requires.
As a consequence of these holdings, the lessee obtained no interest in the quonset building under section 72-240, R. S. 1943, because of its unconstitutionality. Nor could the lessee gain any interest in the quonset building under section 72-240.07, R.R.S. 1943, for failure to comply with the conditions precedent contained in the act purporting to grant such an interest. The trial court was in error in declaring the lessee to be the owner of the quonset building.
While the question of estoppel is not a direct issue in this case, we can find no basis for it under the facts shown by this record. "While the trial court based its holding on estoppel and appellee urges quasi estoppel is here controlling, it should be remembered that while estoppel may be urged for the protection of a right, it can never create a right." Mara v. Norman, 162 Neb. 845, 77 N.W.2d 569.
For the foregoing reasons, the judgment of the district court is reversed. We remand the cause to the district court with directions to enter a declaratory judgment for the plaintiff in accordance with this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.