Kidder v. Wright
| Decision Date | 29 May 1964 |
| Docket Number | No. 35669,35669 |
| Citation | 128 N.W.2d 683,177 Neb. 222 |
| Parties | M. C. KIDDER, Appellant, v. Arnold WRIGHT, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A motion for summary judgment is properly sustained where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
2. Section 72-240.06, R.R.S.1943, provides the procedure for the appraisement of improvements on school land when a lease has been terminated by expiration or forfeiture. The procedure prescribed therein is an exclusive remedy that is binding upon all lessees of school lands.
3. Under section 72-241, R.R.S.1943, an assignment of a school land lease is not valid until it has been recorded in the office of the Board of Educational Lands and Funds.
4. An assignment of a school land lease made pursuant to a property settlement in a divorce action is not effective as against the State of Nebraska and subsequent lessees if the assignment is not recorded in the office of the Board of Educational Lands and Funds.
5. An assignee of a school land lease who is in possession of the land is not a 'former lessee' within the meaning of section 72-240.06, R.R.S.1943, and entitled to the notice required by that section if the assignment has not been recorded in the office of the Board of Educational Lands and Funds.
Dean L. Donoho, Valentine, for appellant.
Robert V. Hoagland, Ainsworth, for appellee.
Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
The plaintiff, M. C. Kidder, brought this action against Arnold Wright, the defendant, to recover the value of improvements constructed upon Section 36, Township 29 North, Range 34 West of the 6th P.M., in Cherry County, Nebraska. The land in question is school land owned by the State of Nebraska and is under the control and management of the Board of Educational Lands and Funds.
The petition alleged that Pearl L. Kidder, the former wife of the plaintiff, acquired a lease to the land in 1948; that improvements were made on the land; that the lease was awarded to the plaintiff in a property settlement incident to a divorce action and that the plaintiff went into possession; that the lease awarded to the plaintiff was canceled in 1958 and a new lease was made to the defendant; that on May 26, 1958, the State of Nebraska and the defendant recovered judgment against the plaintiff in an action in forcible entry and detainer; that the defendant then went into possession of the land and removed and destroyed some of the improvements; and that the improvements on the land had a value of $6,000.
The answer alleged that the county court of Cherry County, Nebraska, had on March 28, 1958, appointed appraisers to appraise the improvements upon the land; that the improvements were appraised at $615; that the defendant paid $615 into the county court of Cherry County, Nebraska; and that there had been no appeal from the report of the appraisers. The answer contained other allegations but they are not important to the disposition of this appeal.
The reply was a general denial.
A pretrial conference was held and the parties stipulated the facts which were alleged in the pleadings which have been summarized. The defendant then filed a motion for summary judgment which was sustained. The plaintiff's motion for new trial was overruled and he has appealed. The plaintiff assigns as error the sustaining of the defendant's motion for summary judgment.
The controlling question in this case is whether the appraisal of the improvements made pursuant to section 72-240.06, R.R.S.1943, was binding upon the plaintiff. The plaintiff's theory of the case is that an appraisal under section 72-240.06, R.R.S.1943, is not an exclusive remedy, and that the appraisal which was made is not binding on him because he had no notice of the proceeding.
Subsection (1) of section 72-240.06, R.R.S.1943, provides as follows:
Subsection (2) of section 72-240.06, R.R.S.1943, provides for an appeal to the district court by any party who is dissatisfied with the appraisement.
Section 72-240.06, R.R.S.1943, provides the procedure for the appraisement of improvements on school land when a lease has been terminated by expiration or forfeiture. State ex rel. O'Brien v. Board of Commissioners, 116 Neb. 261, 216 N.W. 818. See, also, Jessen v. Blackard, 160 Neb. 557, 71 N.W.2d 100. It is the remedy which the Legislature has provided where a new lease is to be made to a person other than the former lessee, and the parties are unable to agree as to the value of the improvements. The statute enters into and becomes a part of the contract between the state and each lessee. State v. Platte Valley Public Power & Irr. Dist., 147 Neb. 289...
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Universal Assurors Life Ins. Co. v. Hohnstein
...school land could not be altered by a dissolution decree and made enforceable against the other parties to the lease. Kidder v. Wright, 177 Neb. 222, 128 N.W.2d 683 (1964); State v. Kidder, 173 Neb. 130, 112 N.W.2d 759 (1962). Moreover, in Baker v. Baker, 201 Neb. 409, 267 N.W.2d 756 (1978)......
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Banks v. State
...Such a privilege ought to fit apparent policy; yet the remedy of compensation in the leasing system is exclusive. Kidder v. Wright, 177 Neb. 222, 128 N.W.2d 683; O'Neil v. Haarberg, 179 Neb. 531, 139 N.W.2d 217. The privilege would be an inadequate substitute for compensation. In associatio......
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O'Neil v. Haarberg
...had and conducted in the manner prescribed in sections 76-716 to 76-720.' (Italics supplied.) This court in the case of Kidder v. Wright, 177 Neb. 222, 128 N.W.2d 683, construed this section as it was before the amendment mentioned. In its syllabus this court held: 'Section 72-240.06, R.R.S......