O'Neil v. Haarberg
| Decision Date | 04 January 1966 |
| Docket Number | No. 36012,36012 |
| Citation | 139 N.W.2d 217,179 Neb. 531 |
| Parties | Jessie O'NEIL, Administratrix of the Estate of Robert O'Neil, Deceased, Appellee, v. Lavon HAARBERG and Sharon Haarberg, Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
Section 72-240.06, R.S.Supp., 1963, 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.
D. E. Owens, Benkelman, for appellants.
Curtis & Curtis, Imperial, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
Robert O'Neil in his lifetime was the lessee in a lease of a section of school lands in Hayes County, Nebraska, given by the Board of Educational Lands and Funds. The lease expired December 31, 1963. Robert O'Neil died February 27, 1963, and the appellee Jessie O'Neil was appointed and is acting as administratrix of his estate. The lease of this land was offered for sale by the Board of Educational Lands and Funds on October 24, 1963, at which sale Lavon Haarberg and Sharon Haarberg, the appellants, were the highest bonus bidders and were awarded and received a new 12-year lease which went into effect on January 1, 1964.
The lessees in their respective leases failed to agree on the amount to be paid for the crops growing on the section and three appraisers were appointed pursuant to section 72-240.06, R.S.Supp., 1963. From the award of the appraisers the Haarbergs appealed to the district court for Hayes County. On the appeal Jessie O'Neil, administratrix, was designated as plaintiff and Haarberts as defendants. They will be referred to herein as they were designated in the trial court, and when defendant is mentioned in the singular, it will refer to Lavon Haarberg.
A trial to a jury in district court resulted in a verdict and judgment in favor of the plaintiff in the sum of $6,742. From an order overruling their motion for a new trial the defendants have appealed.
The defendants assign as error to the trial court that the verdict and judgment are contrary to the law and the evidence. They also contend certain instructions given were erroneous and that the trial court erroneously failed to instruct the jury upon the theory of the defendants.
It was stipulated there was planted by the plaintiff and growing on the premises on January 1, 1964, 354 acres of wheat and 74 acres of rye. This stipulation further showed the acres allotted to the premises by the governmental authorities as a wheat base was 157.2 acres and that the defendants bid and paid a bonus of $8,500 for the new lease under which $1,890.30 was the applicable annual rental. The undisputed evidence shows that the defendants took in cattle of others for pasturage on the growing small grain crop and received $998.63 therefor. The premises were unfenced and had thereon no well or source of water. Within time to effect compliance with the government's crops regulations defendant destroyed 200 acres of the wheat and all of the rye for which he received wheat certificate payments and other payments from the government agency in the amount of $1,961. On June 21, 1964, the remaining crop was totally destroyed by hail.
The evidence with respect to the value of the wheat and rye on January 1, 1964, is in conflict. Testimony of the plaintiff was that she hired her husband's cousin to summer fallow the land. She paid $357 for each of three operations in preparing the land. About half of the ground so planted was rodweeded before drilling at $1 an acre. Drilling cost another $1 for each acre. The seed wheat cost $814, and the rye $111. The average production of wheat in Hayes County was 27 bushels per acre, and of rye 10 bushels. The market on wheat at harvesttime was $1.27 a bushel and on rye $0.92. Harvesting costs would have been $4 an acre. It was a normal season, the soil where planted was good, and she felt on January 1 a normal crop was to be expected. The plaintiff testified the wheat was worth $34.92 per acre and the rye $9 per acre on January 1, 1964. She knew the expiration date of her lease.
Several other farmers were called as witnesses by the plaintiff, some of whom had appraised the growing crops. They valued the wheat between $25 and $22.13 per acre. They considered the rye to be of little or no value except for pasturage and to keep the soil from blowing. The rye was planted on the more sandy portions of the land. These witnesses said portions of both the wheat and rye acreages contained wild oats, which is sometimes referred to as downy brome. The acres affected, the extent of the infestation, and the resulting damage varied considerably with the testimony of the several witnesses but they did not consider it widespread or serious. Some said they made allowance for this in their estimate of value. Most of them stated the wheat had a good stand and made a good cover, and that the rye was not so good. There was testimony that there were 3 or 4 inches of rain in the latter part of October and other normal rainfall in the fall of 1963, and that the condition of the crops as to moisture was good.
The defendant testified that the crops on the whole place had wild oats in them and if left would choke out the crops and damage the land for cultivation in future years as they ripen their seeds in May. He had pastured 150 head of cattle for 10 days beginning April 15, 1964, after which until May 20, 1964, there were either 200 or 250 head. He received 13 cents a day per head. Defendant was forced to install 4 miles of temporary fencing in order to pasture the cattle and hauled water for them twice daily and three times when it was warm. The wheat was not worth more than $10 an acre on January 1, 1964, and the rye of no value.
Several farmers were called as witnesses by the defendants. They all testified at considerable length concerning the infestation of the crops by wild oats. Their testimony varied in that respect also but they generally agreed more damage would naturally follow to the crops because thereof than the plaintiff's witnesses. One said the crops were practically worthless except for grazing, for which purpose he valued them at $1,750. Another stated the growing wheat was worth not to exceed $10 or $11 an acre and declined to value the rye. Similar testimony was given by other witnesses. One estimated the wheat was worth $10 or $12 an acre. Two gave no opinion as to the value of the crops on January 1, 1964, one of whom stated he would decline to buy such crops at that time as it would only be a gamble.
The provisions with respect to the obligation of a lessee of state school lands with respect to the purchase of the improvements thereon at the expiration of the prior leasehold estate were hitherto set forth in section 72-240.06, R.R.S.1943. This section was amended by Laws 1963, chapter 417, section 1, page 1340. The new statute was effective October 19, 1963, only 5 days before the sale at which defendants bid in the leasehold interest at public sale. As far as it affects the present action there was no significant change made by the amendment. We will quote certain portions pertinent to this action from section 72-240.06, R.R.Supp., 1963, as follows:
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Banks v. State
...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 association with irremovable improvements such as land le......