State v. Kidder, 35082

• Decision Date: 05 January 1962
• Docket Number: No. 35082,35082
• Citation: 173 Neb. 130,112 N.W.2d 759
• Parties: STATE of Nebraska and Arnold Wright, Appellees, v. Milton C. KIDDER, Appellant.
• Court: Nebraska Supreme Court

Page 759

112 N.W.2d 759

173 Neb. 130

STATE of Nebraska and Arnold Wright, Appellees, v. Milton C. KIDDER, Appellant.

No. 35082.

Supreme Court of Nebraska.

Jan. 5, 1962.

Syllabus by the Court

1. Article VII, section 1, of the Constitution of this state provides in part that the general management of all lands and funds set apart for educational purposes, and for the investment of school funds, shall be vested, under the direction of the Legislature, in a board of five members to be known as the Board of Educational Lands and Funds.

2. The Board of Educational Lands and Funds has control and management of school lands.

3. Section 72-232, R.R.S.1943, provides in part that no individual, partnership, or corporation shall be entitled to hold under lease a total of more than 640 acres of state educational lands, whether the same be acquired by direct lease or by assignment; provided, that said limitation shall not apply where the land to be leased is bounded entirely on two sides thereof by lands owned or operated by such applicant or assignee.

4. The Summary Judgments Act authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, and that no genuine issue remains for trial.

Milton C. Kidder, pro se.

Clarence A. H. Meyer, Atty. Gen., William C. Smith, Jr., Ainsworth, Bernard L. Packett, Asst. Atty. Gen., Robert V. Hoagland, Ainsworth, for appellees.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

MESSMORE, Justice.

This is a forcible entry and detention action brought in the county court of Cherry County by the State of Nebraska and Arnold Wright, its tenant, as plaintiffs, against Milton C. Kidder, defendant. This petition was filed in the county court of Cherry County May 3, 1958. The purpose of the action was to recover possession of certain school land. On May 26, 1958, judgment was rendered in favor of the plaintiffs and against the defendant. The defendant perfected appeal to the district court for Cherry County. In the district court a pretrial conference was held to simplify the issues raised by the pleadings. On January 24, 1961, the State, on behalf of the plaintiffs, filed a motion for summary judgment. On March 14, 1961, the defendant filed a motion for new trial which was overruled on May 11, 1961. The plaintiffs' motion for summary judgment was sustained March 15, 1961. The defendant perfected appeal to this court.

The defendant assigns as error that the trial court erred in sustaining the plaintiffs' motion for summary judgment, for the reason that the trial court's finding of fact is not sustained by the pleadings, the admissions, or other evidence introduced at the hearing on the motion for summary judgment; and that the trial court erred in finding that the plaintiffs were entitled to possession of the school land here involved.

The issues include the following: Is an order of the district court assigning and directing the assignment of a school land lease as a part of a property settlement in a decree of divorce a valid and legal assignment of said school land lease where there is a procedure for such assignment prescribed by statute which required, among other things, that an assignment of a school land lease be approved by the Board of Educational Lands and Funds?

It was stipulated that the former wife of the defendant Milton C. Kidder was the holder of a school land lease from the Board of Educational Lands and Funds; that said lease was included in the property settlement between the defendant and his wife which was incidental to a divorce decree issued by the district court for Cherry County in a case entitled Kidder v. Kidder; that said case was appealed to the Supreme Court of this State and affirmed; and that the decree in the divorce action purportedly assigned, or attempted to assign, said lease to the defendant Milton C. Kidder, but that no assignment or transfer of said lease was executed by the wife of the defendant pursuant to the order of the court in said case which the Board of Educational Lands and Funds approved.

It was admitted that the State was the owner of Section 36, Township 29 North, Range 34 West of the 6th P. M., in Cherry County; that said real estate is a part of the lands granted to the State of Nebraska under the Enabling Act of Congress, and under the Enabling Act and the constitutional provisions of the state is dedicated to be used for the benefit of the common schools of the state; that under the Constitution of the State of Nebraska, the Board of Educational Lands and Funds is charged with the control and management of said public school lands; that Pearl L. Kidder is the ex-wife of Milton C. Kidder and acquired a school land lease on the above-described real estate by assignment on May 24, 1948, which was approved by the Board of Educational Lands and Funds, and the lease was stated to expire on December 31, 1961; that an order was issued by the Board of Educational Lands and Funds to Pearl L. Kidder on January 16, 1958, to show cause why her school land lease should not be forfeited for lack of using the school land for her own use and benefit as provided by section 72-235, R.R.S.1943; and that Pearl L. Kidder did not appear to show cause why her school land lease should not be forfeited, and the secretary of the Board of Educational Lands and Funds was authorized to sell a new lease at public auction.

It was stipulated that the plaintiff, Arnold Wright, was the lessee of the school land here involved under a school land lease dated March 10, 1958, and ending December 31, 1969, executed by the Board of Educational Lands and Funds of the state, as lessor; and that the...