Watkins v. Dodson

• Decision Date: 11 February 1955
• Docket Number: No. 33614,33614
• Parties: Betty Jane WATKINS, Appellant, v. Myron E. DODSON, Appellee.
• Court: Nebraska Supreme Court

Page 508

68 N.W.2d 508

159 Neb. 745

Betty Jane WATKINS, Appellant, v. Myron E. DODSON, Appellee.

No. 33614.

Supreme Court of Nebraska.

Feb. 11, 1955.

Syllabus by the Court

1. Due process of law in the most comprehensive sense implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, to be heard by testimony or otherwise, and to have the right of controverting by proof every material fact which bears on the question of right in the matter involved.

2. This is a right of which the property owner cannot be deprived by the courts, the city council, or the Legislature.

3. Even actual knowledge of the owner of the appointment of the appraisers under an unconstitutional act cannot operate as a substitute for notice required by due process of law. The law must require notice and give a right and an opportunity to be heard.

4. Section 72-240.06, R.R.S.1943, fails to provide for notice to be given the owner of improvements so that he may appear before the appraisers and protect his rights and, for failure to so provide, is unconstitutional and void.

5. An unconstitutional statute is a nullity, is void from its enactment, and is incapable of creating any rights or obligations.

6. Where a litigant did not ask that an appraisement be made, took no part in it, only obtained knowledge of an appraisement when the county commissioners made and filed their report as provided for in section 72-240.06, R.R.S.1943, and did not invoke said section or seek any benefits thereunder, he is not estopped from raising the question of the constitutionality of such statute.

7. The right of appeal in this state is purely statutory and, unless the statute provides for an appeal from the decision of a quasi-judicial tribunal, such right does not exist.

8. One purpose of the act empowering a justice of the peace to determine the issue in an action of forcible entry and detainer is to prevent even rightful owners of realty from taking the law into their own hands and recovering by violence what the remedial powers of a court would grant.

9. Section 27-1404, R.R.S.1943, provides for the notice to quit the premises in an action of forcible entry and detainer. This notice is a condition precedent to bringing the action of forcible entry and detainer and is not sufficient in and of itself to permit entry by a person claiming the right of possession of the land. Other steps must be complied with within the contemplation of sections 27-1401 to 27-1417, R.R.S.1943, before a person may be dispossessed of unlawfully detaining the premises.

McGinley, Lane, Powers, & McGinley, Ogallala, for appellant.

Bruce K. Lyon, Grant, Henry W. Curtis, Imperial, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

The plaintiff, Betty Jane Watkins, brought this action in the district court for Perkins County against the defendant, Myron E. Dodson, seeking to recover damages for alleged conversion of a wheat crop grown and harvested by the defendant upon described school land of which the defendant was a former lessee and the plaintiff a new lessee.

The plaintiff's petition alleged that she was the owner of a leasehold estate from the State of Nebraska, Department of Educational Lands and Funds, hereinafter referred to as the Board of Educational Lands and Funds, under school land lease No. 72602 covering Lots 1, 2, 3, and 4, Section 36, Township 9 North, Range 42 West of the 6th P.M., in Perkins County, and entitled to the immediate possession of the wheat crop grown on said leased land during the summer of 1952; and that on or about June 25, 1952, the defendant wrongfully and tortiously, and with force prevented the plaintiff from harvesting the wheat crop but converted the same to his own use, resulting in damage to the plaintiff in the amount of $6,600.

The defendant, by amended answer, denied generally the allegations contained in the plaintiff's petition; alleged that sections 72-240, R.S.1943, and 72-240.06, R.R.S.1943, providing for appraisal of improvements and crops were unconstitutional; that the Perkins County board of county commissioners, in appraising said property, acted unconstitutionally in that it gave no notice to defendant of any hearing at which the appraisal was to be made, and gave the defendant no opportunity to introduce evidence as to the value of his crop; and that the defendant was not present at such appraisal and had no notice of the time and place of any appraisal of such crop.

The plaintiff's reply to the amended answer of the defendant denied all allegations therein contained except as had been admitted by the pleadings; alleged that the defendant was estopped from alleging the unconstitutionality of sections 72-240, R.S.1943, and 72-240.06, R.R.S.1943, for the reason that the defendant ratified the constitutionality of the statute by claiming a right to said crop under a lease issued to him by the Board of Educational Lands and Funds under the above sections of the statutes; and that the matter sought to be raised in the amended answer was res judicata by reason of the defendant having taken an appeal from the appraisement of the county commissioners of Perkins County which appraisement had been made pursuant to the provisions of the above-cited statutes.

A jury was waived and trial had to the court. The trial court found generally for the defendant and against the plaintiff; that the evidence failed to show any right of title in the plaintiff to the wheat crop; that the defendant came into possession of the land involved in good faith under a purported lease issued by the Board of Educational Lands and Funds dated December 12, 1949; that said lease was a nullity, and by reason thereof the defendant at all times involved therein was a tenant at sufferance; that he was in actual and constructive possession of the school land involved, was the owner of the wheat planted on said land, and was entitled to harvest it; that the county commissioners of Perkins County made a purported appraisement of the wheat crop involved; that the Board of Educational Lands and Funds had no interest in the said crop, was without authority to compel the appraisement of the crop, and the purported appraisement was void; that the appeal taken by the defendant from the appraisement of the board of county commissioners did not constitute res judicata for the reason that the board of commissioners never obtained jurisdiction to appraise the property; and that the district court for Perkins County had no jurisdiction to hear the appeal. The trial court dismissed the plaintiff's petition. The plaintiff filed a motion for new trial which was overruled, and the plaintiff perfected appeal to this court.

We will refer to the parties as they were designated in the district court.

The defendant was in possession of the land involved in the instant case under and by virtue of a school land lease issued to him in 1925 which would terminate in 25 years, or on January 1, 1950. He made application for a new lease under section 72-240, R.R.S.1943. Upon his application being received, the Board of Educational Lands and Funds issued to him a new 12-year lease under and pursuant to the authority of the provisions of section 72-240.01, R.R.S.1943. The case of State ex rel. Ebke v. Board of Educational Lands & Funds, 154 Neb. 244, 47 N.W.2d 520, affirmed by subsequent cases, determined that all leases executed pursuant to and under the authority of those statutes were a nullity. Therefore, in conformity with the resolution of the Board of Educational Lands and Funds dated August 13, 1951, defendant was subsequently notified that his 12-year lease was canceled and void and would be subsequently offered for sale at public auction in accordance with the published notice provided for by law; that he would be given an opportunity to bid at the sale; that in the event some person other than the defendant should be the successful bidder, any improvements on the land would be appraised by a majority of the members of the board of county commissioners and the new lessee would be required to pay the amount of such appraisement; and that either the defendant or the new lessee could, if dissatisfied with the appraisement, take an appeal to the district court.

The plaintiff secured the lease by tendering the highest bid at public auction which was held on April 16, 1952. The only improvement existing on the land involved was a field of growing wheat. There was a report of the appraisement by the county commissioners of Perkins County made on the 26th day of May 1952, and delivered to the county treasurer of the said county which fixed the value of the improvement at $2,400. A check in the amount of $2,400, signed by the plaintiff by her husband E. L. Watkins, was executed and delivered on May 27, 1952, to the county treasurer in payment of the appraisement as fixed by the county commissioners. A receipt was executed by the county treasurer to the plaintiff covering this amount on May 28, 1952. The plaintiff, in addition, paid $321 rental as required by law, and $1,851 for bonus and lease fee on lease No. 72602.

The defendant paid the Board of Educational Lands and Funds the rent for the premises for the years 1950 and 1951.

On June 11, 1952, the defendant signed a duly verified petition on appeal in which he alleged that prior to April 16, 1952, he was the lessee of the land in question and planted 113 acres of summer-fallowed wheat; that said wheat remained on the real estate when it was sold by the state; and that he was entitled to compensation for the growing wheat as provided for by law.

On June 25, 1952, the defendant was served by the sheriff of Perkins County, or his deputy sheriff, with a notice signed by the plaintiff that she was the owner of the lease on the premises...