dissenting.
I respectfully dissent from the decision of the court in this case. As I said in my dissent in State v. Rosenberger (1972), 187 Neb. 726, 193 N. W. 2d 769, I cannot be a party to the rape of the school land trust. For the reasons I enunciated there, I believe that improvements made on school lands prior to September 14, 1953, without the specific consent of the Board of Educational Lands and Funds, became the property of the State. I question the power of the Legislature or of this court to force the Board of Educational Lands and Funds to grant rights to the detriment of the beneficiaries of the school land trust. See Lassen v. Arizona ex rel. Arizona Highway Dept. (1967), 385 U. S. 458, 87 S. Ct. 584, 17 L. Ed. 2d 515.
I believe the majority in Rosenberger were in grievous error in overruling State v. Bardsley (1970), 185 Neb. 629, 177 N. W. 2d 599, and readopting Banks v. State (1966), 181 Neb. 106, 147 N. W. 2d 132. In Bardsley the court had before it facts identical to those concerning the 4,300-bushel grain bin. Both cases involved 25-year leases of school land entered into in the early *1311940s and expiring in the late 1960s. In both cases, the lessees placed buildings on the school land after September 14, 1953, without the express written permission of the Board of Educational Lands and Funds. Because I believe Bardsley states the proper rule, the lower court was in error in holding that the lessee is entitled to the proceeds of the sale of the grain bin. When the grain bin was placed on the land without the approval of the Board of Educational Lands and Funds, it became at that time the property of the state.