dissenting.
I respectfully dissent from the decision of the court in this case. The result of that decision is that under section 72-240.07, R. R. S. 1943, all enumerated improvements placed upon the school lands by a lessee prior to *113September 14, 1953, were the property of the lessee and such improvements placed thereon thereafter were his property also if he had secured written consent of the Board of Educational Lands and Funds. It then gave the lessees everything they claimed except the land leveling. Their claim to the latter was rejected solely because it was placed thereon subsequent to 1953 without receiving written consent. It then proceeded to go further than the trial court went or either of the parties asked in their briefs and held the land could not be sold unless the value of the improvements given by the opinion to the tenant was first determined.
The opinion clearly recognizes that the tenants’ rights in the improvements consist of “either a common law privilege of removal or a right to compensation.” It then proceeds to state the privilege of removal would be inadequate and that for land leveling and well holes it would be completely unavailing. The tenant would in such instances “depart empty-handed.” To my way of thinking, under the present opinion the schools of the state, which are the real owners of the lands in question, will depart with their lands impaired to the extent of many millions of dollars. From the last report of the Board of Educational Lands and Funds, which is in evidence in the present case, the lands involved in 1964 exceeded 1,600,000 acres.
We start with the well-established principle that the state is a trustee of the school lands and that as trustee it has no right to' either give away or encroach upon their value. State ex rel. Ebke v. Board of Educational Lands & Funds, 154 Neb. 244, 47 N. W. 2d 520. Certainly a strained construction should not be placed upon statutes wholly by implication which results in impairing their value in the hands of the trustee.
Under the common law, in the absence of an agreement to the contrary, the tenant may remove improvements made in furtherance of the purpose of the lease provided he leaves the premises in as good condition *114as when he received them, but he may not remove improvements which have become an integral part of the property and which cannot be removed without material injury to the premises. 51 C. J. S., Landlord and Tenant, § 394c, p. 1137. This state followed the common law and has held that the tenant had the right to remove improvements at any time before the expiration of the term, Phelps v. Blome, 150 Neb. 547, 35 N. W. 2d 93, or the yielding up of possession, Frost v. Schinkel, 121 Neb. 784, 238 N. W. 659, 77 A. L. R. 1381. There is a presumption that the Legislature, in enacting a statute, did not intend to make any alteration in the common law other than that specifically stated; and it will not be presumed that the common law was repealed by the statutory or a constitutional provision, unless the language naturally and necessarily leads to that conclusion. 15 C. J. S., Common Law, § 20b, p. 633.
The opinion of the court cites a statute of 1867 which provided that an occupant of school lands had an option between receiving the appraised value of his improvements from the purchaser or removing the improvements within 6 months after sale. This statute was repealed by a subsequent section of that statute mentioned in the opinion as having changed it. Laws 1897, c. 71, § 4, p. 331. A labyrinth of statutes, dealing with the school lands have been enacted in the past. Some of them purported to change the common law of landlord and tenant in some particular while they existed. Only those in force during the term of the leases before us need concern us. Here it is not necessary to search the record of the past for statutes long since repealed to guide us in the present. We have the common law. “When a statute abrogating a rule or principle of the common law is repealed, the common-law principle or rule is ipso facto revived, unless there is something to show a contrary intent on the part of the legislature.” State ex rel. Wright v. Barney, 133 Neb. 676, 276 N. W. *115676. See, also, 15 C. J. S., Common Law, § 12b, p. 621; 50 Am. Jur., Statutes, § 525, p. 532. I conclude that the common law with respect to the rights of landlord and tenant is in force with respect to the school lands save only as it is changed by presently existing statutes.
In spite of the presumption that the Legislature did not intend to make an alteration in the common law other than specifically stated, the opinion discards entirely the law of landlord and tenant as it applies to the school lands. It does so by citing special statutes which set out specific rights between successive lessees and are clearly applicable to them only. It curtails the right of the owner to dispose of those lands until there has been a determination of the value of the improvements. No present statute is pointed out that purports to change the common law rights or obligations with respect to those lands between landlord and tenant. The statute directing the sale contains nothing to indicate such a change. It does not direct the determination of the value of the tenants’ improvements, nor provide for their being compensable on sale. It appears to the writer the legislative intent was to restrict the rights of the lessee to those provided at common law when leasing has ended and a sale is to be made. Who is to pay for the improvements when valued? Surely not the state itself for it should not mingle its funds with those for whom it is trustee. Neither is there statutory authority to invest the school funds therein. Nor should there be since those funds should remain inviolate. It must be the purchaser although the opinion does not say so.
It is obvious that if the land is sold without a determination of the rights of the lessees to the improvements, no purchaser would be inclined to buy a lawsuit. Bidding by those other than occupying lessees would be effectively chilled. In an attempt to avoid this patent danger the decision of the court has postponed a sale until the value of the improvements has been determined. It does not purport to point out how *116this is to be ascertained. Either it is left to the trial court or to future legislation. It plainly states, however, the value is to be determined before sale. This would appear clearly to be to the lessee’s advantage. The present provisions of law requiring an appraisement between the outgoing and incoming tenant is properly designed to secure a fair valuation. Presumably both are residents of the vicinity where the lands lie, are familiar with the premises, and are cognizant of its worth as well as the character and value of the improvements. The outgoing tenant desires to get as much for his improvements as he can and the incoming tenant to pay no more than required. Their interests and rights are adverse, as they should be. If appealed, the ensuing action is adversary in nature. Who is to see the improvements are not overvalued under the decision of the court? Certainly it is not an outside purchaser who is not yet known. Apparently it is the state as trustee, or the Board of Educational Lands and Funds or its agents. Their interest can be said to be adverse only by conceding that a high valuation will result in loss to the school lands. Who in the present case will be in a position to give evidence concerning the improvements and their value? Obviously the present tenants who with their ancestors have been in possession of the premises for 42 years. Who' will be in a position to testify or make claim to the contrary? The board and its agents have changed from time to time. No one else will be interested.
Laws 1953, chapter 255, section 1, page 862, formerly section 72-240.06, R. R. S. 1943, is cited in the opinion of the court setting out the list of property which then passed on appraisement from the old tenant to the new. The list consists- of buildings, fencing, wells, windmills, irrigation improvements, dams, drainage ditches, trees, plowing for future crops, and growing crops.
In cases considered by this court on appeal between tenants, the outgoing tenant was wont to equate the *117worth of such improvements more to costs than to value. This perhaps arises because most of the cases, involved growing small grain crops on the first of January. There was generally no market for them and it was difficult to say what their value was. The outgoing tenant testified to the costs of preparing the ground and sowing the grain and then generally placed a value corresponding with the costs. This testimony was permitted because costs do have some relationship! to value. O’Neil v. Haarberg, 179 Neb. 531, 139 N. W. 2d 217.
In the list of properties set out there are many improvements, the value of which will be difficult to fix. Who knows the value of wells, irrigation improvements, dams, drainage ditches, and land leveling as they are separately related to the land on which they are placed? To do so. it would be necessary to know the productivity of the lands involved before and after the improvements were effected. The Board of Educational Lands and Funds has been collecting cash rent and had nothing to do with the crops raised. The tenant occupied the premises under long-term leases and generally placed them there for his own profit or convenience during the term. He can testify as to the improvement of the premises, their costs, and value.
Trees are planted as small shoots. They were often procured free from the federal government. In this instance, costs are forgotten, but having grown from roots in the school lands they are said to be of great value. In the case of the windbreak, the land under it has. little value where the windbreak is divorced from it and must be separately purchased.
I am fearful that with the means at hand to augment the value placed upon the improvements, any appraisal of them will become overvalued.
The court’s opinion holds that prior to September 14, 1953, no written approval by the Board of Educational Lands and Funds was required for the installation of whatever enumerated improvements the tenant desired *118to place upon the premises. It holds they are compensable regardless of whether they were only suitable for the lessee’s personal needs or were required by the interests of good husbandry and the proper operation of the land. Motives for overimprovement were not lacking. First, they could be used in connection with the operation of nearby lands privately owned. Second, their presence often chilled bids at a subsequent leasing. Third, if a new tenant outbid the former tenant, he was assured that as long as the leasing arrangements were continued he would receive the value of the improvements. Juries were often inclined to accept the outgoing tenant’s valuations.
Sections 72-257 and 72-258, R. S. Supp., 1965, providing for the sale of the school lands requires an appraisal of the land only for the sale purposes and provides that the premises be not sold for less than the appraisal. If a separate valuation of improvements is required to be paid, it is apparent that any excess of value over the appraisal that a bidder might be inclined to pay for the land would go to compensate the lessee. It is equally obvious1 that if the valuation of improvements is. swollen the real value of the school lands would be seriously impaired. If the sum of the two appraisals exceeded the bid the sale would be blocked.
Why did not the Legislature provide for the appraisal of the improvements in the sections providing for sale? Surely an appraisal of many types, of improvements would require that guidelines be supplied concerning depreciation as well as obsolescence which occurs not only to buildings but to other changes made in the land itself. In my opinion, no appraisal of improvements was required because the Legislature considered that the common law provided the sole remedy of the lessee with respect to his improvements when the premises were sold. The leasing is at an end. The special statutes governing solely the rights between the successive lessees end with it.
*119The statutes enacted by the trustee should not be construed as eroding the value of the trust property unless they clearly require such a determination. They do not do- SO' here. Much less should this appellate court in an equity case in which it sits as a court of chancery and good conscience dealing with trust property permit itself by a strained interpretation to do so.
If the lessees of the state school lands are restricted to the removal of such of their improvements as can be done without injury to the freehold they will of course not receive as much as they had hoped, but in my opinion they will have received all that the law of the land entitles them to receive. I am not impressed by the opinion of the court which seems to infer that they would be badly treated and go “empty-handed.” In the present case, the plaintiffs and their ancestors before them have leased these premises for 42 years. For the first 25 years they agreed to pay a little over 25 cents an acre a year as rent. For another lease for a period of 25 years, which however was executed before the end of the first term, they paid a little less than 25 cents an acre a year for their use. The record does not show what they have paid since. It was based upon an appraisal not in the record.
The record does show, however, that the lease rentals and penalty interest on the school lands under agricultural leases amounted to $4,798,436.09. This is for the biennium from July 1, 1962, to June 30, 1964. The record as previously stated shows these lands included more than 1,600,000 acres. The record further shows that the cash bonuses from the agricultural lease sales on the common school lands were $2,313,359.90 during this same biennium. The amount of these bonuses clearly shows that the rental of the lands involved were lower than they should have been and were based on appraisals that were inadequate. Otherwise such a great sum would not have been received in bonuses for either new or renewal leases. The improvements were *120made, in my opinion, largely for the convenience and for profitable farming of those who held the premises under long-term leases. Their addition was not reflected in the rentals at least for years to come.
I would affirm the judgment of the trial court insofar as it purports to place the title to the improvements in the lessees. That was all the trial court did. That is all we were asked to do- by either party. However, I realize that the court in its opinion felt that the far-reaching effects of its decision demanded that something be done to clarify the impending sales of these vast holdings. That being required, I would simply state that the lessees be permitted to remove such of their improvements as could be removed without damage to the freehold in accordance with the common law. Inasmuch as time-consuming litigation intervened between the end of the leasehold term and the present, I would have given them a reasonable period to do so.
I am authorized to announce that Spencer, J., and Colwell, District Judge, join in this dissent.