dissenting.
I concur fully with the dissent of Judge Brower herein. I deem it necessary, however, to point out that except for the references to the trust character of school lands and a reference to- the scope of the powers of a court of equity in 54 Am. Jur., Trusts, § 276, p. 219, with which I fully agree, the concurring opinion is wholly lacking in authority. I suggest this lack of authority buttresses the fact that the law is as set out in the dissenting opinion. If it could be successfully refuted, it would not be necessary to- rely on mere assertions.
I believe it is important that we recognize the issue involved herein. We are not here concerned with the history of the school land legislation. We concede the legislative intent to grant rights to lessees in the improvements, but question its power to- grant an interest of any nature in the land. This is the result unless the common law rule on improvements is applied. We are not concerned with rights as between lessees, but rather as to whether a trustee may grant rights to the detriment of his cestui que trust. It is the law of trusts which is controlling herein.
As set out in Propst v. Board of Educational Lands & Funds, 156 Neb. 226, 55 N. W. 2d 653: “The title to the state school lands was vested in the state upon an express trust for the support of common schools without right 'or power o-f the state to use, dispose of, or alienate the lands or any part thereof except as allowed by the Enabling Act' and the Constitution.”
The law applicable herein is well stated in State ex rel. Ebke v. Board of Educational Lands & Funds, 154 Neb. 244, 47 N. W. 2d 520: “A trustee acts'in a'répfesérita*128tive capacity and persons dealing with him are bound to be cognizant of his powers. A trustee is required to dispose of trust property upon the most advantageous terms which it is. possible for him to secure for the benefit of the cestui que trust whom he represents. The rule is no different in the leasing of property of a trust estate.” In that same case, we said: “The state in acting as a trustee is subject to the same standards, and when its status as a trustee is fixed by the Constitution a violation of its. duty as a trustee is a violation of the Constitution itself.”
That the Legislature has the power to provide the method of administering the public school lands of the state as a trust is without question, but the method provided must be one which is within the law governing the administration of trust estates. The designation of these lands as a trust in the Constitution has the effect of incorporating into the constitutional provision the rules, of law regulating the administration of trusts and the conduct and duties of trustees. A breach of trust in such a situation is. in effect a violation of the constitutional provision and has the effect of invalidating the legislation authorizing the breach. State ex rel. Ebke v. Board of Educational Lands & Funds, supra.
The effect of the various, acts referred to in the majority opinion is to confer special benefits upon the holders of leases of school lands to the detriment of the beneficiaries of the trust. This is the construction placed upon the statute by the majority and the concurring opinions when they require a determination of the value of the so-called improvements and in effect force the trustee to buy them before sale. It is my contention that the state is powerless to. gratuitously create liens in any form on public school lands. I contend further that any lessee dealing with the state in its trust capacity is conclusively chargeable with knowledge of the extent of its power.
It seems elementary that a strict interpretation must *129be placed upon all statutes, agreements, and proceedings for the protection of beneficiaries of our public school lands. This fact, it appears to me, is wholly ignored in both the majority opinion and the concurring opinion. The majority opinion holds that lessees have a property interest. The concurring opinion states: “From time to time the Legislature defined the term ‘improvements’ by adding new forms of land benefits which were not recognized as ‘improvements’ within the common law rules applicable to landlord and tenant. The remedy provided by applicable statutes was a form of compensation, as compulsory as condemnation under eminent domain, if negotiation failed.” I have no quarrel with these holdings when interpreting rights as between lessees. As I interpret the improvement statutes, they contemplate, and I believe can only contemplate, the relationship between the old and the new lessees. The state merely serves as an intermediary between the two lessees, I seriously disagree with any interpretation that would grant lessees any “land benefits” as against the trust, for the simple reason that the Legislature is without power to create or grant such benefits. What the majority opinion does is to diminish the value of school lands by substituting the state for a new lessee. This is not only judicial legislation, but also legislation in violation of a constitutional prohibition.
On the issue of the growing crop, the majority opinion in addition violates the express terms- of the lease, which provides, “that the premises will be surrendered at the expiration of the lease.” Lessees herein planted 25 acres of wheat in the fall in 1965, subsequent to the passage of the school land sales law, and at a time when the lease by its terms would expire December 31, 1965, or long before the crop could mature.
As the majority opinion states, at common law a tenant is- not entitled to- crops after the expiration of a lease. In Peterson v. Vak, 160 Neb, 450, 70 N. W. 2d 436, 51 A. L. R. 2d 1221, this court held that a lessee *130has an absolute right to plant crops or use the land until the lease expires, but that he is chargeable with knowledge that any crop which has not matured by the termination of the lease would be his loss. The majority opinion, ignoring this case and the express terms of the lease, holds that in the interest of good husbandry this rule should not apply. The obvious effect of the majority opinion is to give the lessees a lien on the land for the crop1 which matured 6 months after the expiraion of the lease, when they deliberately planted it knowing the land was to be offered for sale.
For the reasons given, I cannot agree with the majority opinion herein.