That case is fully determinative of the issues here and without question requires affirmance of the judgment in this case. In 1970, however, State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599, was decided. That case involved a quonset building erected by a tenant without permission after September 14, 1953.
More importantly, the addendum to the lease does not include any language suggesting otherwise. See, Schmeckpeper v. Koertje, 222 Neb. 800, 388 N.W.2d 51 (1986); Lienemann v. Lienemann, 201 Neb. 458, 268 N.W.2d 108 (1978); State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599 (1970), overruled in part on other grounds, State v. Rosenberger, 187 Neb. 726, 193 N.W.2d 769 (1972). Neb. Rev. Stat. § 77-1374 (Reissue 2003) also supported the general conclusion that improvements do not necessarily become part of the underlying real estate, at least for taxation purposes.
Addressing that second aspect of the matter first, we note that an unconstitutional statute is a nullity, void from its enactment, and is incapable of creating any rights or obligations. State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599 (1970), overruled on other grounds, State v. Rosenberger, 187 Neb. 726, 193 N.W.2d 769 (1972). Constitutionally invalid legislation confers no rights; imposes no duties or obligations; and is, in legal contemplation, as inoperative as though it had never been composed or enacted.
State v. Cooley, 156 Neb. 330, 56 N.W.2d 129 (1952). See, also, State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599 (1970), overruled on other grounds, State v. Rosenberger, 187 Neb. 726, 193 N.W.2d 769 (1972); Board of Educational Lands Funds v. Gillett, 158 Neb. 558, 64 N.W.2d 105 (1954). Accordingly, having declared all of the aforementioned statutes unconstitutional to the extent they authorize telewagering at teleracing facilities, we also declare that the license issued to Douglas Racing Corp. by the State Racing Commission for the operation of the Bennington facility is void, since Douglas Racing Corp. acted pursuant to an unconstitutional statute when it licensed the track.
Therefore, we need not decide whether Helvey's personal rental property was business inventory within the meaning of this statute because the property was taxable in any event. "[A court] may not properly grant relief based upon a statute which is nonexistent or one which has become nonexistent by reason of judicial declaration of unconstitutionality by this court whether the question has been raised by the parties or not." State v. Bardsley, 185 Neb. 629, 632, 177 N.W.2d 599, 601-02 (1970), overruled on other grounds, State v. Rosenberger, 187 Neb. 726, 193 N.W.2d 769 (1972). See, also, Mara v. Norman, 162 Neb. 845, 77 N.W.2d 569 (1956).
As expressed in L. J. Vontz Constr. Co. v. State, 230 Neb. 377, 382, 432 N.W.2d 7, 11 (1988): "[A] court must examine and construe a petition's essential and factual allegations by which the plaintiff requests relief, rather than the legal terminology utilized in the petition or the form of a pleading." The doctrine of equitable estoppel is not a cause of action, but is a judicial device to preserve a right already acquired, not generate a new right. Warren v. Papillion School Dist. No. 27, 199 Neb. 410, 259 N.W.2d 281 (1977); Clark Enersen, Hamersky, S., B. 7:, Inc. v. Schimmel Hotels Corp., 194 Neb. 810, 235 N.W.2d 870 (1975); State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599 (1970). Rather than allegations of equitable estoppel, SIC's second theory of recovery contains allegations that "the Department knowingly concealed material facts" about Commonwealth, SIC "reasonably relied on the . . . Department's . . . concealment of material facts," and "[a]s a direct result of [SIC's] reasonable reliance upon . . . the concealment of Commonwealth's condition by the State and the Department," SIC was injured.
Lienemann v. Lienemann, 201 Neb. 458, 268 N.W.2d 108 (1978); Blomquist v. Board of Educational Lands Funds, 170 Neb. 741, 104 N.W.2d 264 (1960); Smith v. Kober, 108 Neb. 768, 189 N.W. 377 (1922). Further, improvements which become a part of the real estate may not be removed and do not become the property of the lessee unless such removal or ownership is provided for by agreement or statute. Lienemann, supra; State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599 (1970). We agree with the trial court that Koertje agreed that the two steel grain bins were to be the personal property of Richard Schmeckpeper. Thus, it was proper that they were offered for sale at an auction of Richard Schmeckpeper's personal property.
Therefore, § 6-08-16, as amended in 1983, was declared unconstitutional in its entirety. It is well established that unconstitutional legislation is void and is to be treated as if it never were enacted. State v. Piekkola, 90 S.D. 335, 241 N.W.2d 563 (1976); State v. Bardsley, 177 N.W.2d 599 (Neb. 1970); see also, First Bank of Buffalo v. Conrad, 350 N.W.2d 580 (N.D. 1984). Therefore, when legislation that is enacted to repeal, amend or otherwise modify an existing statute, is declared unconstitutional, it is a nullity and cannot affect the existing statute in any manner. Rather, the extant statute remains operative without regard to the unsuccessful and invalid legislation.State v. Ehr, 57 N.D. 310, 221 N.W. 883 (1928); Frost v. Corporation Commission, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929); see also, State v. Mundy, 53 N.D. 249, 205 N.W. 684 (1925); 1A Sutherland, Statutory Construction, § 22.37 (3d ed. 1972).
The general rule that improvements which become a part of the real estate may not be removed and do not become the property of the lessee is applicable in the absence of agreement, express or implied, or a statute indicating otherwise. See State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599. Counsel for the plaintiff-appellee George acknowledges the rule cited above but nevertheless urges us to follow the principle announced in Atkins v. Schmid, 129 S.W.2d 412 (Tex. Civ. App., 1939).
Finally, it is clear that an estoppel is not a cause of action, nor does it give rise to one. Its purpose is to preserve rights already acquired and not to create new ones. Clark Enersen, Hamersky, S., B. T., Inc. v. Schimmel Hotels Corp., 194 Neb. 810, 235 N.W.2d 870 (1975), State v. Bardsley, 185 Neb. 629, 177 N.W.2d 599 (1970). Plaintiffs failed to preserve any rights with respect to school bus service in the public record of the merger, and cannot now create such rights by means of estoppel.