REQUESTED BY: David W. Urbom, Furnas County Attorney, Arapahoe, Nebraska 68922 1. What is the meaning of the words `any tract of land' in Neb.Rev.Stat. § 79-403(1) (Reissue 1976)?

2. Do the words `any tract of land' in Neb.Rev.Stat. §79-403(1) (Reissue 1976) include real estate located in a rural area as well as real estate located within the incorporated limits of a city or village?

1. Arguably, the words `any tract of land' in Neb.Rev.Stat. § 79-403(1) (Reissue 1976) refers to and means the real estate embraced in a written instrument in which the petitioner is the freeholder, or a person in possession or constructive possession as vendee pursuant to a contract of sale of the fee, or a holder of a school land lease under Neb.Rev.Stat. § 72-232 (Reissue 1976) or an entrant upon government land who has not yet received a patent therefor.

Yes.

At the outset, our research discloses no case law which interprets the words `any tract of land' in Neb.Rev.Stat. §79-403(1) (Reissue 1976). On the other hand, our research discloses that the Nebraska Supreme Court has said that a petitioner, otherwise qualified, is entitled to have the tract of land described in the petition set off from the school district in which it is situated and attached to some other district if it is in the best `educative interest' of the petitioner. Roy v. Bladen School Dist. No. R-31,165 Neb. 181, 84 N.W.2d 119 (1957). See also, Pischel v.Kreycik, 184 Neb. 332, 167 N.W.2d 388 (1969); McDonald v.Rentfrow, 176 Neb. 796, 127 N.W.2d 480 (1964); and Elsonv. Harbert, 191 Neb. 228, 214 N.W.2d 391 (1971).

Thus it appears to us that the words `any tract of land' in Neb.Rev.Stat. § 79-403(1) (Reissue 1976) refers to and means the real estate embraced in a written instrument in which the petitioner is the freeholder, or a person in possession or constructive possession as vendee pursuant to a contract of sale of the fee, or a holder of a school land lease under Neb.Rev.Stat. § 72-232 (Reissue 1976), or an entrant upon government land who has not yet received a patent therefor. It also appears to us that such a petitioner, otherwise qualified, is entitled to have the tract of land described in his or her petition set off from the school district in which it is situated and attached to some other school district pursuant to Neb.Rev.Stat. § 79-403(1) (Reissue 1976) regardless if the tract of land is located in a rural area or within the incorporated limits of a village or city.

Respectfully submitted,

PAUL L. DOUGLAS Attorney General

Harold Mosher Assistant Attorney General

APPROVED:

Paul L. Douglas Attorney General