113 P. 882 | Cal. Ct. App. | 1910
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *73 Plaintiff brought this action against defendant to recover damages for alleged breach of the implied covenant for quiet possession of a lease of real property. Judgment was in favor of defendant. Separate appeals taken from the judgment, and from an order denying plaintiff's motion for a new trial, are presented together.
On August 29, 1906, defendant Lewis, by a written instrument, leased to plaintiff for a term of twenty-two months, to commence on January 1, 1907, about three hundred and fifty acres of land, the same being part of Rancho Guadalasca in Ventura county. One Pierre Agoure at that time was in possession of the land, it constituting a portion of a tract of eight thousand acres then being used for pasturage and farming by said Pierre Agoure, and of which he had rightful possession under a lease from the owners thereof. Lewis became the owner of the ranch by purchase in February, 1906, so that at the time he executed the lease to plaintiff he held the fee title. The right of possession of Pierre Agoure under his lease *74
was sought to be terminated by a notice given by Lewis to Pierre Agoure in December, 1906. This notice was given under a term of that lease which permitted the owner, in case of sale, to terminate the leasehold estate by paying to the lessee certain damages which were fixed by the contract. Possession was not yielded by Pierre Agoure pursuant to the notice given to him by Lewis, and the matter became the subject of litigation in an action brought by Lewis against Pierre Agoure to quiet title. It was finally determined that Pierre Agoure was entitled to retain possession of the ranch until March 6, 1907. (Lewis v. Agoure,
A consideration of the question as to whether or not the findings of the trial court sustain the judgment will be sufficient to dispose of all of the material contentions made upon these appeals. In this connection, the finding of the court most important to be considered is that numbered as finding VIII, which is as follows: "That on the first day of January, 1907, and until about the sixth day of March, of said year, said P. Agoure had a large number of cattle on that portion of the Rancho Guadalasca so leased by him, but that said *75
cattle were not by him kept on the said land so leased to plaintiff herein, but did on various occasions escape from their herders and come upon the lands so leased by plaintiff, trespassing thereupon and damaging the same (but that the intrusion of the cattle upon the land so let to plaintiff did not constitute an eviction of him from said lands either by the said P. Agoure or by the said J. F. Lewis, but were acts of simple trespass committed by the cattle of said P. Agoure)." The parentheses inclosing the latter portion of the finding were inserted by us. That portion of the finding so inclosed was a statement of a conclusion of law, but it indicates that, while the court found that there had been damage suffered by reason of the intrusion of Pierre Agoure's cattle upon the land leased by John Agoure from defendant, the trial judge was of the opinion that such intrusion would not constitute a breach of the covenant for quiet possession, because the tenant was not evicted. If John Agoure suffered damage by reason of having his possession of the leased premises intruded upon, he, of course, would have an action to recover therefor, unless he was himself a trespasser thereon as against both P. Agoure and Lewis. Pierre Agoure had the right to the possession of the land up to the 6th of March, 1907, and he could not become a trespasser thereon; John Agoure could have no action for damages against Pierre in that case, and it matters not whether the cattle came upon the land held by John through mere accident, or whether they were purposely pastured there by or under Pierre's direction. Pierre had a right to pasture them there if he saw fit to do so, because the right of possession of the land was in him and he had never consented to the leasing of the same to John Agoure. As before noted, John Agoure was admittedly holding possession and farming the land under a right claimed to be given him by his lease from Lewis. Lewis could not maintain the position that the relation of landlord and tenant did not exist between him and John Agoure, for he claimed the right to and did receive all of the benefits provided to be received by him under the lease for the full term thereof. Therefore, John Agoure was compelled to look to his lessor if he was to have damages at all. The obligation of a lessor of real property respecting the matter of securing the quiet enjoyment of possession to his tenant is expressed *76
in section
Under the finding of the trial court it must be held that there was a breach of the covenant guaranteeing to John Agoure the quiet possession of the lands leased. The finding is that damage was suffered by reason of the intrusion of the cattle prior to March 6, 1907, but the amount thereof is not fixed. It is insisted by respondent that Pierre Agoure could not be considered as lawfully entitled to possession of the property pending the appeal taken by Pierre Agoure on April 21, 1907, in the case of Lewis v. Agoure,
The judgment and order are reversed.
Allen, P. J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 17, 1911.