59 Wash. 217 | Wash. | 1910
On the 1st day of September, 1906, the West Seattle Land & Improvement Company leased blocks 455 and 456 of Seattle tide lands to Joseph L. Ward and W. W. Powers for a term of ten years. On the 2d day of January, 1907, Ward and wife assigned all their right, title and interest in the lease to Powers, and on the 21st day of January, 1907, Powers and wife assigned to the defendant, the Seattle Park Company. By an agreement, undated, but acknowledged by the parties on the 11th clay of January, 1907, the defendant agreed to lease the easterly five lots of block 456, and an undivided one-half interest in block 455, to the plaintiff Looff, for a term expiring on the 31st day of August, 1916, subject to renewal, and on the 25th day
“It is expressly covenanted and agreed that the party of the second part [Looff] shall have the right to conduct such forms of amusement and entertainment on the said easterly five (5) lots of block '456 as he may desire, including the sale of candies, pop-corn, ice-cream and soft drinks and cigars, and all slot-machines, and nickle-in-the-slot machines, excepting as follows:
“That the party of the second part [Looff] shall not conduct any bathing establishment, any cafes, any restaurants or any skating rink on said premises; and the party of the first part [Seattle Park Company] shall not conduct any amusement except as specified on said premises.”
The present action was instituted to recover the receipts of certain games and amusements conducted by the defendant on the three westerly lots of block 456, • not included within the lease; to restrain the defendant from conducting or carrying on certain games and forms of amusement on said last described lots in the future, and for other relief not deemed material on this appeal.
The court below ruled that the defendant was not restricted in the use it might make of the three westerly lots of block 456, by the above mentioned covenant or agreement, and gave judgment accordingly. From this judgment, the plaintiffs have appealed.
It seems to us that the judgment of the court below should be affirmed. We look in vain to the contract between the parties for any limitation or restriction upon the right of the respondent to use its own property for any lawful purpose. The first part of the covenant or agreement upon which the appellants rely is limited by its terms to the east
The judgment is accordingly affirmed, but the affirmance will be without prejudice to a new
Chadwick, Puhlekton, Gose, and Mokkis, JJ., concur.