63 Wash. 521 | Wash. | 1911
Appeal from a judgment in an unlawful detainer action. The rights of the parties in and to the premises were fixed by a lease upon tracts M, N, and P, of the plat of Alki Point, covering a period from June 1, 1908, to December 31, 1923. The rentai was $130 a month during the year 1908, and $145 a month for the year 1909. In June, 1908, an action was commenced in the district court of the United States for the Western district of Washington, wherein the United States, as petitioner, sought to condemn tract N for the erection and maintenance of a fog signal and light station, and the taking of said tract was thereafter adjudged to be for a public use. The appellant and respondent both appeared in that action, and sought damages for the taking of the tract. On December 1, 1908, judgment was duly entered in the condemnation proceedings, and it was held that the appellant was not entitled to damages, under a provision of the lease reciting that, in case the premises covered by the lease should be acquired by the United States in condemnation proceedings, the appellant would vacate any portion of the premises so acquired within thirty days! From the
The errors complained of are, (1) that the lower court was without jurisdiction, as the summons was dated November 27 and required the appellant to appear December 13, sixteen days after date; whereas the statute requires the summons in such cases to be made returnable in not less than six nor more than fifteen days. .This defect went to the jurisdiction of the person, and as appellant appeared in the action and submitted itself to the jurisdiction of the court, the defect was waived and cured and cannot now be taken advantage of. (2) The notice to quit stated the months for which appellant was in default in the payment of rent, but did not compute the rent due. For this reason the notice is alleged to be insufficient. The designation of the months for which rent was due and unpaid was a sufficient designation of the sum claimed to be due. Ralph w. Lomer, 3 Wash. 401, 28 Pac. 760.
The other errors alleged may be treated under one head, the contention being that, when part of the leased premises was taken under the condemnation proceedings, it operated as an eviction from the part taken, and the rent abated as to such part, requiring, before an unlawful detainer action could be maintained, a readjustment of the rent and a failure to pay the sum determined in the readjustment. While there are some cases sustaining appellant’s position in this regard, the great weight of authority is the other way. The cases sustaining appellant’s contention are from Missouri, New York, and Louisiana. The Missouri case, Barclay v.
“This decision was based on Taylor’s Landlord & Tenant, § 519, which says that a lease becomes void on taking the land for public improvements. But the authorities cited are Mills v. Baehr, 24 Wend. 254, which decided only that a tenant who had been paid full compensation for injuries to his possession by widening a street could not claim that this was a ‘casualty’ within a provision of his lease; and Barker v. Hodgson, 3 Maule & S. 270, which involved no question as to tenancy or taking by eminent domain, but related to the effect of an infectious disease upon the charter of a ship. It will be thus seen that the cases cited do not support the text.”
Tbe Missouri rule is also criticized in 1 Washburne on Real Property (5th ed.), 558, note 4, where it is said the cases relied upon do not support the doctrine. An examination of New York and Louisiana cases would seem to indicate that the rulings in those states, in so far as this contention is upheld, was based upon the particular recitals of statutory provisions. Gillespie v. Thomas, 15 Wend. 464; Foucher v. Choppin, 17 La. Ann. 321. The doctrine of the Missouri and Louisiana cases is referred to and commented upon adversely in Stubbings v. Village of Evanston, 136 Ill. 37, 26 N. E. 577, 29 Am. St. 300, 11 L. R. A. 839, and Gluck v. Mayor of Baltimore, 81 Md. 315, 32 Atl. 515, 48 Am. St. 515, in both of which an examination of the authorities leads the court to say that, both upon principle and the decided weight of authority, the correct rule is, that a tenant, when part of the leased premises is taken under the power of eminent domain, cannot claim an eviction by the landlord, nor be released from the payment of rent. The landlord could convey by his lease no greater title than he had, which was at all times subject to the exercise of the right of eminent domain on the part of those upon whom, because of the public necessity and convenience, the statute had conferred the power. Both thus held their interest in the property
Appellant sought to recover this damage in the condemnation proceedings, but was met by its covenant to vacate and surrender, as provided in the lease. Whether that judgment was correct or not, in holding that appellant was not entitled to damages because of such provision in the lease, it was a final judgment, rendered by a court of competent jurisdiction, and as such, fixes and determines appellant’s right in the matter. Appellant’s failure to pay the taxes was likewise a breach of its leasehold covenant, and the landlord was, because of such breach, entitled to maintain this action and obtain a restitution of the demised premises. The appellant could only retain possession of the premises as it kept and performed its covenants. When it failed and refused to perform, it lost its right of possession, and subjected itself to an action of this character.
Finding no error, the judgment is affirmed.
Chadwick, Ceow, Ellis, and Parker, JJ., concur.
