178 P. 141 | Cal. | 1919
Plaintiff and defendant are the successors of the lessor and lessee, respectively, in a twenty-year lease executed November 27, 1900, of twenty acres of land for the development of oil, reserving a royalty therefrom. On May 6, 1910, defendant sublet for five years two pieces of land, 150 by 250 feet each, in the northwest and northeast corners, respectively, of said twenty acres, to the Associated Supply Company, for the erection of the necessary buildings and the carrying on of an oil well supply business thereon, reserving a rental of one hundred dollars per month. Plaintiff brought this action, alleging that his predecessors were the owners of "the north half of the southeast quarter of the northeast quarter of section 2, township 11 north, range 24 west, S. B. B. M. in Kern county, California," and that "said owners as lessors executed to A.C. Leibdedofer and E.H. Loveland, as lessees, *572 that certain indenture of lease bearing date on said day, wherein and whereby said lessors leased, let and demised to the said lessees the said land for the term of twenty years from and after said day, for the purposes in said lease set forth, and thereupon said lessees entered into and upon said land and took possession thereof under said lease"; and set forth a copy of said lease and made the same a part of his complaint. Plaintiff alleged the subletting to the Associated Supply Company "for a purpose not contemplated" by the provisions of the lease, claiming that the execution of the sublease created an encumbrance upon the land, in violation of a covenant of the lease, and, because of said encumbrance, demanded a decree forfeiting said lease, an accounting for royalties, and "for all funds . . . received from the Associated Supply Company, . . . for the use of any surface rights of said premises," and for "judgment for all sums found due him by said accounting." The defendant did not deny the collection of the one hundred dollars per month rental, but in answer to the claim of forfeiture alleged facts showing that plaintiff was estopped from claiming a forfeiture, by reason of his own delay in bringing the proceedings after knowledge of the contract between the defendant and the Associated Supply Company, during which time defendant had spent more than fifteen thousand dollars in further development of the property, plaintiff having during that period received the rental reserved by him. At the trial plaintiff abandoned his claim for an accounting for royalty, and merely proved the existence of the sublease. The court rendered judgment for plaintiff for the full amount of the rents ($5,843.20) collected by the defendant from the Associated Supply Company, and refused to declare a forfeiture of defendant's lease on the ground of estoppel by reason of plaintiff's acquiescence in the contract of the Associated Supply Company. Defendant appeals.
Let us first consider plaintiff's claim that by the sublease in question the defendant violated the provision of the lease against creating encumbrances upon the land. The lease provided that all the expenditures in connection with the boring for oil, erection of derricks, pumps, pipes, engines, tanks and material, should be provided by the lessees at their own expense, and that they should also furnish all labor employed in the development of the premises and the production of oil, *573
"and the lessees hereby agree that they will at all times keep said lands and premises free and clear of all encumbrances and liens, particularly mechanics', materialmen's and laborers' liens, caused by reason of any debt or obligation contracted or handed down by lessees under the terms of this agreement. Lessees agree to pay all taxes that may he levied on the personal property and upon their portion of the oil stored on said premises." There was no agreement in the lease against subletting. The lessee, therefore, had a right to sublease portions of said land for the purposes specified in its lease, namely, the development of oil. (Chandler v. Hart,
We are, therefore, satisfied that plaintiff is not entitled to recover the amount of rents collected by the appellant from its subtenant, on the theory that such sublease was a violation of the covenant against encumbrance, and, for that reason, that the judgment should be reversed. Nor was the respondent entitled to recover such rents upon the theory that his complaint was, in effect, an action for money had and received. His remedy was for damages under the provisions of section
Judgment reversed.
Sloss, J., Melvin, J., Lorigan, J., and Angellotti, C. J., concurred.