Alaska Airlines v. Molitor, 32626
| Decision Date | 16 November 1953 |
| Docket Number | No. 32626,32626 |
| Citation | 263 P.2d 276,43 Wn.2d 657 |
| Court | Washington Supreme Court |
| Parties | ALASKA AIRLINES, Inc. v. MOLITOR et al. |
G. Bradley Dalton, Seattle, for relators.
Allen, Hilen, Froude, DeGarmo & Leedy, and Stuart G. Oles, Seattle, for respondent.
This is an application by the defendants and relators, F. H. Molitor and his wife, hereinafter referred to as the Molitors, for a writ of prohibition to prevent the superior court for King county from entering an order directing them, or any persons claiming possessory rights by or through them, to vacate and surrender to Alaska Airlines, Inc., all right, title and possession of those certain premises described as follows:
'Lots 5, 6, and the west 100 feet of Lot 7, Block 10 Merrill Field, Territory of Alaska, according to plat thereof on file in the Office of United States Commissioner, Anchorage, Alaska, Together With all fixtures, appurtenances, and buildings therein';
which order is to become effective upon the filing of a bond or cash in the amount of $10,000 to save the Molitors harmless from any and all damage that may accrue to them arising out of the giving up of the premises. Concededly, the superior court for King county cannot evict the defendants or those claiming possession by or through them from premises located at Anchorage, Alaska; so the order further provides that if it is not obeyed, the defendants' pleadings will be stricken and a default judgment will be entered against them upon application of the plaintiff.
The circumstances which gave rise to the utilization of this drastic remedy are as follows:
On April 7, 1953, the plaintiff, Alaska Airlines, Inc., and defendant Frank H. Molitor (hereinafter referred to as Molitor) entered into an agreement whereby the former agreed to sell and the latter agreed to buy, for $45,000, the plaintiff's interest in the property above described, which contains 104,000 square feet and is a portion of Merrill field, the airport of Anchorage, Alaska. The buildings referred to in the proposed order, as described in the agreement, are 'one frame building of approximate dimensions of 55 feet by 30 feet and one frame building of approximate dimensions of 140 feet by 75 feet,' and are used for hangar facilities. The real property described belongs to the city of Anchorage and Alaska Airlines, Inc., had a 'use permit' for a period of five years (comparable to a lease) which had been issued to it by the city of Anchorage on February 3, 1953. As part of the agreement of sale, the corporation agreed to assign to Molitor this so-called use permit. It is apparently conceded that the buildings were the property of the corporation.
Alaska Airlines, Inc., commenced an action in the King county superior court July 3, 1953, alleging that Molitor had failed to make certain of the payments required by the agreement; that the sale and assignment of its use permit to Molitor had been approved by the city council of Anchorage, Alaska, May 8, 1953, and that he had been notified of that fact; that he had taken physical possession of the property May 15, 1953; that while in his possession the property had suffered physical damage in the amount of $2,000; that the market value of the property had depreciated in the amount of $15,000 due to a decline in business activity in Anchorage; and that there had been a total breach of the agreement and an abandonment thereof on or before the second day of July, 1953. By its prayer, Alaska Airlines, Inc., asked for damages in the amount of $17,000; interest on $45,000 at the legal rate from and after July 2, 1953; $750 for each month from and after the seventh day of April, 1953, to the date of the breach; and for such other and further relief as to the court may seem meet and proper, 'including whatever may be required to restore to plaintiff the premises and property' described in the agreement.
Molitor's attorney wrote Alaska Airlines, Inc., July 14, 1953, claiming that it had not, within the time limited by the contract, made a showing that it was able to transfer clear title to the property covered thereby, and had breached the contract by instituting a legal action prior to the performance of its portion of the contract. The letter then stated:
It is to be inferred from the foregoing demand that the buildings be removed from the real property described, that Molitor is claiming some right, title and interest in and to the real property from some source other than the agreement which he had elected to cancel.
Alaska Airlines, Inc., filed a motion August 4th for an order directing the Molitors to surrender all right, title and possession of the premises described in the agreement, together with the buildings thereon, which motion was based on an affidavit by one of its attorneys alleging, inter alia: (a) that the Molitors had taken actual possession of the premises on or about May 15, 1953; (b) that the assignment of the use permit from Alaska Airlines, Inc., to the Molitors had been approved May 8, 1953; (c) that Molitor had, by virtue of the letter of his attorney dated July 14, 1953, elected to cancel the contract; (d) that, since the parties were in agreement that the contract of April 7, 1953, had been canceled, the continued possession of the premises by the Molitors was a continuing trespass; (e) that the Molitors were continuing in possession thereof, and that 'said premises are utilized by and purportedly leased' by Molitor; (f) that the principal item of damage claimed by Alaska Airlines, Inc., is the continuing depreciation of the premises, and to establish its damages and also to minimize them, it desires to sell the premises at the best price obtainable at the earliest opportunity; (g) that Alaska Airlines, Inc., does not believe Molitor to be financially responsible in the amount of the damage being incurred; (h) that the litigation may be protracted and the Molitors may remain in possession to the continuing detriment of Alaska Airlines, Inc.; (i) that Alaska Airlines, Inc., has no adequate remedy at law and will be irreparably damaged if the Molitors are not required to vacate the premises.
In opposition to this motion, Molitor filed an affidavit dated August 6, 1953, alleging, inter alia: (a) that Alaska Airlines, Inc., had, on May 12, 1953, abandoned possession of and any rights or interest it may have had in the premises described in the agreement; (b) that Alaska Airlines, Inc., had also abandoned any right, title or interest in its use permit; (c) that, with the knowledge and acquiescence of Alaska Airlines, Inc., the city of Anchorage had revoked the corporation's use permit; (d) that on or about May 12, 1953, the city of Anchorage issued a new use permit to the Northern Transportation & Storage Co., Inc., an Alaska corporation, which corporation, has since been and is now in exclusive possession of said premises; (e) that Alaska Airlines, Inc., has no right and can acquire no right of possession by any order of the superior court for King county; (f) that the affiant, F. H. Molitor, has no right or authority to surrender possession of the premises.
(An affidavit by one of the attorneys for Alaska Airlines, Inc., denying the...
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