Barnett v. Lincoln
| Citation | 162 Wash. 613,299 P. 392 |
| Decision Date | 14 May 1931 |
| Docket Number | 22986. |
| Parties | BARNETT v. LINCOLN et al. |
| Court | United States State Supreme Court of Washington |
Department 2.
Appeal from Superior Court, King County; D. H. Carey, Judge.
Action by John E. Barnett against W. S. Lincoln and others, as Commissioners of the Port of Seattle. From the decree defendants appeal.
Affirmed.
Bradford & Snyder and Bogle, Bogle & Gates, all of Seattle, for appellants.
Preston Thorgrimson & Turner and McMicken, Ramsey, Rupp & Schweppe all of Seattle, for respondent.
This is an appeal from a decree holding invalid a written contract entered into between Salmon Terminals, a domestic corporation, and the Port of Seattle, a municipal corporation, and enjoining the port from turning over the use and possession of certain of its properties to the Salmon Terminals. The sole question presented is: Did the port have the power--the legal right--to make the contract? The contract is too extended to be set forth in full. Its pertinent provisions are: 'The Port of Seattle offers to Salmon Terminals the use of certain of its property,' consisting in part of sheds used as warehousing space for 'storing, handling and shipping canned salmon, canned sea foods, cannery supplies, fish products, by-products, and all supplies and equipment incidental to cannery operation.' The property, the use of which the port undertook to give Salmon Terminals, embraces $334,400 square feet of warehouse space on Pier 40,' also 'the use of certain waterway areas, and the streets and railroads serving the said Pier 40.' The Salmon Terminals 'is to have preference over outside business in berthing space and use of wharves.' The Salmon Terminals 'shall furnish and keep in repair the movable equipment.' The port 'assumes responsibility for the maintenance and repair of buildings, roof-structures, and roof.'
The Salmon Terminals 'assumes responsibility for loss, damage, or injury to the premises caused by its employees, invitees, or licensees, or by any vessel or craft while docking at, lying alongside of or departing from the premises in connection with the company's business or by its occupancy of the premises other than by reasonable wear and tear or fire.' The Salmon Terminals 'will bear the expenses of operation including water, light, heat, watchman, and employees; wharf to be operated by the company including the warehousing, trucking, and all other labor involved in the handling and storage of canned salmon.'
The Salmon Terminals 'will collect upon all its business and the freight handled by it or its agents, wharfage, storage, handling and dockage charges as fixed by the Port's established tariff,' which 'full tariff rate' collected on general cargo 'shall be paid to the Port,' and 'seventy-five per cent. of the full tariff charges for wharfage and storage on canned salmon, canned sea foods, etc.' And 'it is further understood and agreed that the revenues of the Port for wharfage and storage on freight handled by the Company over the premises here assigned, including the rental at the rate of five cents per square foot per month for the area set off for offices, lockers, etc., shall not be less than Fifty Thousand Dollars in any one year.'
The contract further provides that 'in the event the buildings situated on the premises should be totally or partially lost or destroyed by fire or other casualty so' as to render them untenantable in whole or in part, 'then' it shall be optional with the port to rebuild the same, 'and the Salmon Terminals shall have the right to declare the contract terminated by written notice served on the Port,' unless the port shall, 'within ten days after such loss or damage, notify the Company in writing of the Port's intention to rebuild or restore such premises.' During such period of rebuilding, repairing, or restoring, 'the $50,000 minimum payment to the Port shall be abated in the same ratio as the portion of the premises rendered for the time being unfit for occupancy shall bear to the whole premises.'
'Office Space: The Company shall pay the Port as rental for the space specifically set forth for offices, lockers, etc. (upon which no return can be made other than from rentals) the rate of five cents per square foot per month for the respective areas so set off.'
The agreement 'shall be in effect for a period of five years from and after March 1, 1930,' and the Salmon Terminals 'has the option to renew this agreement for a like period under the same terms and conditions.' The Salmon Terminals 'is to save harmless the Port against any and all liability which may be due to its operation hereunder.' And further, 'the privilege hereby granted to the Company may not be assigned by it, nor underlet without the written consent of the Port having been first obtained.' The contract further contains certain restrictions concerning the display of advertising signs; and further provides that the Salmon Terminals in its operations will comply with all valid regulations of law and charter provisions of the city ordinances of the city of Seattle.
The parties are in dispute as to the interpretation or construction to be placed on the contract. Appellants contend the contract is a mere license or permission; whereas, the respondent maintains it is a lease. If the contract be construed to be a lease, then it is void under section 9692, Rem. Comp. Stat., which, so far as applicable here, provides: That a port district has the power 'to fix absolutely and without right of appeal or review the rates of wharfage, dockage, warehousing and port and terminal charges upon all improvements owned and operated directly by the port district itself and ferry charges of ferries operated by itself: Provided, however, that the port commission shall file with the public service commission of the state of Washington its schedule of rates and charges so fixed, as is required by the laws of the state of Washington of public service corporations, and may not change any rate or charge so filed without first filing a notice of such change of rate or charge with the public service commission not less than thirty days prior to the going into effect of such change of rate or charge. * * *'
Section 9692, supra, further provides: That a port district has the power 'to fix, subject to state regulation, rates of wharfage, dockage, warehousing, and all necessary port and terminal charges upon all docks, wharves, warehouses, quays, or piers owned by said port district but operated under lease from it; to execute leases of all lands, wharves, docks and property owned and controlled by said port district upon such terms as the port commission may deem proper: Provided, that no lease shall be executed for a period longer than thirty (30) years, and every such lease shall be secured by a bond, with surety satisfactory to the port commission, in a penalty not less than the rental for one-sixth of the term, but in no case less than the rental for one year where the term is one year or more, conditioned to carry out and perform the terms and conditions of such lease.'
Thus it will be seen that the port has two powers conferred on it by statute: First, it may operate directly its properties at rates fixed by it; or, second, it may lease its properties, which lease, however, must be secured by bond, and the rates fixed shall be subject to state regulation.
Is the agreement entered into between the parties a lease?
It is elementary that no particular words, technical or otherwise, or forms of expression, are necessary to constitute a lease, and the existence of the relationship of landlord and tenant is primarily a fact question to be determined from the intent of the parties ascertained from a consideration of the entire instrument creating the tenancy. Underhill on Landlord and Tenant, p. 242. If exclusive possession or control of the premises, or a portion thereof, is granted, even though the use is restricted by reservations, the instrument will be considered to be a lease and not a license. Nor is the reservation of rent an essential requirement. Stubblefield v. Jones (Tex. Civ. App.) 230 S.W. 720; Philadelphia Trust Co. v. Johnson (Tex. Civ. App.) 257 S.W. 280.
'A lease is a contract for the exclusive possession of lands or tenements for some certain number of years or other determinate period, and a contract for such exclusive possession is a lease although there may be certain reservations or a restriction of the purpose for which the possession may be used, and although it may be described as a license.' Woodfall's Law of Landlord and Tenant, p. 153.
Tiffany, Landlord and Tenant, p. 23.
A few cases from this and other courts will illustrate the distinction between a 'lease' and a 'license.'
In the case of Gottlieb v. Culberson's, 152 Wash. 205, 277 P. 447, it was held that where space in a general store was rented for the sale of furs, with light, heat, and janitor service furnished by the store, and 15 per cent. of the gross sales of furs charged for the space, the relation of the parties was that of landlord and tenant.
In Meers et al. v. Munsch-Protzmann Co., Inc., 217 A.D 541, 217 N.Y.S. 256, 258, an agreement 'permitting' plaintiff to occupy certain space in defendants' drug store with a soda...
To continue reading
Request your trial
-
Friends of N. Spokane Cnty. Parks v. Spokane Cnty.
...that no nexus is required between the type of taxes paid by the taxpayer plaintiff and the challenged act. ¶ 24 In Barnett v. Lincoln, 162 Wash. 613, 299 P. 392 (1931), the port of Seattle, accused of violating state law by failing to require its lessee to post a performance bond, argued th......
-
New Silver Bell Min. Co. v. Lewis and Clark County
...Palm Springs Management Corp., 116 Cal.App.2d 580, 591, 254 P.2d 153; Huus v. Ringo, 76 N.D. 763, 772, 39 N.W.2d 505; Barnett v. Lincoln, 162 Wash. 613, 618, 299 P. 392; Wilcox v. Bostick, 57 S.C. 151, 35 S.E. 496. To read the various covenants of the lease on the part of the operator-lesse......
-
Friends of N. Spokane Cnty. Parks v. Spokane Cnty., 32056–1–III.
...and that no nexus is required between the type of taxes paid by the taxpayer plaintiff and the challenged act.¶ 24 In Barnett v. Lincoln, 162 Wash. 613, 299 P. 392 (1931), the port of Seattle, accused of violating state law by failing to require its lessee to post a performance bond, argued......
-
Greater Harbor 2000 v. City of Seattle
...have stated a valid taxpayer's cause of action and have alleged facts supporting their status as taxpayers. In Barnett v. Lincoln, 162 Wash. 613, 299 P. 392 (1931) a taxpayer brought suit alleging that a city corporation executed a contract without requiring a bond from the other party as r......
-
Table of Cases
...P.2d 393 (1939): 17.2(2), 17.12(2)(j) Barnes v. Standard Oil Co. of Cal., 167 Wash. 609, 9 P.2d 1095 (1932): 17.11(1) Barnett v. Lincoln, 162 Wash. 613, 299 P. 392 (1931): 7.9(3) Barnhart v. Gold Run, Inc., 68 Wn.App. 417, 843 P.2d 545 (1993): 22.4(2) Barrett v. Monro, 69 Wash. 229, 124 P. ......
-
§7.9 - Easements Distinguished from Licenses
...(3) Extent of licenses A license authorizes the doing of some acts or a series of acts on the land of another. Barnett v. Lincoln, 162 Wash. 613, 299 P. 392 (1931). It does not grant an estate in the land and, unlike an easement, a license does not exclude the estate owner from full possess......