Eggen v. Wetterborg

• Citation: 237 P.2d 970,193 Or. 145
• Parties: EGGEN et al. v. WETTERBORG et al.
• Decision Date: 14 November 1951
• Court: Supreme Court of Oregon

Page 970

237 P.2d 970

193 Or. 145

EGGEN et al. v. WETTERBORG et al.

Supreme Court of Oregon.

Argued and Submitted Oct. 30, 1951.

Decided Nov. 14, 1951.

Harry G. Hoy, of Oceanlake (Kenneth M. Abraham, of Hood River, on the brief), for appellants.

Teunis J. Wyers, of Hood River (Teiser & Martin, of Portland, on the brief), for respondents.

Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE, WARNER and TOOZE, JJ.

TOOZE, Justice.

This is an action of ejectment, brought by Melvin A. Eggen and Jean Eggen, as plaintiffs, against Evelyn H. Wetterborg and John Doe Briscoe, as defendants. The case was tried to the court without a jury. The court made general findings of fact and entered judgment in favor of plaintiffs. Defendants appeal.

On September 24, 1945, one Lottie L. Hasbrouck, then the owner of the premises involved in this litigation, as lessor, entered into a written lease with one James Rich, as lessee, the material portions of which lease are as follows:

'Witnesseth: The Second party [lessee] shall pay as full rental for the premises during the effective term of this lease, the following amounts at the following times: The sum of Forty Dollars ($40.00) per month plus one-half cent (1/2cents) per gallon for each gallon of gasoline, irrespective of grade, delivered to the herein described premises by Second Party. The sum of Forty Dollars ($40.00) is to be paid on the first of each month in advance, while the gallonage rental is to be paid on or before the twentieth day of each calendar month following the calendar month in which deliveries are made. * * * (Italics ours.)

'It is further understood and agreed that in the event the Second party defaults in payment of the rent for a period of one (1) month, First party [lessor] reserves the right to enter upon and take possession of said premises, and to lease said premises or sell the same, and this Agreement and Lease shall be null and void.

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'The said First Party does hereby demise and lease unto the said Second Party her property known as the Loop Service Station, situated East of the City of Hood River, County of Hood River, State of Oregon, together with all buildings and service station equipment thereon. Said premises are more particularly described as follows, to-wit: (Here follows description by metes and bounds.) (Italics ours.)

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'The term of this lease shall commence as of the 1st day of October, 1945 and shall continue to and including the 30th day of September, 1950.

'In consideration of the premises and the other considerations herein specified The First Party gives and grants to Second Party the exclusive option and privilege of extending the term of this lease for Five (5) years upon the same terms and conditions as for the original term and at the same rental hereinafter [sic] specified; to commence if said option is exercised at the expiration of the term herein granted. Second Party shall give written notice to First Party of his election to exercise this extension option not less than sixty (60) days before the expiration * * *.

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'The said Second Party will keep said premises in good and tenantable repair, externally and internally, for gasoline service station purposes, during the term of this lease and will make no additions or alterations to or upon said premises without the consent of the said First Party first being obtained in writing. (Italics ours.)

'The said Second Party will not assign this lease to any party or parties, firm or corporation * * *.'

For some time immediately prior to the making of said lease, the said Lottie L. Hasbrouck had been engaged in operating a gasoline service station on said premises under the name of 'Loop Service Station' and had bought and sold oil products of the Richfield Oil Corporation. On the top of the service station building was a Richfield sign, which was maintained after the lease was entered into.

Before and at the time this lease was entered into, as well as at all times since, the said James Rich was and is engaged in the business of selling and distributing, at wholesale, oil products of the Richfield Oil Corporation as a commission agent of said corporation.

On December 1, 1948, James Rich, as the first party, entered into a leasing agreement in writing with plaintiffs, as second parties, which, in part, reads as follows:

'The Second Party shall pay as full rental for the premises during the effective term of this lease, the following amount at the following time: the sum of Forty Five ($45.00) is to be paid on the first day of each month in advance. * * *

'The said First Party does hereby demise and lease unto the said Second Party the property known as the Loop Service Station, situated east of the City of Hood River, County of Hood River, State of Oregon, together with all buildings and service station equipment thereon. (Italics ours.)

'The term of this lease shall commence as of the 1st day of December, 1948 and shall continue to and including the 31st day of August, 1950, with an option of renewal for five (5) years by the Second Party. Second Party shall give written notice to First Party of his election to exercise this extension option not less than sixty (60) days before the expiration of this Agreement and Lease.

'The said Second Party will keep said premises in good and tenantable repair, externally and internally, for gasoline service station purposes, during the term of this lease, and will make no additions of [sic] alterations to or upon said premises without the consent of the First Party * * *.' (Italics ours.)

During their occupancy of the premises, plaintiffs gave their principal attention to the operation of a beer tavern in the service station building on said premises, though they continued the retail sale of gasoline.

On or about October 10, 1949, the buildings and service station equipment located on the land covered by the lease agreement were completely destroyed by fire. At sometime prior to the fire the premises in question, subject to the original lease, had been conveyed by the original lessor, Lottie L. Hasbrouck, to the defendant Evelyn H. Wetterborg.

Shortly after the fire, the defendant Wetterborg and her agents, proceeding upon the theory that the complete destruction of the service station buildings and equipment by fire terminated the lease, went upon the premises and took possession thereof for the purpose of removing the debris therefrom and constructing a new building thereon.

Plaintiff then instituted this action to recover possession of the premises.

No question is raised here respecting the exercise of the options to renew contained in the lease and sublease.

As their first assignment of error, defendants contend that plaintiffs, being sublessees, have no legal estate in the premises sufficient to qualify them to bring an action of ejectment against the principal landlord. The trial court ruled against this contention, and defendants assert that the court erred in that respect.

It is true, as defendants contend, that to qualify as a plaintiff in an action of ejectment, one must have a legal estate in the property involved, as well as a present right to the possession thereof. Section 8-201, O.C.L.A., provides: 'Any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession * * * by an action at law. * * *'

It is our opinion that the plaintiffs, under their sublease, did have a 'legal estate' in the premises within the meaning of this statute.

In 1 Tiffany, Real Property (3d ed.) 143, § 94, the following rules are stated:

'One who holds land as tenant of another has the possession of the land, unless he has divested himself of the possession by creating a subtenancy, in which case, applying the same rule, the subtenant has the possession. (Italics ours.)

'Possession involves not only the exercise of acts of ownership over the land, but also the exclusion of the exercise of such acts by others. That is, possession is necessarily exclusive * * *.

'The principle that the tenant has the possession of the land applies as against his landlord as well as against third persons, and consequently an unauthorized entry by the landlord renders the latter liable to an action of trespass quare clausum fregit, or its statutory equivalent, at the suit of the tenant. And since the lessee or other person claiming under the lease is entitled to the possession as against the landlord, he may maintain ejectment against the latter if excluded by him from the possession unless he has made a sublease, thereby putting the right of possession in another.' (Italics ours.)

Leaving out of consideration for the moment the effect upon the lease and sublease arising by reason of the complete destruction of the buildings and equipment, which will hereafter be discussed, and considering the matter solely as though no fire had occurred, the plaintiffs had a present right to possession of the premises. That right could be lost only by termination of their sublease by their immediate lessor for nonpayment of rent as in the lease provided, or by the termination of the original lease by the landlord for failure of the lessee therein to pay rent as required by the agreement. The right to possession on the part of plaintiffs was exclusive as against their own lessor and also the principal landlord. They are proper parties plaintiff in this action, and the trial court did not err in so holding.

As their second assignment of error, defendants contend the trial court erred in not holding as a matter of law that the complete destruction of the buildings and equipment worked a termination of the original lease, and with it, the sublease.

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