Harrington v. Watson

• Decision Date: 01 October 1883
• Citation: 11 Or. 143,3 P. 173
• Parties: HARRINGTON v. WATSON.
• Court: Oregon Supreme Court

3 P. 173

11 Or. 143

HARRINGTON v. WATSON.

Supreme Court of Oregon

October, 1883

Appeal from a judgment of the circuit court for Multnomah county entered in favor of the plaintiff.

Forcible Entry and Detainer 5

LORD J.

This was an action of forcible entry and detainer. It is brought to this court by an appeal from the judgment of the circuit court for Multnomah county, affirming the judgment of the justice's court for Morrison precinct, and giving judgment in favor of plaintiff for restitution of the premises described in the complaint, and for the sum of $1,820 for the use and occupation of the same. Briefly, the cause of action arose out of this state of facts: The plaintiff is the owner of lot 8 in block 15 of the city of Portland, upon which had been erected a wooden building containing several rooms. On the second day of December, 1878, the plaintiff leased to the defendant one of the rooms in said building for the term of five years, for a certain monthly rent, payable in advance and the defendant, by virtue thereof, entered into possession of said room and remained in the quiet and peaceful possession of the same until the twenty-fifth day of September, 1882, when the building, including said room, was totally destroyed by fire. On the twenty-fifth day of September, 1882, without the knowledge of plaintiff, the defendant moved upon said premises another wooden building and occupied the same, and, on the first day of November 1882, the plaintiff served a written notice upon the defendant to quit, and also demanded the possession of the premises, which the defendant refused to deliver up, or any portion thereof. Upon this state of facts the plaintiff brought an action of forcible entry and detainer, alleging, among other things, "that on the twenty-eighth day of September, 1882, the defendant unlawfully and by force took possession of said property, and ever since said time has maintained, and does now maintain, possession of said premises unlawfully and by force;" all of which the defendant, by his answer, denied, and set up the lease as a defense to his action.

Upon issue being joined the cause was tried, by agreement of the parties, without the intervention of a jury, with the result as above stated. The findings of fact by the court will be referred to hereafter, so far as the same may be necessary to the decision of this case. The first question presented for our consideration is, did the total destruction of the building in which was situated the room occupied by the defendant terminate the lease? The particular language of the lease, out of which this contention arises, is as follows: "That in consideration of the covenants herein contained on the part of the said Thomas Watson, to be kept and performed, I, the said D.F. Harrington, do hereby lease, demise, and let unto the said Thomas Watson, the following property, situate in the city of Portland, county of Multnomah, state of Oregon, to-wit, the room on the corner of North First and F streets, having 16 feet frontage on North First street, and 50 feet deep on F street, and located in the one-story building now erecting on lot No. 8, in block No. 15, on the corner of said North First and F streets, the same being in Couch's addition," etc. Whatever hardships it may involve, the doctrine of the common law undoubtedly is that whenever lands and buildings are leased, and the tenant expressly agrees or covenants, without limitation or qualification to pay rent for a certain term of years, he is not released from that obligation by the destruction of the buildings leased by accidental fire.

In Hallett v. Wylie, 3 Johns. 44, the court say: "We think it may be safely said there is not a case in the books where the destruction of the demised premises by fire has been held to excuse the tenant from the payment of the rent on an express covenant; but in every case where a defense on that ground has been attempted, it has failed." And, later, in Gates v. Green, 4 Paige, Ch. 355, Chancellor WALWORTH said that "it must now be considered as settled, both in England and in this state, that a lessee of premises which are burned has no relief against an express covenant to pay the rent, either at law or in equity, unless he has protected himself by a stipulation in the lease or the landlord has covenanted to rebuild." 3 Kent.Comm. 446; Wood, Landl. & T. 814, note.

The authorities, however, indicate that there is an exception to this rule that the destruction of the building does not discharge the liability of the tenant for rent where the lease is of an upper story or basement or apartment in a building, because in such cases, the courts say, it is not the intention of the lease to grant any interest in the land further than is necessary for the enjoyment of the rooms so demised, and when these are destroyed, there is nothing upon which the demise can operate, and the lease terminates with the estate. McMillan v. Solomon, 42 Ala. 356; Austin v. Field, 7 Abb.Pr. (N.S.) 34; Graves v. Berdan, 26 N.Y. 498; 29 Barb. 100; Kerr v. Merchants' Exchange, 3 Edw.Ch. 316; Winton v. Cornish, 5 Ohio, 477; Womack v. McQuarry, 28 Ind. 103; Stockwell v. Hunter, 11 Metc. 448; Ainsworth v. Ritt, 38 Cal. 89; Shawmut Nat. Bank v. Boston, 118 Mass. 128; Whitaker v. Hawley, 25 Kan. 674.

Our first inquiry, then, must be to ascertain whether it was the intention of the parties, to be gathered from the whole lease, to grant to the lessee any estate in the land. Now what is the principal thing granted, demised, and for the enjoyment of which the defendant has covenanted to pay rent? The language of the lease is, "the room on the corner of North First street, etc., and located in the one-story building now erected on lot 8, in block 15," etc. It is clear that it is not the whole building or house, but only a certain room located in that building, which is the principal thing demised or rented, and for which a description was necessary to identify it and...