Kiernan v. Terry

• Decision Date: 31 December 1894
• Citation: 38 P. 671,26 Or. 494
• Parties: KIERNAN v. TERRY.
• Court: Oregon Supreme Court

38 P. 671

26 Or. 494

KIERNAN v. TERRY.

Supreme Court of Oregon

December 31, 1894

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by John Kiernan against Joseph Terry to recover rent. Judgment for defendant, and plaintiff appeals. Reversed.

This is an action commenced in a justice's court to recover $180 as rent for the use and occupation of certain property described as "the premises known as the 'Northeast Corner of Ross Island,' situated in the county of Multnomah, state of Oregon," which it is alleged plaintiff leased and let unto the defendant, August 1, 1892 "for a floating house or beer garden." It is further alleged that $15 per month is a reasonable rental therefor, and that defendant occupied the same for 12 months to August 1, 1893. The answer, after denying the allegations of the complaint, alleges that on or about November 1, 1891 the defendant purchased from one Tom Williams the floating house or boat, which was then anchored in the Willamette river, in Multnomah county, Or., at a point opposite the northeast corner of Ross island; that plaintiff falsely represented to him that he was liable for rent, and demanded payment thereof from November 1, 1891; that defendant relied upon said representations, and, in ignorance of his rights in the premises, paid to plaintiff, March 1, 1892, $60, and on August 8, 1892, an additional $60; that said representations were false and fraudulent, and on account thereof plaintiff has received, to the use and benefit of defendant, the sum of $120, and prays for judgment for that amount. These allegations are put in issue by the reply. The averments of the complaint appear to have been supported by the evidence, from which it further appears the actual situs of the premises for which rent is sought to be recovered is that which was occupied by the said floating house or boat fastened to piles driven in the Willamette river, opposite the northeast corner of Ross island, 55 feet from shore at low water, and between the channel of the river and the shore, so as not to interfere with the free use of the river for the purposes of navigation. The boat was originally connected with the Ross island shore by a pontoon walk, which, as plaintiff claims, was removed by defendant without his knowledge. Evidence was also given tending to show that on the 8th day of August, 1892, defendant notified plaintiff that he would not pay any more rent, for the reason that plaintiff had no rights in the premises claimed to have been leased.

Such of the instructions of the court below to the jury, of which the appellant complains, necessary to notice here, are as follows: "In this case the evidence shows, as I understand it,--and upon this there is no dispute,--that the premises plaintiff claimed rent for was fifty-five feet out in the Willamette river; and, under the allegations of the complaint that the plaintiff leased to the defendant the northeast corner of Ross island, proof that he occupied a place 55 feet from Ross island would not be proof of the allegations of the complaint." "That, in order to entitle the plaintiff to recover any sum, they must find from the testimony that the northeast corner of Ross island was rented or leased to the defendant, and that defendant leased these premises--that is, the northeast corner of Ross island--from plaintiff, and agreed to pay him this sum, or whatever was reasonable." "It is claimed that the answer sets up the manner of the occupancy of these premises, and therefore it is claimed that it aids the complaint; but I do not think it does, because there is no allegation that he occupied any other premises than out in the stream, or that he agreed to pay rent for the stream. If he had set up that he had entered into an agreement to pay rent for these premises, that would aid the complaint. But there is no such allegation; it simply says that he occupied the premises out in the river, and that Kiernan represented that he was liable to pay rent for that, and he did pay. That is all the allegation there is that he paid a certain amount of rent." "If you find from the testimony that, from the time this amount is claimed (the $180), he did not occupy any portion of Ross island,--that is, the land,--but was anchored out in the river fifty-five feet from the shore, then, in that case, you cannot find for the plaintiff, because the proof does not substantiate the allegations of the complaint." There was a verdict for defendant, and from the judgment rendered thereon plaintiff appeals.

A.C. Emmons, for appellant.

Geo. A. Brodie, for respondent.

WOLVERTON J. (after stating the facts).

Two questions are presented by this record for our consideration: First, does the proof support the allegations of the complaint as to the situs or location of the premises for which plaintiff seeks to recover rent? and, second, is the position of the defendant such that he is enabled to dispute the title of plaintiff in the premises actually occupied by him? The proof shows that the floating house or beer garden was anchored to piles driven in the bed of the Willamette river, 55 feet from the Ross island shore, and between the shore and the channel of the river, at such a point as not to interfere with the free use of the river for the purpose of navigation. The defendant paid rent to the plaintiff for the premises occupied by this floating house for the space of eight months immediately preceding the date of the alleged leasing, which rent is sought to be recovered. During the greater part of these eight months the house or boat was connected with the northeast corner of Ross island by a pontoon walk. This walk defendant removed prior to August 1, 1892. As to whether plaintiff had knowledge of this removal is in dispute, but the fact is not material. The defendant actually used and occupied the premises in question for the entire 12 months for which rent is sought to be recovered. But it is contended that this proof cannot support the action, for the reason that the description of the premises, as contained in the complaint, is so vague and indefinite as to render the lease void if...