McCarthy v. Kiernan

• Decision Date: 11 May 1926
• Citation: 118 Or. 55,245 P. 727
• Parties: MCCARTHY v. KIERNAN ET AL.
• Court: Oregon Supreme Court

245 P. 727

118 Or. 55

MCCARTHY v. KIERNAN ET AL.

Supreme Court of Oregon

May 11, 1926

Department 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Suit for injunction by J. J. McCarthy against John Kiernan and others. Decree for plaintiff, and defendants appeal. Reversed, and suit dismissed.

B. G. Skulason, of Portland (T. H. Ward and Clark Middleton, Clark & Skulason, all of Portland, on the brief) for appellants.

J. N Hart, of Portland (John R. Downes, of Portland, on the brief), for respondent.

BELT J.

Defendants appeal from a decree enjoining them from interfering with plaintiff's rights under and by virtue of a contract as follows:

"This agreement, made this 11th day of May, 1914 between John Kiernan, rentor, and J. J. McCarthy, rentee, of Portland, Oregon, witnesseth:

"That the rentor hereby grants to the rentee the exclusive privilege of mooring houseboats, launch houses, boats and all kinds of water craft along the shores and water frontage of the islands known as Ross and Hard Tack Islands, and small island adjacent in the Willamette river, in the southern part of the city of Portland, Oregon, reserving from this privilege a one-acre tract at the most northerly point of Ross Island, and also the moorage rights for logs at present enjoyed by the mill companies along the easterly side of said Ross Island, from the northerly point thereof to a point opposite and westerly of the northerly point with Hard Tack Island. Nothing in this privilege shall interfere with the rights of rentor to sell all or any part of said islands at any time provided in such case the rentee shall be given ninety days' notice to vacate such part or all so sold or leased.

"In full consideration of this privilege the rentee shall pay each month to the rentor forty (40%) per cent. of the rentals collected for such moorage. The book of accounts of the rentee showing the rentals collected shall be open at all times to the inspection of the rentor.

"The rentee shall at all times use his best endeavors to conduct the business in a proper manner satisfactory to the rentor and in an honest and conscientious businesslike way.

"Any breach or failure on the part of the rentee to fulfill his part of this agreement shall give unto the rentor the privilege of canceling the same."

We agree with respondent that the above instrument is a license and not a lease. A license is an authority to do some particular act or series of acts on the land of another for the benefit of the licensee without passing any estate in the land. Christensen v. Pacific Coast Borax Co., 26 Or. 302, 38 P. 127; Stinson v. Hardy, 27 Or. 584, 41 P. 116; 37 C.J. 279; 16 R. C. L. 549. The distinction between a license and a lease is well considered in Christensen v. Borax Co., supra. Also, see Stinson v. Hardy, supra; Klein v. Portland, 106 Or. 686, 213 P. 147; 35 C.J. 954.

It is clear from the agreement of the parties it was not intended to pass any estate in this land. Plaintiff was merely given the exclusive privilege to use the water frontage of these islands for the particular purpose of mooring houseboats, launches, and other water craft. The licensor, under the terms of this contract, could use this property in any way not inconsistent with the rights of the licensee. It is to be observed that such operative words as "demise," "grant," "lease," and "let," ordinarily found in leases, are not used in the instrument under consideration. Stinson v. Hardy, supra.

There is no merit in the contention of appellant that this agreement terminated in 1917 when the defendant, John Kiernan, conveyed this property to the John Kiernan Corporation, in view of the fact that all of the stock in the corporation was owned by Kiernan excepting two shares. The rights of plaintiff in this contract could not thus be divested. The license would terminate when the property was either sold or leased, but a bona fide sale, within the meaning and spirit of the agreement, must have actually been consummated. The law does not countenance sham and pretense.

We next inquire whether plaintiff has complied with all the terms of this contract on his part to be kept and performed. The consideration of this question involves a somewhat detailed recital of the evidence. Upon taking possession of the property, plaintiff was engaged for about a year and a half in ejecting certain alleged undesirable citizens who lived in "shacks" along the eastern shore of Hard Tack Island by virtue of what they claimed to be "squatters' rights." To oust these people from the islands, plaintiff says it was necessary to employ a tug to tow their house boats down the river and cut them loose. In some instances plaintiff was obliged to appeal to the courts for relief. The amount expended in litigation, however, did not exceed the aggregate of $55 including attorney's fees and court costs. It appears from the testimony of plaintiff that the following improvements were made preparatory to the use of this property for moorage purposes: In 1915 ten piles were driven along the shore line of the island for anchorage purposes; five "dead men," at a cost of $55, were buried near the water's edge, from which chains could be extended to house boats to anchor them on the rear end; and there was also expended for chains and pile collars the sum of $35 During this year there were six or seven house boats moored, from each of which was obtained a monthly rental of $2.50. During the years 1916 and 1917 no improvements were made, but plaintiff expended the sum of $40 for new cables and chains. In 1918, plaintiff purchased in the ...