Moore v. Twin City Ice & Cold Storage Co.

• Citation: 159 P. 779,92 Wash. 608
• Decision Date: 29 August 1916
• Docket Number: 12942.
• Court: United States State Supreme Court of Washington
• Parties: MOORE v. TWIN CITY ICE & COLD STORAGE CO.

159 P. 779

92 Wash. 608

MOORE v. TWIN CITY ICE & COLD STORAGE CO.

No. 12942.

Supreme Court of Washington

August 29, 1916

Department 2. Appeal from Superior Court, Benton County; O. R. Holcomb Judge.

Action by Mary J. Moore against the Twin City Ice & Cold Storage Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded, with direction to the superior court to dismiss the action.

Moulton & Jeffrey, of Kennewick, for appellant.

C. B Hamblet, of Kennewick, and Lon Boyle, of Prosser, for respondent.

MAIN J.

This action was instituted by the plaintiff for the purpose of securing the forfeiture of a lease of real estate, for possession of such real estate, and for damages on account of waste claimed to have been caused by the defendant as tenant. After the action had been pending for some time, a supplemental complaint was filed, claiming as an additional ground for forfeiture the failure to pay rent, which had become due subsequent to the time when suit was begun. After the issues were framed the cause was tried to the court without a jury, and resulted in a judgment decreeing the forfeiture of the lease, the possession of the premises to the plaintiff, and $10 damages. From this judgment the defendant appeals.

The facts are briefly these: On September 9, 1913, the respondent executed and delivered to the appellant a lease for lot A of Moore's First Addition to Kennewick, Wash. By the terms of this lease, the tenancy was to begin on September 15 1913, and continue for a period of three years. The rent specified was $10 per year. The lot next adjacent on the west to that covered by the lease was owned by the appellant, and was used by it for a grape juice factory and cold storage plant. Prior to the execution of the lease, and for a period of about six or seven years, the appellant, with the consent of the owner of the lot covered by the lease, had used the same as a yard for its horses; but at no time had paid any rent therefor. Prior to the execution of this lease, the son of the respondent had tendered to the manager of the appellant a lease to be executed, with rent reserved in the sum of $1 per year. This lease the appellant refused to execute, the reason therefor not appearing in the record. The executed lease does not specify the purpose to which the lot may be devoted. Some time prior to the month of June, 1914, the appellant began the excavation for a cellar or basement under the building occupied by it as its cold storage plant and grape juice factory. In making this excavation the surface soil, sand, gravel, and rock were taken out on the east side of the lot, and temporarily placed upon the lot covered by the lease from the respondent. When the excavated material was placed upon the lot, the surface soil, gravel or rock, and sand, were separated, and placed in different piles. This was so that such of the sand as was necessary could be used in the concrete mixture for the cellar or basement walls, and that the gravel or rock could be readily moved, and the surface soil properly disposed of. Part of the rock and gravel had been removed from the lot owned by the respondent prior to the time when the suit was begun; and at the time of the trial it had all been removed, with the exception of approximately 12 yards on the northwest corner of the lot. This was left for the purpose of making a better driveway in approaching the building. The lot covered by the lease was in dimensions 50 feet by 137 feet. The terms of the lease referring to the care and preservation of the premises are as follows:

'The said lessee promises to * * * not make or suffer any waste thereof, nor lease or underlet, or permit any other person or persons to occupy any portion thereof, or improve same, or make, or suffer to be made, any alteration therein but with the approbation of the lessor thereto, in writing, having been first obtained and the lessor may enter to view and make improvements, and to expel the lessee if he shall fail to pay the rent as aforesaid, or make or suffer any strip or waste thereof.'

On June 26, 1914, the respondent, in writing notified the appellant that she elected to, and did thereby, forfeit the lease, and demanded the surrender of the premises----

'because of the waste committed on and to said above-described premises, by placing thereon large quantities of stone, sand, and gravel.'

The first question is whether the appellant had committed waste by the use to which it had put the lot leased from the respondent. Waste is an unreasonable and improper use and abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession, which results in substantial...