Nahas v. Local 905, Retail Clerks Assn.

• Decision Date: 31 October 1956
• Docket Number: P,No. 4,4
• Citation: 144 Cal.App.2d 808,302 P.2d 829
• Court: California Court of Appeals Court of Appeals
• Parties: A. S. NAHAS, Donald R. Nuss, Theo H. Erb, Ernest L. Emenegger, and W. C. Warden, Individually and as co-partners doing business under the fictitious firm name and style of Nahas Department Storelaintiffs and Respondents, v. LOCAL 905, RETAIL CLERKS INTERNATIONAL ASSOCIATION, an unincorporated association and local labor union, etc., and Ben N. Scott, Defendants and Appellants. Civ. 21729.

Page 829

302 P.2d 829

144 Cal.App.2d 808

A. S. NAHAS, Donald R. Nuss, Theo H. Erb, Ernest L. Emenegger, and W. C. Warden, Individually and as co-partners doing business under the fictitious firm name and style of Nahas Department Store No. 4, Plaintiffs and Respondents, v. LOCAL 905, RETAIL CLERKS INTERNATIONAL ASSOCIATION, an unincorporated association and local labor union, etc., and Ben N. Scott, Defendants and Appellants.

Civ. 21729.

District Court of Appeal, Second District, Division 2, California.

Oct. 31, 1956.

Gilbert, Nissen & Irvin, Los Angeles, for appellants.

Sheppard, Mullin, Richter, Balthis & Hampton, George R. Richter, Jr., and Edwin H. Franzen, Los Angeles, for respondents.

PER CURIAM.

Respondents' petition for rehearing presents arguments built upon the assumption that Nahas was a tenant or a co-tenant in possession of the parking lot, sidewalks, etc. They are misplaced. A mere right to use in common with others does not rise to that dignity.

The criterion of lease or license is presence or absence of a right of exclusive possession in the grantee, exclusive as to the landlord as well as others. When that is absent the agreement spells a license rather than a lease. Moreover, the fact that the license is not terminable at will or is coupled with a lessee's interest, does not destroy its character or convert it into a lease. 1 Tiffany on Real Property (3rd Ed.) § 79, p. 117: 'A tenancy involves an interest in the land passed to the tenant and a possession exclusive even of the landlord except as the lease permits his entry, and saving always the landlord's right to enter to demand rent or to make repairs. A mere permission to use land, dominion over it remaining in the owner and no interest in or exclusive possession of it being given, is but a license. * * * Such a person has not the possession of the land, this remaining in the licensor, and he has not, it seems, any interest in the land which he can assert as against a third person, that is, has no rights in rem.

'The question whether an instrument is a lease, creating an estate in favor of another and the consequent relation of tenancy, or is merely a license, is one properly of the construction of the language used, as showing an intention to give possession vel non. That this is so has been quite often recognized.'

Kaiser Co. v. Reid, 30 Cal.2d 610, 619, 184 P.2d 879, 885: 'As stated in Von Goerlitz v. Turner, 65 Cal.App.2d 425, at page 429, 150 P.2d 278, at page 280: 'The test * * * 'whether an agreement for the use of real estate is a license or a lease is whether the contract gives exclusive possession of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license, and this is a question of law arising out of the construction of the instrument.'' (Emphasis added.)'

This test has been accepted for many years in this state, as...