Omaha Country Club v. Dworak, 37558

• Decision Date: 29 January 1971
• Docket Number: No. 37558,37558
• Citation: 183 N.W.2d 264,186 Neb. 336
• Parties: OMAHA COUNTRY CLUB, a corporation, Appellee, v. Marie A. DWORAK et al., Appellants, Impleaded with Nellie E. Low, Appellant.
• Court: Nebraska Supreme Court

Page 264

183 N.W.2d 264

186 Neb. 336

OMAHA COUNTRY CLUB, a corporation, Appellee, v. Marie A. DWORAK et al., Appellants, Impleaded with Nellie E. Low, Appellant.

No. 37558.

Supreme Court of Nebraska.

Jan. 29, 1971.

Syllabus by the Court

1. A lease is to be construed as any other contract.

2. The intent of the parties is to be determined from the whole instrument and is controlling if consistent with the rules of law.

3. A written contract which is couched in clear and unambiguous language is not subject to a construction other and different from that which flows from the language used.

Cassem, Tierney, Adams & Henatsch, Daniel J. Duffy, Abrahams, Kaslow & Cassman, Gross, Welch, Vinardi, Kauffman, Schatz & Day, Frost & Meyers, Omaha, for appellants.

John W. Delehant, Robert J. Huck, Omaha, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

BOSLAUGH, Justice.

This is an action for declaratory relief brought by the Omaha Country Club, a corporation. The defendants are the owners of land which was leased to the plaintiff by four separate leases executed in 1923. This action was brought to determine the rights of the parties under the leases.

Each lease is denominated 'NINETY-NINE YEAR LEASE' and contains the following provisions:

'WITNESSETH: The lessors, in consideration of the rents herein reserved, and of the covenants and agreements herein contained on the part of the lessee to be kept and performed, do by these presents demise and lease unto the said lessee, real estate in the County of Douglas and State of Nebraska, known and described as follows, to-wit: * * *.' (Legal description of property omitted.)

'TERM

'TO HAVE AND TO HOLD THE above described real estate * * * unto the said lessee for and during the term of ninety-nine years (99), commencing on the first day of May, A.D., 1923, and ending on the thirtieth day (30) of April, A.D., 2022, unless said term be sooner terminated as hereinafter provided.

'The parties hereunto, each in consideration of the covenants of the other herein expressed (and the lessee in consideration, further, of the above demise) do hereby covenant unto and with each other as follows, to-wit:

'RENEWAL

'FIRST: The Lessee, at its option, at the expiration of fifty years, shall have the right to renew the term hereof for an additional forty-nine years, upon reappraisal of said premises by three appraisers (one appointed by lessor and one by lessee and a third to be selected by the two so selected) who shall appraise the land on a just and equitable basis and upon that basis a rental shall be paid by lessee of four per centum per annum net to lessors and upon the same conditions herein. Said option shall be exercised by notifying the lessors in writing six months before the expiration of the fifty year period. * * *

'RENT

'THIRD: The lessee covenants that it will pay to the lessors as rent for the demised premises for and during the said term of ninety-nine (99) years as follows: A sum of money equivalent to Fifteen Dollars ($15.00) per acre per year for each and every year of the term herein provided for, which rental * * * shall be payable in ninety-nine equal installments, the first installment to be paid upon the execution and delivery of this lease, and thereafter one of said equal installments shall be payable on the first day of May of each year during the term. * * *

'TAXES, ETC.

'FOURTH: The lessee further covenants and agrees to and with the lessors to pay, as additional rent for the demised premises, promptly when due, and in the name of the lessors, all water rates and all taxes, charges, liens, penalties, assessments, and all other impositions, general and special, ordinary and extraordinary, of every kind and nature whatsoever, (except inheritance and income taxes) which may hereafter during the life of this lease be levied, imposed or assessed, upon the land hereby demised * * *; it being understood that the first general annual taxes to be paid by the lessee shall be the 1923 State and County taxes, and the last general taxes to be paid by the lessee shall be the taxes levied for the year A.D., Two Thousand and Twenty-one (2021).'

The plaintiff contends that the leases provide for initial terms of 99 years at...