Pease v. City of San Diego

BARNARD, P. J.

This is an action for declaratory relief for the purpose of determining the validity of a lease.

On August 2, 1926, the State Board of Harbor Commissioners leased certain tidelands in Mission Bay to the plaintiff for 50 years for a rental of $30 per month, together with 5 per cent of all gross income from the leased premises. The lease also required the plaintiff to expend, or cause to be expended, $10,000 within 10 years from the date of the lease, in making improvements upon the leased premises. It further provided that “said improvements” should consist of dredging upon said lands or in the area in front of, around or surrounding the same; in the construction of various things including canals, waterways, streets and sidewalks; or in “all facilities necessary or required for residences or club house, places or purposes in, upon, through, over and adjoining said leased property.” It was then provided that if the parties were unable to agree upon the amounts or values of any such improvements during the period prescribed, such amounts or values should be determined by arbitration in the manner therein provided.

During the pendency of the Mattoon assessment situation the rentals called for by this lease became delinquent for a considerable period. Early in 1945, the plaintiff sought to ascertain what was necessary in order to bring the lease up to date. Being advised by that body that it was then in charge of administering tidelands and leases in Mission Bay, the plaintiff sent $3,937 to the State Land Commission on April 30, 1945, “for bringing this lease fully up to date.” He also enclosed a check for $30 as payment of the rental from May 2 to June 2, 1945. The State Land Commission acknowledged

[388]

receipt of these amounts and sent the official receipts which bore the notation “Does not include 5% of gross income stipulation.” Thereupon, the plaintiff made this 5 per cent payment. The plaintiff then paid, and the state accepted, the monthly rental to and including September 2, 1945. The state then advised the plaintiff that this lease and the leased premises had been transferred to the city of San Diego, and that future payments of rental should be made to the city. The plaintiff then made the regular monthly payments to the city, beginning October 2, 1945, which payments.it accepted and retained.