Kelley v. Long

Landlord and Tenant—Bule as to Forcible Eviction from Substantial Part of Premises Inapplicable to Insignificant Part.—The rule that if a tenant is forcibly evicted by the landlord from a substantial part of the demised premises, and the lease is not terminated, there can be no apportionment of rent, and the tenant cannot be compelled to pay the rent reserved, and that an actual ouster is not necessary to constitute an eviction, since any act of the lessor which results in depriving the lessee of the beneficial enjoyment of. the premises will constitute an eviction, does not apply when it does not appear that the interference has resulted in depriving the lessee of a substantial, as distinguished from an insignificant or inconsequential, portion of the demised premises.

Id.—Action for Bent—Possession of Lessee not Changed—Trespass upon Appurtenant Water Right—Damages—Rent not Extinguished.—Where it appears that the lessee sued for rent was at all times in the actual possession and occupancy of the premises and of the water rights appurtenant thereto, except that it is found that a comparatively small portion of the water was wrongfully taken with the knowledge and consent of the lessor, on or about April 1st of one year, and that the damage resulting therefrom could he measured in money was the sum of $40 only, which was deducted from the rent reserved, it is held that the act of interference amounted to no more than a mere trespass, and that there was no eviction from a substantial part of the premises that could extinguish the rent.

Id.—Consistency of Findings—Mere Passing Trespass not Inconsistent With Possession.—Since no mere passing trespass amounts to an interference with possession, the finding that the defendant had the sole and exclusive possession of the demised premises and the appurtenant water rights is not in conflict with the finding that a third party named, with the knowledge and consent of the plaintiff, interfered with said water rights, to defendant’s detriment in a specified sum awarded to defendant, on one occasion only.

Id.—Support of Finding as to Trespass—Conflicting Evidence—Respondent not Entitled to Relief.—It is held that, although there is some evidence urged by respondent which might have sustained a finding that the third person named had the right to divert a portion of the water for use on his land during defendant’s term as lessee, yet as there is some evidence supporting the finding that he was a trespasser, and not authorized to use any part of the water, this court cannot change the finding, and that the respondent, not having appealed, is not in a position 'to ask for such relief.