O. L. Shafter Estate Co. v. Alvord

COOPER, J.

This action was brought to recover damages for the removal of a house and barn upon an alleged breach of a covenant to maintain fixtures. The trial court granted a nonsuit, and judgment was entered for defendants. This appeal is from the judgment. The facts are substantially as follows: On the 19th of August, 1890, the plaintiff, by an instrument in writing, let to defendants the rights of fishing, hunting and shooting upon the lands described in the instrument for the term of five years from the said date, with the privilege to defendants of renewal for another five years,

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which renewal was made, extending the original agreement, and the rights thereunder to August 19, 1900. As a consideration for the privileges granted, the defendants agreed to protect the property from fire; keep off trespassers; to prosecute all trespassers at their own expense; to hold inviolable the rights of other tenants; not to destroy fences, and in case of injury thereto to repair the same; to keep the gates closed; to maintain the fixtures, and protect the trees, shrubbery, and growing crops. The defendants entered upon the property under the contract, and, for their own uses and purposes, erected a small house and barn. The house was occupied by their gamekeeper, and they used the rooms in the house for sleeping purposes when staying over night on the premises. The barn was used for keeping the horse of the gamekeeper and the horses of the defendants when desired by them. The house was a substantial structure resting upon the ground. "When the house was being built, the ground was removed in places and the mudsills let in, or partly in, the soil. The house and barn were structures necessary to the full enjoyment by defendants of the privileges granted, and were erected by defendants at their own expense and for their own uses and purposes. Prior to the termination of the agreement, the house and barn were removed by defendants without injury to the premises. The question is as to whether the house and bam belonged to plaintiff as fixtures at the time of their removal.

Appellant contends that the instrument was not a lease, but a mere license, and that therefore the relation of landlord and tenant did not exist between plaintiff and defendants. We are of opinion that the instrument was a lease, and that the relation of landlord and tenant'was created by it. It granted to the defendants the use of and the right to occupy the lands therein described for certain named purposes. The term was fixed in the instrument. The defendants entered thereunder and for the purposes therein specified. The entry was by permission of the owner. The conditions and covenants defining the rights of the parties were set forth in the instrument. The last clause is as follows: “It is further mutually understood and agreed that any failure on the part of the party of the second part to perform any of the agreements expressed herein shall work a forfeiture of this lease.”