Friedman v. Macy

Cope, J. delivered the opinion of the Court Baldwin, J. concurring.

This suit was brought to enjoin the defendant from removing a building erected upon a lot situated in what is known as the Government Reserve, in the city of San Francisco. The case was heard upon the complaint and answer, and an injunction was granted as prayed for in the complaint. For the purposes of the action the matters set up in the answer are to be taken as true. The facts on both sides are clearly and explicitly stated. It appears that in 1849, E. D. Keyes, an officer of the United States Government, executed on behalf of that Government a lease of certain property, including the lot in question, to Theodore Shillaber, for the term of ten years. This lease contains a clause giving to the lessee the right to remove any buildings erected upon the property during the continuance of the lease.

It is contended, and seems to be conceded, that this lease was originally void; that the property belonged to this State, and that the Government of the United States had no right or authority to lease it.

[230]In March, 1851, the Legislature passed an act, commonly known as the Water Lot Act, containing the following provision : “ The property known as the Government Reservation is exempt from the operation of this act, except that any estate held by virtue of any lease or leases, executed or confirmed by'any officer of the United States, on behalf of the same, shall be and are hereby granted and confirmed to the lessees thereof, and the written instrument whereby such lease or leases were made, shall, in all actions brought by the lessees for the recovery of the lands demised, be sufficient evidence of title and possession to enable the plaintiff to recover.”

The defendant has succeeded to the interest of the .lessee in the lot in question, and the building which he claims the right to remove was erected by him for commercial purposes. The plaintiff acquired his right to the property under a grant from the State, made subsequently to the passage of the act to which we have referred.

It is unnecessary for us to consider the question of the right of the defendant to remove the building, upon the ground that it was erected for the purposes of trade. We are of opinion that the right to do so results from the language used in the confirmatory clause of the Act of 1851. The effect of this clause, if not to give validity to the lease,, certainly was to secure to the lessee the possession and enjoyment of the property, for the time and in the manner therein named. The intention was to confirm to the lessee the particular estate named in the lease. The language is, “ that any estate held by virtue of any lease or leases,” etc., “ shall be and the same are hereby granted and confirmed to the lessee thereof.” Admitting that this language did not amount to a confirmation of the lease, so as to give effect to all its provisions, it was evidently intended to confirm to the lessee the same estate and interest, with like privileges and immunities, as provided for in the lease itself.