Heywood v. Berkeley Land & Town Improvement Ass'n

BELCHER, C. C. This is ejectment to recover certain leased premises, upon the ground that the lease had become forfeitéd and void. It appears from the record that on the fourth day of April, 1877, Z. B. Heywood leased to the de[659]fendant the Berkeley Land & Town Improvement Association, a corporation, the Berkeley Ferry wharf, with two strips of land, on one of which the wharf was constructed, for the term of ten years, at the rental of one dollar per year, payable in advance, with an agreement at the end of the term to execute “a new lease, similar in all respects to this, and to run the same period of ten years,” and “that this renewal clause shall be inserted in said new lease verbatim. ’ ’ In consideration of receiving the lease the lessee covenanted and agreed, among other things, “that said leased premises shall be used in good faith, continuously, during the existence of this lease, for the usual and ordinary business of a ferry to and from the city and county of San Francisco, and shall not be used for any other purpose whatever.” The lease further provided as follows: “And it is distinctly understood and agreed by and between the parties hereto that if default be made in any of the covenants herein contained on the, part and behalf of the said party of the second part, its successors or assigns, to be paid, kept, and performed, in any particular, as to time or circumstance, then and from thenceforth this indenture of lease shall be forfeited and become void, and it shall and may be lawful for the said party of the first part to re-enter in and upon said leased premises, and the same to have again, repossess, and enjoy.”

Immediately upon the execution of the lease the lessee put' upon the route a steam ferry-boat, which continued to run, making daily trips, and carrying freight and passengers, between West Berkeley and the city of San Francisco, until the first day of April, 1880. On that day the boat was libeled and seized by the United States marshal for money due its officers from the improvement association, and it remained tied up in the custody of the marshal until the twenty-ninth day of the month, when it was sold by him, under judicial process, to the defendant R. P. Thomas. The improvement association then assigned its lease to Thomas, and on the evening of the day of sale the boat resumed its trips, and thereafter continued to make them daily up to the time of trial.

Between the 1st and the 29th of April no ferry-boat was run between the leased wharf, or any point at or near West Berkeley and the city of San Francisco, and no other boat, except a small schooner four feet deep and twenty years old,