The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-10-05
TEST CASE DECIDED.
Courts Instructions on Rights
OF Tide Land Improvers.
sTATEALoNE HAS HIGHER CLAIM
Judge Osborn's Opinion in the Hall q
Paulson Case Settles Important
Points of Law.

The case OF the Hall Paulson Furniture
Company VS.. Wilbur d johnson, which occupied
the civil department of the superior court the
greater part OF last week, is an important one,
as IL involves the rights of great number of
persons occupying property on the tide flats as
iessees The jury decided in favor ofthe plaintiff
In this case. Following is the full text OF Judge
osDorns instructions to the jury, which, If the
supreme court does not reverse it, will be an i'm
portant precedent IN trials of cases involving
possession of tide lands:
The following instructions were upon motion
of the plaintiff
This action is brought by the plaintiff to re-
cover the possession OF lot or parcel of land,
described III the complaint as follows:
commencing at point on the east line of
commercial street produced, which point is
seventy feet south of the intersection of the
south line of Weller street with the east line of
commercial street, the point OF beginning,
Thence east eighty feet, thence north thirty -four
feet, thence west eighty feet. thence south
shirty-four feet to the place OF beginning, all in
seattle, King county, Washington.
Plaintiff claims that it was in possession of
the premises described in the complaint on the
10Th day OF september. A. d. 1859, and that it
was entitled to the possession of the same that
at that time, being so in the actual possession
OF the lot parcel of land described in the
plant, 1t leased the same to the defendant
herein, b. written lease demise for thu term
OF i've years, and that said defendant entered
into the possession OF said lot or parcel of land
possession ever since. and now is in possession
OF the same; that the rent reserved in said lease
or demise was paid by the defendant to the
plaintiff up to January, A. ID. 1891, and that said
rent was paid by defendant monthly; that since
said aforementioned date defendant has refused
to pay rent, and has refused, though demanded,
10 denver up the possession OF the premises to
this plaintiff.
Iinstructyou that it is an elementary principle
OF law that the tenant cannot dispute his land
lords title, and If you find from the evidence
that the defendant duly executed the lease
ferred TO In the complaint and offered in evil
dence. and entered into possession OF the lot or
parcel OF land described in the complaint under
anu by virtue of said lease and remained in
possession under the lease, then instruct YOU
that the defendant cannot dispute question
the title of the plaintiff to the land in coatro-
versy. Under such circumstances it will make
no difference whether the paintif actually had
any title or not, the defendant Is estopped to
deny the title of the plaintiff
The plaintiff claims that on the 10th day OF
September, A. ID. 1889, this plaintiff and the de-
tendant entered into a certain written lease or
demise, which lease among other things pro-
vided for the payment of s34 per month, to be
paid monthly in advance by said defendant TO
the plaintiff herein as rent for the premises de-
gcribed in the lease.
The plaintiff further claims that the defend
ant entered into possession of the premises
described in the complaint under said lease and
has remained in possession OF said premises
ever since, and that defendant paid the monthly
rent reserved in said lease up to the LIST day OF
January, A. d. 1891.
The plaintiff further claims that said defend
ant has failed. neglected and refused to pay the
rent so reserved since said last men
toned dste or any part thereof;-that
| the 4th day of February, A. d. 1891, this
| plaintiff caused notice in writing TO be served
| on said defendant, requiring him to pay the
rent then due for months OF January and
February, A. ID. 1891, within ten days after the
date of service OF such notice. or in case OF his
failure so TO do to deliver up to the said plaintiff
the possession of said premises
The plaintiff further claims that this notice
| was served on the 4th day OF February, 1891, by
doll rfu a YlGr q N in
the county of King, and state of Washington.
And it is further claimed by plaintiff that de-
fendant has failed to pay any portion of said
rent so due, or to deliver up the possession OF
said premises to the plaintiff
instruct you, if you fnd from the preponder-
ance OF the evidence, that these claims of the
plaintiff are true, and that the facts are in ac-
cordance with such claim. by a preponderance
OF the evidence, then 1t will be your duty to
find the defendant guilty of unlawful de-
tainer of the premises described in the COM
plant, and to find the amount of the rent I'D to
the fling of plaintiffs plant
You are instructed that lessees under a claim
ant or occupant of land are bound by the stpu-
lations of their lease to surrender the land on
the termination of their lease, and stand in no
position to claim right to said land adverse to
their landlord. Their possession is In law his
possession. The contract Of lease implies not
only a recognition Of his title, but promise to
surrender the possession to him on the termina-
ton of the lease. They therefore, whilst retain
ing possession, are estopped to deny his rights.
The instructions asked for by defendants were
refused and modified by the court SO as to read
as follows:
This is an action OF unlawful detainer brought
by the plaintiff under the acts of the legislature
OF the state OF Washington OF 1889 and 1890 to
cover the possession OF the premises described
in the complaint, together with the sum of SOS,
rent alleged TO be due from the defendants to
the piainti Il Tor the use and occupation of said
premises under and by virtue OF the terms of the
ALLEGED lease introduced in evidence before you
| In this cause.
Before the plaintiff can recover in this case il
hrr Fofw vNro q
| the testimony-First, that at tue time ii de-
manded possession of said premises from de-
PENDANTS it, plaintiff, was entitled to the posses
| sion of the same; second, that the rent was ac-
| tually due from defendants Tor said premises
| and that plaintiff was entitled to receive and
| collect said rent. By the term entitled to the
possession of the premises / mean you must
| fluid before you can render verdict In favor of
the plaintiff, that the plaintiff was entitled to
| the possession of said land against defendants.
| l further instruct you that it is incumbent on
the plaintiff 10 establish by fair preponderance
OF the evidence the actual existence of the rela
ton OF landlord aud tenant before IL can re-
cover. To establish this relation il is necessary
for the plaintiff 10 show that at the time OF the
execution OF the lease the plaintiff had some
| premises described, which plaintiff, by virtue
| OF such lease, actually conveyed to de-
Pendants, who under and by virtue Of
| interest in said premises. A mere
! squatter on the tide lands held in trust by the
United States for the future state of Washing
| ton has not such an estate IN the land witho1,
substantial Improvements and partial posses
sion as would authorize him to lease the said
premises. The relation of landlord aud tenant
| is not necessarily established by the lease,
but IL is fact, which must exist inde-
pendent of the lease and OF which
the lease Is merely evidence. There
fore If you should find from the evidence in this
case that the plaintiff was a mere squatter upon
land held in trust by the United States for the
| future state OF Washington, without having
made any substantial Improvements thereon
and had not actual possession thereof, as de-
fined by the instructions OF the court, then |
/ further instruct you that the alleged lease in
troduced in evidence i'll this case did not, and
| could not, create the relation OF landlord and
tenant
| ASH have hereinhefore intimated to you, gen.
| temen, the plaintiff in this case cannot recover
unless you find by Il fair preponderanee of the
| testimony that the defendants owe IL some
| amount Of money rent for these premises,
| and in determining tile question az tn whether
| the defendants are indebted 10 the plaintiff Tor
rent of these premises YOU must find as a matter
| OF fact that the plaintiff has some estate in the
| land in question ana that by virtue of such
| estate and the relation of landlord and tenant
the plaintiff is entitled 10 recover rent or some
portion OF the rent alleged 10 De due. If, there
| fore, you should find, under the evidence and
instructions of the court. that the plaintiff
never hsd any estate or rig OF possession in the
promises attempted 10 be leased, then you must
| ind Tor the defendants.
The defendants. by their answer, as an affirm
| etive defense alege that prior to the execution
! of the alleged lease introduced in evidence be-
lore you, they were in possession of the prem
4. .fyf.A sv,s F.f thuf b.