The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-10-05
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representations INTO executing said pretended
lease and that in fact the plaintiff neither had
possession right of possession az i'm
proved, OF said premises before that time, then
your verdict must be Tor the defendants.
III the jury believe from the evidence
that the defendants were in actual possession
OF the property described In the complaint at
the time Ii is alleged they signed the lease, on
September is, 1889, and that no agreement for
lease had bsen made, and their signing the same
was induced by and founded upon the repre-
sentation that the plaintiff was the owner of
said property or had the right to lease the same,
such fact does in law amount to imposition and
deceit, and such lease so signed does not estop
the defendants from inquiring into the right of
the plaintiff TO lease said property
The court further charges you as matter OF
law, that if defendants did not obtain posses
sion from the lessons under the lease OF Septern-
Der l6, 1889, or did not gam possession thereof
under an agreement to lease, but were already
in possession, and That, 1T they entered into said
lea G in ignorance OF any defect in the right of
lessons 70 lease. then they may show that The
person described in said lease as lessor was not
entitled to possession, or that plaintiff had no
right or power to lease said premises
Il the jury are satisfied IRON the evidence
that the defendants did not enter into the nos
session OF the premises in controversy under
the alleged lease of September is, 1853, or under
any agreement TO lease said premises and that
they accepted said alleged lease under a mis-
take of facts in prejudice of their own rights,
then the defendants are not bound by said al
legged lease, unless they satisfied the said lease
by continuing in possession OF said premises
and paying rent therefor.
If the Jury shall find that the defendants or
either of them had conversations with one
krug, or made declarations to one Krug con-
corning Their expectations of leasing the prop
erty, and that such declarations were made in
ignorance of their own nghts, or Ia ignorance of
the title of the plaintiff, or under q mistake of
facts, or by Misrepresentation of the plaintiff
then such declarations may be oisregarded by
the jury.
bare proposition to lease lands involves
representation that the person proposing to
lease the same Is the owner thereof or that he
has right o. possession or some interest therein
or right to lease the same, and II he be not such
owner or have not such interest or possession or
have no right to lease the same, then such rep
resentation Is false and ii the jury believe from
the evidence that, under such circumstances,
the defendants in this case while In possession
did take lease, you have perfect right, IL you
so believe, to account for this act OF the defend
ants upon the theory that they were Influenced
by this expressed or implied representation.
If the jury should find from the evidence that
the defendants were in actual, open and visible
possession of the premises in question before
the plant II had possession thereof, and before
the execution of the lease offered In evidence,
and that the plaintiffs had not made any inn
provements on said premises, and never had
been in possession OF said premises and did not
give possession thereto to defendants, then, IL
you should SO find, the plaintiffs would have no
right TO lease said premises.
The following instructions were given by the
court on Its own motion:
For the purpose of further guiding and assist
they shall lind the same to be in this case, the
court instructs the jury as follows: That the
land in the territory Of Washington, lying below
ordinary high tide in the waters of Puget sound,
was held by the United States in trust for the
future state OF Washington, subject, however,
to the right OF the territorial legislature to pass
such law regulating the use and occupancy of
such lands as il might deem proper, not incon-
sistent with the rights of the future state.
The territorial legislature had no power by
legislative act or otherwise to dispose of or to
authorize perSOu. CORPORATION milnlC1Dal-
ity to dispose OF the title to such lands and no
title can be predicated or based upon such acts.
At any time prior to the 10Th day of March,
1890, any person or corporation had right to
enter upon any OF the tide lands in said territory
or state and erect wharves and valuable i'm
provements thereon for the purpose of use in
son or corporation so making such improvements
and taking possession for such purposes, before
said time, were not aud not guilty of any
unlawful act in taking and remaining in pos
session of such premises.
The legislature of this state has provided that
such person or corporation making such i'm
provements and In possession thereof at the
time above mentioned shall have the first right
to purchase such tide flats so used.
Any person or corporation who had before
that time erected valuable Improvements for
the purpose OF commerce, trade or business,
and in possession thereof, had and have right
to lease such improvements and premises to a
tenant just the same as other property, and such
right was not abridged or changed by the adop-
ton of the constitution OF this state.
This right to hold and use such property
above mentioned and described 10 vested only
in such person or corporation who shall first
make such Improvements for the use and pur-
pose mentioned and remains in such possession
and use. tenant OF such person or corpora
tion who should enter into possession of such
improvements and premises after such improve.
ments should be made BY consent of the i'm
proven. could gain no rights as against such i'm
proven, even If he should make additional i'm
provements thereon.
Gentlemen of the jury, the court further in
y hat fvA
ance OF the evidence in this case, prior to June
6, 1859, the plaintiff had erected and was the
owner OF valuable Improvements on or near the
premises In controversy and that said premises
were in the actual possession of the plaintiffs
and used by them for the purpose OF trade and
commerce, and that on said 9th day OF June,
1889, the said improvements 80 owned and used
were destroyed by fire, then you can so find, the
court instructs you that the plaintiffs had
q right to continue in possession of
such premises after the Improvements thereon
had been destroyed by fire and to erect on the
same premises such other improvements as
they saw fit such possession, il you find that
there was such possession, was q lawful one,
and 1t matters not if such premises were stu.
sted on the tide fats and the title thereto was
in the future state and held by the government
OF the United states in trust for the state of
the plaintiff could or did acquire to such prem
Uses was simply right of use and possession,
clusively by the plaintiff, was good and valid as
against the whole world, except the state of
Washington and its grantees, and such right
was not extinguished by the admission of the
state into the Union or by the adoption of the
state constitution, but continues until the state
by or through its lawfully constituted agents or
officers or its grantees shall demand actual pos
session thereof.
And If the jury should further find from tha
evidence that the plaintiff did retake or con-
tinue its possession Of the jury believe from the
evidence the plaintiff had possession OF said
premises prior thereto), after the improvements
thereon had been burned, and erected on the
premises in controversy valuable improve
ments, in the way Of wharing and
buildings thereon, before the defendants
went into possession thereof, and
that plaintiff continued in possession thereof
then, If you so find from a prepondereuce of the
evidence, the law il that the plaintiff had a
right to lease said premises and improvements
10 the defendants on such terms as they might
agree upon and collect rent accordingly, and in
such use IL matters not IL plaintiffs did or did
not have title to sucn premises
The court further instruets the Jury that the
question OF title Is not involved in this case but
simply the right of possession of the premises IN
controversy. Therefore, If the jury shall find / v
preponderance of the evidence that the plaintiff
was in possession of the premises in confro
yersy and had erected thereon valuable Improve
possession thereof, and that the defend
ants were let into possession OF
said premises ,,t by the plaintiff, under
or under an oral agreement or mutual under
standing that possession should be taken and
the lease IN question should be executed after
wards aud that the defendants had no other or
different possession than a possession acquired
under the plaintiff, and that defendants fully
understood the nature and extent OF the piaiIl-
tif' rights IN md ana hat 70 the premises
Misrepresentation was used by the plain
tiff TO induce the defendants TO eater
into the contract of leasing the premises neu-
toned. then the defendants were and s5iIl are
bnuud nv the terms of said lease and rn,s4 thar