The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-05-09
.LESSEES GOING TO FIGHT.
The City's Tenants at Fifth
and Market Streets Have
Combined.
THEIR POINT OF CONTENTION.
Lawyer Wallace Declares That the
Terms Of Bid Notice Are
Binding.

The lessees of the Lincoln School prop
erty are much disturbed over the question
which has arisen relative to the ownership
of the improvements on the land. They
have united, and engaged the services of
an attorney, and are now prepared to
make strong fight. Upon the advice of
the City and County Attorney Harry Cres-
well, will depend the future action of the
Board of Education in the matter. What
this opinion will be cannot be known at
present. Mr.. CresweQ declines to discuss
the matter, pointing out the manifest dis
g. courtesy of such a course to the Board of
Education. 81 can say nothing at all
about this matter at present" said Mr.
Creswen. II have been asked for an
opinion in the matter, and until it is fled
with the board it would hardly be the
proper thing to give out anything en-
bodied in this instrument for publication.
II were to express an opinion for publ
cation relative to the question involved, in
advance of the written document, the
Board of Education people would have a
very just cause Of complaint"
The attitude Of the lessees is very clearly
defined by brief filed yesterday by their
attorney, Ryland B. Wallace, with the City
and County Attorney. 1t reads asfollows
SAN Francisco, May 7, 1895.
Harry 7. CreS,Ceu Esq, City and County At
tOrncy-DEAR SIR: Under date of April % last
the secretary of the Board of Education trans
mitted to You copies OF original and supple
b mental reports of the Judiciary Committee of
the board on the question OF the ownership Of
the improvements erected by the lessees OF por-
tons OF the Lincoln School lot, on the corner
of Market and Fifth streets, now held under
leases executed by the Board of Supervisors
under an act Of the Legislature approved
March so, 1874.
To the supplemental report there is attached
copy of the proposals inviting bids on these
lots promulgated by the Board of Supervisors,
and upon which such bids were made. Those
proposals contain the following proyision:
"Au Improvements on said lots, unless pur-
chased by the City and County, shall be re-
moved at the expiration of the lease by the
owners thereof upon thirty days notice being
given by the Mayor of the City and County, and
said lease, the right shall be forfeited and the
ownership of the same shall vest in the City
and County of San Francisco" And also q
stipulation that upon non-payment of rent the
forfeited to the City. The land to be leased
was unimproved and the term was to be twenty
years, expiring with August OF this year. Bids
were made in accordance with these proposals
and the present occupants of the land are the
parties or their successors, who made the high
est bids for the property as subdivided, and
who erected the Improvements upon the de-
missed premises. Bids having been received
under the said proposals, leasesof subdivisions
of the school lot were afterward executed by
the City to the parties making the best offers
therefor. The leases are absolutely silent as to
Improvements.
Under these conditions there can be no doubt
of the ownership of the buildings in question,
unless the silence OF the leases shall enable the
City to avail itself of the principle of law that
In the absence of contract between landlord
and tenant, permanent structures placed by
the tenant upon the demised premises belong
to the landlord. But, as before intimated, the
proposal and bid constitute a contract in this
regard; that contract subsists and controls IN
less 1t is repugnant to the written lease signed
the parties. In other words, these improve
ments belong to the tenants as matter OF law,
unless evidence OF that understanding cannot
be adduced upon the ground that it would in
terfere with the terms OF the written agree
ment, I. G., the lease. The general law is IN
dOubtedly that extrinsic evidence will not be
received TO vary the terms of written instru-
ment. Where, however, the instrument is
silent as to any OF the terms OF the agreement
evidence OF such omitted terms cannot be said
70 vary, alter or affect the terms of the writing
This exception TO the general rule is abund-
antly sustained by the authorities.
Many other authorities might be mentioned
to the same effect, Enough, however, have been
cited to establish the rule that collateral
agreement relating to the subject matter of a
written contract and not repugnant 10 what is
stated in said writing is valid and binding
upon the parties. The leases in hand do not
mention improvements, and this intrinsic con-
affect their terms. 1t speaks upon subject
upon which the writing is silent-determine
matter agreed upon by the parties, but not
included in the lease. To carry out the terms
of this collateral agreement as to the improve
ments would not alter any provision of the
leases, but would simply effectuate the inten-
ton Of the parties at the time the contract was
entered into.
Besides, to deny recognition and validity Of
this eXtrinsic contract as to the ownership of
these improvements would be to deprive these
nj q ri ph yuq tn in +ho
proposals made by the City-to allow her to
repudiate an inducement which she held out
to obtain bids for the leases. 1t would be an
injustice to permit the municipality to violate
promise given at the time of the making of
the contract as an incentive to obtain high
rent for the property. Morally, the City is
plainly bound TO carry out the agreement as
10 these improvements; her legal duty so to
do is obvious.
Thanking you for your courtesy in this
matter, remain yours very truly,
RYLASD B. WALLACE.
Section lob, Civil Code of California
referred to by Mr.. v allace, reads as fol-
lows:
When a person affxes his property to the
land of another, without an agreement per
uniting him TO remove it, the thing affixed,
the owner OF the land, unless he chooses to re-
qnire the former to remove 1t.
And again in section 1913:
A tenant may remove from the demised
premises any time during the continuance of
his term, anything affixed thereto for purposes
of trade, manufacture, ornament or domestic
use if the removal can be effected without in
. Jury 10 the premises unless the thing has by
. the manner in which it is affixed, become an
integral part Of the premises.
H. NJ. Black. lessee of lots 10 and IL, is
greatly astonished at the attitude of the
: Board of Education. In an interview he
said yesterday:
"The leases were made on the strength
of a written document, issued by the
Board of Supervisors, calling for bids and
expressly stating that the improvements
should belong to the lessees at the expira-
ton OF the lease. The fact that this stipu-
lation did not enter into the lease cuts no
figure at all. The first instrument is bind
ing, and you may depend upon it, will be
held so by the courts. Why should the
City want to take our improvements on
technicaity? 1t is the best investment
from financial standpoint that the City
and County of San Francisco ever made,
or will ever make. My building cost me
$4,000. have made no money on the
transaction. My assessment is $1,000 and
the insurance costs me $50 per month. The
two buildings rent for $3.50 ner month"