Tiegs v. Watts

Smith, J. Petitioners Donald R. Watts and Boise Cascade Corporation seek review of a decision of the Court of Appeals, Division III, which affirmed a verdict and judgment in the Benton County Superior Court finding Petitioners liable for breach of a farm lease and for creating a nuisance by contaminating well water used for commercial farming. We granted review. We affirm. QUESTIONS PRESENTED The questions presented in this case are (1) whether the trial court properly instructed the jury that any discharge of contaminants or pollutants into Washington’s waters is a nuisance per se in violation of the Washington Water Pollution Control Act without a determination by the Department of Ecology that a violation has been committed; (2) whether the Court of Appeals erred in using a part performance theory to enforce an unacknowledged farm lease; and (3) whether Respondents may recover lost future profits for breach of a farm lease option. STATEMENT OF FACTS Petitioner Boise Cascade Corporation (Boise Cascade) — 5 — owns and operates the Wallula paper and pulp mill in Wallula, Walla Walla County. It holds a National Pollutant Discharge Elimination System Permit initially issued by the Washington State Department of Ecology in 1972.1 The permit, which has been periodically renewed, establishes the discharge limits of the mill into the Columbia River.2 The mill is located between the east shore of the Columbia River and Highways 12 and 395.3 It uses large volumes of water from the Columbia River in the papermaking and bleaching process.4 Wastewater is routed to a treatment facility adjacent to the mill where the solids are removed. The remaining wastewater is sent to an unlined pool in an artificial lagoon where aeration and bacterial action are used to reduce the papermaking chemicals and pollutants to permitted levels.5 The treated water is discharged downstream into the Columbia River.6 The Burlington Northern Railroad owned the property across the road from the Wallula mill on the west side of Highways 12 and 395. Petitioner Boise Cascade in 1967 leased that property from Burlington Northern for 20 years. Boise Cascade had considered using the leased property for alternative wastewater treatment projects, but did nothing to accomplish it.7 8The land remained unused for 20 years. Petitioner Donald R. Watts has been farming potatoes commercially in the Franklin County and Walla Walla areas since 1978.8 When the Burlington Northern/Boise Cascade lease expired in 1987, Petitioner Watts leased 650 — 6 — acres of the property from the Glacier Park Company, a successor to Burlington Northern.9 He developed two irrigation crop circles on the property. He drilled a well into the aquifer adjacent to the Columbia River to set up an irrigation system for the two crop circles.10 He planted crop Circle 1 in potatoes and leased the second circle to Respondent James Smith.11 Respondent Smith is a commercial potato farmer. He planted potatoes in Circle 2 and used water from the well. Petitioner and Respondent were satisfied with the potato crop yields from the circles in 1988.12 Potatoes were not grown in 1989 because they are only planted every other year.13 Petitioner Watts grew wheat and corn on the property in the crop year 1989.14 He bought the 650 acre property from the Glacier Park Company on December 18, 1989.15 In the fall of 1989, Petitioner Watts met and had a discussion with Respondents Fred and Allen Olberding and Frank Tiegs concerning their developing and leasing seven irrigation circles on the property for the 1990 potato crop year.16 Respondent Frank Tiegs has been a commercial potato farmer since 197717 and Respondents Fred and Allen Olberdings have been commercial potato farmers since 1982.18 Petitioner Watts developed irrigation Circles 3 through 9 and drilled four new wells on the property to supply water — 7 — to the new circles.19 The seven circles had never been farmed for potatoes and were considered “virgin” ground. Virgin ground always yields a higher than normal potato harvest because the ground does not have any established potato diseases or fungus. On November 28, 1989, Respondents Fred and Allen Olberding leased irrigation Circles 3 through 9 from Petitioner Watts under a “farm lease” contract for the crop year 1990.20 The contract had a clause providing that the lease was contingent upon Petitioner Watts finding and supplying adequate water flow at a rate of 7.5 gallons per minute to Circles 3 through 9. The contract also granted Respondents Fred and Allen Olberding an option to lease Circles 3 through 9 for the crop year 1992. Respondent Smith exercised his 1988 option to lease Circles 1 and 2 for the 1990 crop year.21 His farm lease did not contain a promise to deliver water. In April 1990, Respondents Fred and Allen Olberding and Frank Tiegs planted Russet Burbank potatoes on Circles 3 through 9 and Respondent Smith planted Russet Burbank potatoes on Circle 1 and Nortokah potatoes on Circle 2. In June 1990, Respondents noticed potato foliage abnormalities. They brought in several consultants who visited the fields on various occasions. The consultants observed that the potato foliage abnormalities occurred from circle to circle. They concluded plant growth regulating herbicides were involved. Respondents engaged the services of a plant pathologist, Dr. William T. Cobb, Ph.D.22 Dr. Cobb visited the fields several times and took water — 8 — samples.23 He concluded the plants exhibited typical symptoms of exposure to plant growth regulating herbicides.24 The analyzed water samples did not show traces of herbicides, but did show unusual levels of chlorides and total organic halides or TOX.25 TOX are indicators of chemical compounds that do not occur in nature.26 Dr. Cobb concluded the well water was contaminated, causing the potato foliage abnormalities.27 The potato crops were harvested in October 1990. Respondents had expected to harvest 42.5 tons of potatoes per acre, but harvested only 31 tons per acre.28 In late 1990 Petitioner Boise Cascade met with Respondents Fred and Allen Olberding and Frank Tiegs to discuss the 1990 crop damage and an estimate of anticipated crop damage for 1992.29 On November 26, 1990, Petitioner Boise Cascade purchased the property from Petitioner Donald R. Watts.30 Boise Cascade agreed to assume any liability Petitioner Watts might have under the farm leases on the property.31 On January 11, 1991, Respondents Fred and Allen Olberding and Frank Tiegs filed an action against Petitioners Donald R. Watts and Boise Cascade in the Benton County Superior Court. They claimed Petitioner Watts breached his contract by not providing an adequate well and water — 9 — system free of contaminants and pollutants.32 Respondent Frank Tiegs claimed the reduction in the potato crop yield, quality and tonnage was caused by the contaminated well water.33 Respondents Olberdings and Tiegs claimed Petitioners breached the contract by not allowing them to exercise their option to lease the property for the 1992 crop year.34 They claimed Petitioner Boise Cascade violated the Water Pollution Control Act, RCW 90.48, the Water Resources Act of 1971, RCW 90.54, and water quality standards for groundwaters.35 On August 16, 1991, Respondents Fred and Allen Olberding and Frank Tiegs sent a letter to Petitioner Boise Cascade advising that they wanted to exercise the November 28, 1988 contract option to lease Circles 3 through 9 for the crop year 1992 payable on or before January 20, 1992.36 Petitioner Boise Cascade had not expected them to exercise their option because Respondents earlier in January 1991 sued Boise Cascade for purportedly contaminating the irrigation water which they claimed had led to loss of their option.37 On September 18, 1991, Petitioner Boise Cascade sent a written notice to Respondents terminating the option.38 Respondents did not farm the property in 1992. On March 19, 1992, Respondent James Smith intervened in the case, contending that Petitioner Donald R. Watts had breached his contract by not providing an adequate well and water system free of contaminants and pollutants, — 10 — and that Petitioner Boise Cascade had violated water quality standards for groundwaters.39 The case was tried before a jury in February and March 1994 in the Benton County Superior Court. The trial court, the Honorable Fred R. Staples, instructed the jury on a nuisance per se theory over Petitioners’ objections. Instruction 12 quoted in its entirety the statutory definition of nuisance in RCW 7.48.120: Nuisance defined. Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property.[40] Instruction 16, quoting a portion of the Water Pollution Control Act, RCW 90.48.080, advised the jury a violation of the statute prohibiting discharge of polluting matters in water constitutes a nuisance: It shall be unlawful for any person to throw, drain, run, or otherwise discharge into any of the waters of this state, or to cause, permit or suffer to be thrown, run, drained, allowed to seep or otherwise discharged into such waters any organic or inorganic matter that shall cause or tend to cause pollution of such waters. The instruction, however, omitted the remaining words of the statute which read “according to the determination of the department, as provided for in this chapter.” Instruction 14 quoted in its entirety the statutory definition of “pollution” in RCW 90.48.020: Whenever the word “pollution” is used in this chapter, it — 11 — shall be construed to mean such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, including changes in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substances into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to the public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.[41] Instruction 13 quoted the relevant portion of RCW 90.48.010 which declared the policy of the Water Pollution Control Act: It is declared to be the public policy of the state of Washington to maintain the highest possible standards to insure the purity of all waters of the state consistent with public health and public enjoyment thereof, the propagation and protection of wild life, birds, game, fish and other aquatic life, and the industrial development of the state, and to that end require the use of all known available and reasonable methods by industries and others to prevent and control the pollution of the waters of the state of Washington. Consistent with this policy, the state of Washington will exercise its powers, as fully and as effectively as possible, to retain and secure high quality for all waters of the state.[42] After deliberation, the jury found Petitioner Boise Cascade liable for creating a nuisance and Petitioner Watts liable for breach of the lease by not providing an adequate amount of water. The jury awarded $878,069.00 to Respondent Tiegs and Respondents Olberdings and $563,467.00 to Respondent Smith. The jury also found Petitioner Boise Cascade hable for breach of the 1992 option and awarded Respondents Tiegs and Olberdings $1,147,258.00 in lost — 12 — profits.43 On April 13, 1994, Judge Staples entered judgment on the verdict.44 On May 11, 1994, Petitioners sought review of the Superior Court decision in the Court of Appeals, Division III. They contended that (1) the trial court did not properly instruct the jury on the law of nuisance and the Water Pollution Control Act, RCW 90.48, because Petitioner’s wastewater treatment system was constructed under a discharge permit which met requirements of the Department of Ecology and did not constitute a nuisance per se; (2) the trial court erred when it denied their motion for directed verdict on the action for damages from loss of the 1992 lease option because the lease was not acknowledged and thus was void under the statute of frauds; and (3) the trial court erred when it calculated lost future profits as damages for breach of the 1992 lease option. On September 5, 1996, the Court of Appeals, Acting Chief Judge John A. Schultheis writing,45 concluded that (1) discharges approved and authorized by the Department of Ecology do not constitute a nuisance per se, but the jury was properly instructed it could find a nuisance if Petitioner Boise Cascade leached pollutants into the groundwater in . violation of the Water Pollution Control Act, RCW 90.48; (2) the trial court properly submitted to the jury the claim for loss of the 1992 option inasmuch as Petitioners expected Respondents would renew the 1992 lease option because of the consideration paid by Respondents; (3) it is logical the parties would cancel the lease if the only available water was contaminated and because Petitioners had a duty to supply uncontaminated irrigation water; and (4) lost future profits are an appropriate measure of damages for breach of a farm lease if damages can be established with reasonable certainty. On October 22, 1996, Petitioners sought review by this — 13 — court of the decision of the Court of Appeals. We granted review on April 1, 1997. DISCUSSION Petitioner Boise Cascade contends the trial court gratuitously created a nuisance per se standard out of an amalgam of statutory provisions to inform the jury that any discharge of pollutants or contaminants into state waters is unlawful and constitutes an actionable nuisance, arguing that a reading of RCW 90.48.080 shows that not every discharge of contaminants is unlawful and such discharges may be allowed when they comply with requirements of the Washington Department of Ecology. Boise Cascade also argues it thus cannot be held liable for creating a nuisance because it holds a valid discharge permit and the Department of Ecology has not made a determination that leakage from its wastewater treatment facility is unlawful. A nuisance per se is an act, thing, omission, or use of property which of itself is a nuisance, and hence is not permissible or excusable under any circumstance.46 A lawful business is never a nuisance per se, but may become a nuisance by reason of circumstances.47 A person who conducts a business or a plant lawfully and in the best manner practicable with a sound operation may still commit a nuisance if the operation interferes unreasonably with other persons’ use and enjoyment of their property.48 An actionable nuisance must either injure the property or unreasonably interfere with enjoyment of the property.49 No one has a right to pursue even a lawful business if that — 14 — person injures a neighbor without compensating the neighbor for the damages sustained.50 Some nuisance actions in this state are specifically provided by statute.51 RCW 7.48.010 defines actionable nuisance for which damages and other relief are available. A common-law right of action to recover damages for wrongful water pollution is well established in Washington.52 The Water Pollution Control Act contains no express declaration against recognition of such rights of action. The language of the Act does not require or necessarily imply abolition of the common law right of action.53 It is clear from federal and state statutory schemes and Washington Department of Ecology regulations that discharge of contaminants or pollutants into state waters is prohibited unless authorized by a permit. A permit is required regardless of the water quality standard.54 When a permit has been granted, discharge of contaminants or pollutants must comply with its conditions.55 Discharges in violation of permit requirements constitute a nuisance which subjects violators to damages.56 A business operation does not at the outset constitute a nuisance when it is authorized by proper authority, but the operation may constitute a nuisance if it is conducted in a manner which unreasonably interferes with the use and enjoyment of — 15 — another’s property in violation of RCW 7.48.010 and .120.57 The fact a governmental authority tolerates a nuisance is not a defense if the nuisance injures adjoining property.58 Mere violation of permit requirements may not be the proximate cause of injuries, but the actual discharge of contaminants or pollutants may be the proximate cause of the damage to another’s property.59 The question whether a business created a nuisance and caused damage to crops on adjacent property is one for the jury.60 The jury has discretion to determine the extent of the nuisance and the compensation to the injured party for it.61 The Court of Appeals correctly determined the jury instructions given in this case were proper. Petitioner Boise Cascade contends the trial court erred when it denied its motion for directed verdict because the lease was not acknowledged and thus was void under the statute of frauds, allowing the jury to enforce the option contract based upon the instruction on estoppel. Boise Cascade also argues the Court of Appeals erred when it affirmed the option verdict based upon the theory of part performance. We have recognized as enforceable leases ones that do not fully comply with statutory requisites when under the facts it would be inequitable for the challenging parties to assert invalidity of their own agreements.62 An instrument may be taken out of operation of the statute of frauds — 16 — by a form of equitable estoppel based upon the notion it would be inequitable for the challenging party to assert invalidity of the instrument to which that party agreed.63 An unacknowledged lease, which is to some extent a parol contract concerning real estate, must be proven by clear and convincing evidence.64 A lease prepared by the lessor should be interpreted in favor of the lessee.65 Leases have been sustained where the lessee had performed acts called for in the lease in reliance upon it, giving rise to estoppel or part performance.66 The facts must show the parties acted upon the instrument as a lease.67 Petitioners contend the lease in this case was not acknowledged. A lease need not necessarily be acknowledged if the lessee pays the rent and takes possession.68 RCW 59.04.010 provides that “[Leases may be in writing or print, or partly in writing and partly in print, and shall be legal and valid for any term or period not exceeding one year, without acknowledgment, witnesses or seals.” Petitioner Watts testified he recognized the farm lease and his signature.69 He did not deny either. The parties entered into the farm lease with the intent Respondents would use the land for the 1990 crop year with the option — 17 — to lease for the 1992 crop year. Respondents took possession of the land, prepared it and planted and maintained the potato crop. Petitioner Watts visited the property checking and maintaining the water pumps.70 The parties conducted their business according to the terms of the lease. The Court of Appeals correctly determined the farm lease was valid and enforceable. Petitioner Boise Cascade contends the Court of Appeals erred in affirming lost future profits as the appropriate measure of damages for breach of the lease option for the 1992 crop year. It argues the Court of Appeals should not make new law by affirming lost profit damages for a crop Respondents never planted. Petitioner argues that since no Washington case has considered the question whether lost profits could be recovered for crops not planted, the court should follow the 1901 case of Engstrom v. Merriam71 in which the measure of damages was determined to be the rental value of the land and not the value of the hoped for crop. The modern view is that lost profits are properly recoverable as damages when (1) they are within the contemplation of the parties at the time the contract was entered, (2) they are the proximate result of defendant’s breach, and (3) they are proven with reasonable certainty.72 At least since 1919, this court has articulated the rules on lost profits as a measure of damages: The first rule poses no problem, for it was clearly foreseeable that if the contract was breached there would be lost profits on national sales. Most contracts are motivated by the expectation of future profits. If such profits are within the con — 18 — templation of the parties at the time the contract is made, they may form the measure of damage.[73] The second rule requires certainty as to the fact that damage resulted from defendant's breach.[74] The third rule requires that lost profits must be proven with reasonable certainty or conversely, damages which are remote and speculative cannot be recovered.75 The amount of lost profits must be established with reasonable certainty.76 Lost profits cannot be recovered where they are speculative, uncertain and conjectural.77 Lost profits will not be denied where factual data is presented as a basis for computing probable losses.78 The usual method for proving lost profits is to establish profit history.79 Respondents Tiegs and Olberdings are experienced commercial potato farmers. Their testimony and exhibits provided a reasonably certain basis upon which the jury could use lost future profits as the measure of damages. SUMMARY AND CONCLUSIONS One who operates under a discharge contaminant or pollutant permit issued by the Washington Department of Ecology is not necessarily absolved of liability for damages — 19 — under a nuisance per se theory if the discharge injures another’s property. The question whether an authorized discharge of contaminants or pollutants caused damage to crops on adjacent land is one for the jury. The challenging party may not assert invalidity of an unacknowledged farm lease when there are facts showing both parties had performed acts called for in the lease in the belief it was valid. Indeed, under RCW 59.04.010 acknowledgment is not required for a lease which may be performed within one year. Lost future profits are an appropriate measure of damages for breach of a farm lease when the amounts can be established with reasonable certainty. We affirm the decision of the Court of Appeals, Division III, which affirmed a verdict and judgment against Petitioners finding them liable for breach of a farm lease and for creating a nuisance by polluting or contaminating well water used for commercial farming on an adjacent property. Dolliver, Guy, and Johnson, JJ., concur. Footnotes [1] Trial Transcript at p. 18-19 (Mar. 3,1994). [2] Trial Transcript at 18 (Mar. 3, 1994); Trial Transcript at 12 (Mar. 4, 1994). [3] See Map, Clerk’s Papers at 1088. [4] Trial Transcript at 9-10 (Mar. 3, 1994). [5] Trial Transcript at 128 (Mar. 3, 1994). [6] Trial Transcript at 9-10, 122 (Mar. 3, 1994); Trial Transcript at 8-9, Ex. 344 (Mar. 4, 1994). [7] Trial Transcript at 155-157 (Mar. 3, 1994). [8] Trial Transcript at 7 (Feb. 3, 1994). [9] Trial Transcript at 153-154 (Mar. 3, 1994). [10] Trial Transcript at 17-18 (Feb. 4, 1994); Trial Transcript at 81-82 (Feb. 3, 1994). [11] Trial Transcript at 46 (Feb. 3, 1994); Ex. 23, Mar. 3, 1988 Farm Lease between Donald R. Watts and James Smith. [12] Trial Transcript at 58-59 (Feb. 4, 1994); Trial Transcript at 71-83 (Feb. 23, 1994). [13] Trial Transcript at 37 (Feb. 23, 1994). [14] Trial Transcript at 47-48 (Feb. 3,1994). [15] Contract for Deed, Ex. 2. [16] Trial Transcript at 65 (Feb. 3, 1994). [17] Trial Transcript at 123-25 (Mar. 9, 1994). [18] Trial Transcript at 17-18 (Feb. 8, 1994); Trial Transcript at 78 (Feb. 14, 1994). [19] Trial Transcript at 81-82 (Feb. 3, 1994); Trial Transcript at 158-163 (Mar. 9, 1994). [20] Farm Lease, App. C, Pet. for Review. [21] Ex. 23, Farm Lease between Donald R. Watts and James Smith (Mar. 3, 1994). [22] Trial Transcript at 44 (Feb. 15, 1994). [23] Trial Transcript at 47-48 (Feb. 15, 1994); Trial Transcript at 81-84 (Feb. 16, 1994). [24] Trial Transcript at 71-73 (Feb. 16, 1994). [25] Trial Transcript at 128 (Feb. 16, 1994). [26] Trial Transcript at 157-58 (Feb. 15, 1994). [27] Trial Transcript at 170-73 (Feb. 16, 1994). [28] Trial Transcript at 32 (Feb. 18,1994). [29] Trial Transcript at 75-76 (Feb. 22, 1994). [30] Trial Transcript at 154, 181 (Mar. 3, 1994). [31] Ex. 2 at 10 and Ex. 16. [32] Clerk’s Papers at 1108. [33] Clerk’s Papers at 1109. [34] Clerk’s Papers at 1110. [35] Clerk’s Papers at 1110-12. [36] Ex. 176. [37] Court of Appeals, Division III Br. of Appellants Donald E. Watts, d/b/a Don Watts Farms; and Boise Cascade Corporation at 11. [38] Ex. 177. [39] Clerk’s Papers at 1096-101. [40] Instructions of the Court, Clerk’s Papers at 116. [41] Jury Instructions, Clerk’s Papers at 118. [42] Jury Instructions, Clerk’s Papers at 117. [43] Special Verdict Form, Clerk’s Papers at 99-101. [44] Judgment on the Verdict, Clerk’s Papers at 94-98. [45] Tiegs v. Boise Cascade Corp., 83 Wn. App. 411, 922 P.2d 115 (1996). [46] Hardin v. Olympic Portland Cement Co., 89 Wash. 320, 154 P. 450 (1916); State ex rel. Bradford v. Stubblefield, 36 Wn.2d 664, 220 P.2d 305, 17 A.L.R.2d 1258 (1950); Jones v. Rumford, 64 Wn.2d 559, 392 P.2d 808 (1964). [47] Id.; Grant v. Rosenburg, 112 Wash. 361, 192 P. 889, 196 P. 626 (1920); see State ex rel. Bradford v. Stubblefield, 36 Wn.2d 664, 220 P.2d 305 (1950). [48] Jones v. Rumford, 64 Wn.2d 559, 392 P.2d 808 (1964). [49] Crawford v. Central Steam Laundry, 78 Wash. 355, 139 P. 56 (1914). [50] Mathewson v. Primeau, 64 Wn.2d 929, 395 P.2d 183 (1964); Powell v. Superior Portland Cement, Inc., 15 Wn.2d 14, 129 P.2d 536 (1942); Bartel v. Ridgefield Lumber Co., 131 Wash. 183, 229 P. 306, 37 A.L.R. 683 (1924); Jones v. Rumford, 64 Wn.2d 559, 392 P.2d 808 (1964); Hardin v. Olympic Portland Cement Co., 89 Wash. 320, 154 P. 450 (1916). [51] RCW 7.48. [52] Ellison v. Rayonier, Inc., 156 F. Supp. 214 (W.D. Wash. 1957); Bales v. City of Tacoma, 172 Wash. 494, 20 P.2d 860 (1933); Bowman v. Helser, 143 Wash. 397, 255 P. 146 (1927); Sund v. Keating, 43 Wn.2d 36, 259 P.2d 1113 (1953). [53] Id.; see Miotke v. City of Spokane, 101 Wn.2d 307, 330, 678 P.2d 803 (1984). [54] Id. [55] Id. [56] Id. [57] Bruskland v. Oak Theater, Inc., 42 Wn.2d 346, 254 P.2d 1035 (1953). [58] Ingersoll v. Rousseau, 35 Wash. 92, 76 P. 513 (1904). Actually, counsel for Boise Cascade in oral argument conceded it was not relying upon the “permit shield” defense. [59] Bruskland, 42 Wn.2d at 346. [60] Weller v. Snoqualmie Falls Lumber Co., 155 Wash. 526, 285 P. 446 (1930), overruled on other grounds by Bradley v. American Smelting & Ref. Co., 104 Wn.2d 677, 709 P.2d 782 (1985). [61] Riblet v. Spokane-Portland Cement Co., 45 Wn.2d 346, 274 P.2d 574 (1954). [62] 1 Washington State Bar Ass’n, Real Property Deskbook § 9.21, at 9-23 (2d ed. 1986). [63] Id. [64] Golden v. Mount, 32 Wn.2d 653, 203 P.2d 667 (1949). [65] BId.; see Washington Hydroculture, Inc. v. Payne, 96 Wn.2d 322, 635 P.2d 138 (1981). [66] Zinn u. Knopes, 111 Wash. 606, 191 P. 822 (1920) (lessor is estopped from canceling lease when lessee acted on faith of lessor and did acts called for by the lease); see 1 Washington State Bar Ass’n, Real Property Deskbook § 9.21, at 9-23 (2d ed. 1986) (citing Franklin v. Fischer, 34 Wn.2d 342, 208 P.2d 902 (1949)); Mobley v. Harkins, 14 Wn.2d 276, 128 P.2d 289, 143 A.L.R. 88 (1942) (acts giving rise to estoppel or part performance would not have been done but for the lease). [67] Browder v. Phinney, 37 Wash. 70, 79 P. 598 (1905) (Flaintiffs must prove they took possession in order to establish part performance); see Omak Realty Inv. Co. v. Dewey, 129 Wash. 385, 225 P 236 (1924) (a lease is enforced if the lessee possessed the premises and paid rent). [68] Central Bldg. Co. v. Keystone Shares Corp., 185 Wash. 645, 56 P.2d 697 (1936); Jones v. McQuesten, 172 Wash. 480, 20 P.2d 838 (1933); Garbrick v. Franz, 13 Wn.2d 427, 125 P.2d 295 (1942). [69] Trial Transcript at 64-65 (Feb. 3, 1994). [70] Trial Transcript at 110-11 (Feb. 3, 1994). [71] 25 Wash. 73, 64 P. 914 (1901). [72] Larsen v. Walton Plywood Co., 65 Wn.2d 1, 390 P.2d 677 (1964); see Farm Crop Energy, Inc. v. Old Nat’l Bank, 109 Wn.2d 923, 750 P.2d 231 (1988). [73] Id.; see Federal Iron & Brass Bed Co. v. Hock, 42 Wash. 668, 85 P. 418 (1906). [74] Id.; see Dunseath v. Hallauer, 41 Wn.2d 895, 253 P.2d 408 (1953); Gaasland Co. v. Hyak Lumber & Millwork, Inc., 42 Wn.2d 705, 257 P.2d 784 (1953). [75] Id.; see Bromley v. Heffernan Engine Works, 108 Wash. 31, 182 P. 929 (1919); National Sch. Studios, Inc. v. Superior Sch. Photo Serv., Inc., 40 Wn.2d 263, 242 P.2d 756 (1952). [76] Id.; see B&B Farms v. Matlock’s Fruit Farms, Inc., 73 Wn.2d 146, 437 P.2d 178 (1968); Reefer Queen Co. v. Marine Constr. & Design Co., 73 Wn.2d 774, 440 P.2d 448 (1968); Lundgren v. Whitney’s Inc., 94 Wn.2d 91, 614 P.2d 1272 (1980); Farm Crop Energy, Inc. v. Old Nat’l Bank, 109 Wn.2d 923, 750 P.2d 231 (1988); Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wn.2d 712, 845 P.2d 987 (1993). [77] Layman v. Swanson, 3 Wn.2d 370, 101 P.2d 304 (1940). [78] Goldengate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wn.2d 469, 403 P.2d 351 (1965). [79] Larsen, 65 Wn.2d at 16.