Lewiston Water & Power Co. v. Brown

Fullerton, J. — The respondent, being the owner of a tract of land in Asotin county, in this state, platted the same into lots and blocks as a townsite, under the name of the Town of Lewiston; the name being afterwards changed by legislative enactment to Olarkston. These lots it put upon the market for sale; giving to the purchasers warranty deeds subject to a proviso in the following or similar language: “Provided, however, that in case the premises hereby conveyed should be used in any way for the purposes of any bar-room, saloon or brewery, that this instrument shall be [556] come void and the title to said premises and water right shall at once revert to, and revest in,, said grantor, or its assigns; this provision in no way relating to the manufacture of pure wine, syrups, etc., from the juices of the fruit.” On October 30, 1897, the respondent conveyed, by deed containing the foregoing proviso, one of such lots to Frank Maruska, from whom it passed by regular mesne conveyances to the appellant E. S. Brown. Brown leased the same to the appellants Beed and Wilson, who fitted up a saloon thereon, and engaged in the sale of intoxicating liquors. This action was thereupon brought by the respondent, who prayed for a judgment and decree declaring the appellant’s title forfeited, ■ that it have restitution of the premises, and that its title to the same be quieted. A general demurrer was interposed to the complaint, and overruled; whereupon the appellants answered, setting up affirmative matter thought to estop the respondent from claiming a forfeiture. After a trial, which was had before the court without a jury, judgment was entered for the respondent in accordance with the prayer of its complaint, and this appeal was taken therefrom. The appellants first contend that the respondent cannot maintain this action for the reason that it neither alleged nor proved that it entered upon the lot or made a demand for possession prior to its commencement. A number of cases are cited which sustain the contention, and such undoubtedly was the rule at common law. But we think the rule has been done away with in this state by statute. By section 5500 of the Code (Ballinger’s), it is provided that any person having a valid subsisting interest in real property, and a right to' the possession thereof, may recover the same by action in the superior court of the proper county, against the tenant in possession, or if there be no' tenant in possession, then against the person claiming the title or claiming an interest therein. Neither demand or reentry is made a condition .precedent to the right toi maintain the action, and since this section was intended to supersede the common law [557] remedies for the recovery of real property, it must he held to contain in itself all of the limitations on the right to maintain such an action. That this is the correct rule under the statute is abundantly sustained by authority. Thus, in Austin v. Cambridgeport Parish, 21 Pick. 215, it was said: “To entitle the devisee to maintain this action, it would, by the principles of thei common law, have been necessary for her to have made an actual entry before instituting her suit, but by the provisions of the Revised Statutes great and important changes have been introduced into our system in relation toi real actions^ both in the form of the pleading and in the proof necessary to sustain such an action. The demandant is no longer required to prove an actual entry under his title in those cases where such entry was necessary at common law, hut if he shows that he is entitled to- such an estate as he claims in the premises, whether as heir at law, devisee, or otherwise, and that he has a right of entry therein, this is sufficient proof of his seisin. Revised Stat. c. 101, Sec. 4, 8.” So, in Cowell v. Springs Co., 100 U. S. 55, 25 L. Ed. 547, a case where this precise question was involved, it was said: “We have no doubt that the, condition in the deed to> the defendant here is valid and not repugnant to- the estate conveyed. It is a condition subsequent, and upon its breach the company had a right to treat the: estate as having reverted to it, and bring ejectment for the premises. A previous entry upon the premises, or a demand for their possession, was not necessary. By statute in Colorado it is sufficient for the plaintiff in ejectment to show a right to the possession of the demanded premises at the commencement of the action as heir, devisee, purchaser, or otherwise. The commencement of the action there stands in lieu of entry and demand of possession.” And in Cornelius v. Ivins, 26 N. J. L. 376, it was said: “As a general rule, it is not necessary to make an actual entry upon land in order to maintain the action of ejectment. The right to enter, not an actual entry, is requisite to sustain the action;” and that “as an actual entry on the [558] land is but a formal and unmeaning ceremony devoid of any practical meaning and unattended by any real advantage, there can be no utility in enforcing it, however strong the technical reasons in its support.” See, also, Ruch v. Rock Island, 97 U. S. 693, 24 L. Ed. 1101; Atlantic etc. R. Co. v. Mingus, 165 U. S. 413, 17 Sup. Ct. 348, 41 L. Ed. 770; Ellis v. Kyger, 90 Mo. 600, 3 S. W. 23; Kirk v. Mattier, 140 Mo. 23, 41 S. W. 252; Sioux City etc. R. Co. v. Singer, 49 Minn. 301, 51 N. W. 905, 32 Am. St. 554, 15 L. R. A. 751; Plumb v. Tubbs, 41 N. Y. 442. The claim of estoppel is based on a statement made by the president of the respondent corporation. It appears that after the population of the town of Clarkston had reached a considerable number, the people began agitating the question of incorporation. The president of the respondent was in favor of that policy, and gave to’ one of the local papers a statement in the form of an interview in which he undertook to set forth the advantages that would accrue to them by an incorporation over their present condition. Among the statements made was the following: “And how will the expense of police and fire protection be met? That answers itself. Eirst, the city would have all the road taxes of some $1500 per year. A wise city government would require any party enjoying special privileges to pay a reasonable license for the same. These would include a dog license of, say $2 or $4 per year; a business license of $5 to $10 each per year, as in Lewiston, for example. And further, when the town is incorporated we propose to let the people 'themselves decide the saloon question. If the people shall vote to- keep in Clarkston the money now spent for beer and other drinks in Lewiston and to have the drink money spent under local supervision and control, then the Lewiston Water & Power Company will not attempt to further control these matters. We prefer to have the people decide and control all local government and themselves, as is their undoubted right. In ease they do permit one or two saloons under proper restrictions then the license money of say $500 for a saloon would greatly help to pay expenses.” [559] It is this statement that is claimed to have estop-ped the corporation from insisting upon a forfeiture for a breach of the condition contained in the appellant’s title deeds. But without attempting to follow in detail the argument of the appellants, we are clearly of the opinion that no estoppel can be predicated upon this statement. While conditions subsequent contained in deeds may be waived by parol, such waiver must be made by the grantor or his successor in interest. Where the grantor is a corporation, as it is in this case, controlled and managed by a board of directors, informal statements published in the papers by its president cannot be held to govern its policy, or waive solemn-reservations in its deeds of conveyance. “The president of a private corporation is, as the term implies, the presiding officer of its board of directors and of its shareholders when convened in general meeting. The office itself, however, confers no- power to- bind the corporation or control its property. The president’s power as an agent must be sought in the organic law of the corporation, in a delegation of authority from it, directly or through its board of directors, formally expressed or implied from a habit or custom of doing business.” 10 Cyc. 903. It is further assigned that the court committed error in the admission of evidence, and in refusing to make certain findings of fact. Inasmuch, however, as the action was tried by the court without a jury the admission of improper evidence could not he prejudicial. Ho-r was there error in refusing to make the findings requested. In so far as thc-y were supported by the evidence, they were immaterial, and on the main questions we are clear that the weight of the evidence is with the findings made. Ho substantial error appearing in the record, the judgment appealed from will stand affirmed. Mount, C. J., Hadlee, Dunbar, Boot, and Grow, JJ., concur.