Harvey Construction Co. v. Parmele

113 N.W.2d 760, 253 Iowa 731, 1962 Iowa Sup. LEXIS 626
CourtSupreme Court of Iowa
DecidedMarch 6, 1962
Docket50472
StatusPublished
Cited by12 cases

This text of 113 N.W.2d 760 (Harvey Construction Co. v. Parmele) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harvey Construction Co. v. Parmele, 113 N.W.2d 760, 253 Iowa 731, 1962 Iowa Sup. LEXIS 626 (iowa 1962).

Opinion

Thompson, J.

At all times material Eldon E. Freund and Richard J. Freund, who will be hereinafter referred to as the plaintiffs, have been the holders of the legal title to certain lands in Scott County comprising a tract of 174 acres. On March 26, 1947, they entered into a written agreement with the defendant, Robert E. Parmele, by the terms of which they leased to him a described part of said lands totaling 27.51 acres for airport purposes. Parmele entered into possession and has constructed an airport, with runways, hangar and perhaps other appurtenant structures and improvements. In 1959 the plaintiffs entered into an option agreement with Harvey Construction Company for the sale by them to Harvey of all the lands owned by them, excepting two homestead properties located thereon. Harvey Construction Company also appears as a plaintiff in this action. In 1956 the entire tract was annexed to the City of Bettendorf and now lies within the city limits. This includes the part leased to the defendant. On August 18, 1959, the City of Bettendorf enacted a zoning ordinance which placed all of this property in a “B” Single Family Residential district. The defendant’s use of the part occupied by him is a nonconforming use.

The controversy here does not involve the actual leasing provisions of the contract of 1947, but revolves around a certain option clause. The lease provides, in addition to a stipulated yearly rental, that it expired on December 31, 1956; but also that, upon lessee giving a prescribed notice, it might be extended for successive ten-year periods through December 31, 1996. The validity of these provisions is not in dispute. However, a part of Paragraph 1 of the lease is an option agreement for the taking of further lands of the plaintiffs by the lessee, in these terms:

“Lessors agree to lease to the Lessee any additional real property belonging, to the Lessors adjacent and contiguous to the real property herein leased upon the same terms and condi *735 tions as herein stated and for the consideration as set forth in Paragraph 2 of this Indenture, as the Lessee shall demand from time to time throughout the term of this Lease or any successive term. Lessee shall make such demand upon the Lessors on or before December 31, of any year for the additional real property desired by the Lessee and possession shall be given to the premises on January 1, succeeding the giving of notice by the Lessee for such additional real property, and the obligation for the payment of rent for such additional property shall commence on January 1, when possession is given by the Lessors.”

It is this part of the contract which occasions the litigation now before us.

It is plaintiffs’ contention in their declaratory-judgment action that this clause is so vague, indefinite and uncertain as to be a nullity. As we understand plaintiffs’ position, it is that there is no clear and unambiguous meaning that can be given to the words “adjacent and contiguous” so that it can be determined what part of the tract not covered by express terms in the lease is subject to being taken by the lessee upon demand; and that there is no definite or certain rental provided. The trial court found that a certain part of the plaintiffs’ remaining lands lying south of a highway known as “Middle Road” and containing about 20 acres was not within the meaning of the words “adjacent and contiguous” and so not subject to being leased on demand by the defendant. It also held that two homesteads, consisting of houses with appurtenant buildings, occupied by the plaintiffs and lying north of the roadway, were not within the meaning of the option clause; but that all of the remaining lands of the plaintiffs north of the roadway were “adjacent and contiguous” to that part specifically leased and so subject to being taken by the defendant upon demand as stated in the clause above quoted, at any time until December 31, 1996, if the lease should be renewed for successive ten-year periods to that date. The trial court also held that plaintiffs might sell and convey all of their lands, but subject to the rights of the defendant as above stated. The defendant has not appealed from those parts of the decree adverse to him.

The case was tried on a stipulation of facts, from which we learn that prior to January 1, 1948, the defendant demanded and *736 received an additional tract of 2.29 acres, and prior to January 1, 1949, another parcel of 2,30 acres. Prior to January 1, 1950, he released a part of the additional land. Prior to January I, 1954, he demanded and received an additional .77 of an acre; and prior to January 1, 1957, an additional 5.54 acres; so that at the time of the trial he was occupying a total of 33.82 acres. He has paid the stipulated rent of $1500 for the original tract specifically leased, this figuring out at the rate of $54.53 per acre. For the added acres he has paid at the rate of $50 per acre, which has been accepted by the plaintiffs without objection. The trial court’s decree requires him to pay $54.53 per acre for any additional lands taken.

The stipulation also shows that prior to the execution of the lease plaintiff Eldon E. Freund had a structure, whether a home or not does not appear, located on a portion of the tract not specifically leased to defendant, but lying north of Middle Road, which he replaced in 1949 with a homestead, including a house, garage and other outbuildings; and that in 1950 Richard J. Freund replaced and added to a set of buildings, also located north of Middle Road but not specifically leased, with a house, garage and other outbuildings. No objection was made by the defendant to these buildings, and they have at all times since been occupied by the Freunds as their homesteads.

I. We find no merit in the contention of the plaintiffs that the rental stipulated to be paid for additional lands demanded and taken by the defendant is so vague and uncertain as to be incapable of ascertainment and so the contract must be condemned for indefiniteness. It requires only mathematical computation to learn that the rental per year per acre for the specifically described tract of 27.51 acres at a total of $1500 per year is $54.53. The option clause which forms the basis for dispute says that additional property taken shall be “upon the same terms and conditions as herein stated;” and the terms are stated in the lease as $1500 per year for the described 27.51 acres. It has been held that an agreement for an extension of a lease is sufficiently definite even though the rental is to be agreed upon. I Corbin, Contracts, section 266, page 890; Mutual Paper Co. v. Hoague-Sprague Corporation, 297 Mass. 294, 8 N.E.2d 802, 806, 807; Hall v. Weatherford, 32 Ariz. 370, 259 P. 282, 285, 56 *737 A. L. R. 903; Young v. Nelson, 121 Wash. 285, 209 P. 515, 516, 517, 30 A. L. R. 568. We find no difficulty here in determining with reasonable certainty the amount of rental to be paid in case of an extension of the lease. It must be according to the terms of the original lease. This was for $1500 for 27.51 acres, or, as the trial court found, at $54.53 per acre.

II. The more difficult proposition concerns the certainty of what lands of the lessors were included in the term “adjacent and contiguous”.

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Bluebook (online)
113 N.W.2d 760, 253 Iowa 731, 1962 Iowa Sup. LEXIS 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harvey-construction-co-v-parmele-iowa-1962.