Northern Pacific Railway Co. v. Bismarck Commission Co.

171 N.W. 623, 41 N.D. 490, 1919 N.D. LEXIS 95

• Court: North Dakota Supreme Court
• Decided: February 3, 1919
• Status: Published

Opinions

Robinson, J.

The plaintiff brings this action to recover possession of a part of its right of way. In justice court and district court the •decision was given for the plaintiff, and defendant appeals. To the writer it is entirely manifest that the several appeals were not taken in good faith, and that the appeals were only for the purpose of delay.

On May 3, 1907, the plaintiff made to defendant an indefinite term lease or license, by which, in consideration of $25 a year-, it leased to the defendant a part of its right of way in the city of Bismarck for the purpose of doing a general produce, commission, and storage business. In the lease it was expressly agreed “the railway company may terminate the lease at any time, upon written notice of not less than thirty days, with or without assigning any reason therefor; and the lessee may terminate the lease by giving thirty days’ notice in writing to the land commissioner of the railway company, at his office in St. Paul, Minnesota.” Accordingly on May 25, 1917, there was personally served on defendant a written notice to terminate the lease in thirty days and a request for defendant within that time to remove from the premises. So the lease expired on June 25, 1917. Then on July 18, 1917, at Bismarck, there was served on defendant a statutory notice to quit the premises, and on July 24, 1917, the action was commenced in justice court.

Contrary to the express terms of the lease defendant insisted that it was a lease from year to year, and that it could be terminated only at the end of each yearly period. Defendant also insisted that under the lease he had paid $25 as rental for the year ending January 31, 1918, and that by reason of accepting the rent plaintiff could not return the same for the unexpired portion of the year and terminate the lease before the end of the year. The lease or license was fairly made for a nominal consideration, and under it defendant had held possession for several years. Manifestly it was competent for the parties to contract for the termination of the lease by a written notice of thirty days, and by such notice the lease was duly terminated June 25, 1917. Obviously tbe defense bas not the least merit. The judgment is affirmed, with costs, and the case is forthwith remanded.

Affirmed and remanded.

Geace, J. I concur in the result.