Reports of Cases Decided in the Supreme Court of the State of Oregon (Volume 81)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1917. Excerpt: ... The defendant testified that after making the agreement with the corporation he learned an injunction had been issued, whereupon he notified the agent of the Walker Warehouse Company of what he had been informed, and thereupon obtained from the agent of Mr. Kronenberg permission to tie his log raft to the east wharf; that the witness never took possession of any property under the terms of the written lease, and that he had never been evicted by Basmussen. 4-8. Notwithstanding the sworn statements of this witness, which declarations seem to voice his opinion of the law governing his rights, the physical fact remains that for eight months he occupied the demised premises. By accepting the written agreement he is estopped from controverting his landlord's title while he retained possession of the wharfage rights which he secured by the lease: Section 798, subd. 5, L. 0. L.; Jones v. Dove, 7 Or. 467; Rouse v. Riverton Coal Co., 71 Or. 154 (142 Pac. 343). The estoppel ceases, however, when the tenant surrenders to the landlord possession of the demised premises: Bertram v. Cook, 44 Mich. 396 (6 N. W. 868). Such relinquishment must be complete, open and made in good faith, nothing short of which will suffice: Eagar v. Wikoff, 2 Okl. 580 (39 Pac. 281); Shy v. Brockhause, 7 Okl. 35 (54 Pac. 306). The west wharf leased by the corporation in this instance rested upon piles driven into the mudflats, and hence the structure was a part of the realty which could be held in subordination to some superior. If, therefore, the defendant took possession under the terms of the agreement of any part of the west wharf, the relation of landlord and tenant was created between the parties: Beck v. Grain Co., 131 Iowa, 62, 64 (107 N. W. 1032, 1033, 7 L. E. A. (N. S.) 930). In dec...