POTRERO NUEVO LAND COMPANY (a Corporation), Appellant, v. ALL PERSONS CLAIMING ANY INTEREST IN OR LIEN UPON THE REAL PROPERTY HEREIN DESCRIBED, OR ANY PART THEREOF, Respondents, 158 Cal. 731

HENSHAW, J. Appellant brought its action under the McEnerney Act to establish its title to certain beach and water lots in the city and county of San Francisco. By the act of March 26, 1851, the legislature granted to the city of San Francisco the use and occupation of said land for the term of ninety-nine years from the date of the act.

Under the statute of May 18, 1853 (Stats. 1853, p. 219), commissioners were appointed who should sell, and did sell, the remaining interest of the state in these lots “after the expiration of the estate or term granted or mentioned in the act of 1851.” Plaintiff is the purchaser of the fee disposed of by the state in subordination to the ninety-nine-year term, tenancy, or estate, and will not be entitled to actual possession as contra-distinguished from any constructive possession, through the tenants of the ninety-nine-year term, until March 26, 1950.

The court sustained a general demurrer to the complaint and dismissed the action. Plaintiff appeals and there are presented for consideration two questions: 1. Whether under the facts stated plaintiff had a possession sufficient to satisfy the requirements of the McEnerney Act (Lofstad v. Murasky, 152 Cal. 64, [91 Pac. 1008]), and so to entitle it to prosecute this action; and, 2.

Whether the affidavit required to be filed with the complaint satisfies the act,, which exacts that such affidavit shall fully and explicitly set forth “the character of his (plaintiff’s)' estate, right, title, interest or claim in and possession of the property, during what period the same has existed and from whom obtained.” The McEnerney Act was emergency legislation, containing certain novel features.

It is not, of course, to be condemned for these reasons, but they are sufficient to demand of the court scrupulous care in considering the provisions when the provisions themselves are attacked, or request is made that construction should he given to them. For these reasons a rehearing was granted from the Department decision. 1.

A fundamental provision of the act is that it is available only to such person" as “by himself or his tenant or any other person holding under him is in the actual and peaceable possession of the land.” Can it be said that the relation of landlord and tenant, within the meaning of the McEnemey Act, exists between the owner of the reversionary fee and the owner of the ninety-nine-year term? In the very broadest acceptation of the meaning of the phrase “landlord and tenant” that relationship may be said to exist. But the question is whether it exists within the purview of the act.

Thus Smith in Landlord and Tenant, after mention of the fact that under the common law every one is a tenant, since there is no allodial property, proceeds as follows:— “I need not however tell you who must be all familiar with the use of those terms, that when we speak of landlord and tenant, even among lawyers, we use these words in a much narrower sense than that which I have just described.

For instance, when we use the words landlord and tenant we do not mean to express the species of relation which subsists between the sovereign and a subject, for instance, the Duke of Wellington, who holds his estates of her Majesty by the service of presenting yearly a b aimer in lieu of all other rents and services; nor do we, I think, ever intend to express the sort of relation that exists between the reversioner and the particular tenants under a settlement where no rent is reserved or any service rendered, although a tenancy doubtless exists between them.

For instance, if I convey lands to A in tail, keeping the reversion myself, there is no doubt that A becomes my tenant, though I reserve not a six pence of rent, nor ask for any covenant on his part to perform any of the ordinary duties of a tenant, and though he might destroy my interest the next day if so minded. But though as I have said, he is my tenant in strict law, this is not the sort of tenancy we mean when we use the words Landlord and Tenant. It is very difficult to express in terms the precise idea which we attribute to those words.

But I think I am not far wrong in saying that, when we speak of Landlord and Tenant we have the notion in our minds of a tenancy limited in point of duration within some bounds not so extensive as to render the Landlord’s interest practically worthless and accompanied by some remunerating incidents to the reversion, such as a rent, or at all events a fine in lieu of one and also by certain obligations such as covenants, or, where the tenancy is not evidenced by some instrument under seal, agreements for the performance of the duties usually required from persons taking the description of property demised; and as these are the sort of tenancies which give rise to the great mass of practical questions involved in the law of Landlord and Tenant, it is to these that I intend almost exclusively to direct my remarks.’.’ And, says Washburn (Real Property, 4th ed. 315) : “This relation of landlord and tenant does not embrace that between sovereign and subject, nor between the reversioner and him who enjoys the particular estate on which the reversion depends, where no rent is reserved, although a kind of tenancy subsists between them.” A consideration of the acts of the legislature in disposing of these beach and water lots and of the decisions of this court in relation thereto make plain, we think, the fact that the relation of landlord and tenant in its true sense, even as used “among lawyers” does not exist.

By the act of 1851 the state granted the use and occupation of these lands to the city and county of San Francisco for the term of ninety-nine years, with authorization to the city to sell and dispose of its holdings, requiring only that upon so doing, it should pay into the state treasury twenty-five per cent of the moneys received from such sales. Clearly in this there was no design of establishing between the state and the city the relation of landlord and tenant, and less design that that relation should exist between the state and any person to whom the city in turn might convey its interest.

The subsequent act of 1853 merely empowered commissioners to sell the state’s interest at public auction. And still less apparent is any intent or design to create such a relationship by substitution of the purchaser at the auction for the state of California. In Holladay v. Frisbie, 15 Cal. 635, a creditor of the city had attached the city’s interest in certain beach and water lots, and the question arose as to how the city’s title to the ninety-nine-year term was affected by the provision that it should pay one fourth of the proceeds of the property to the state.

It was declared that this provision created a mere contractual obligation upon the part of the city, and was not a condition to the grant, and that “the interest of the city in the beach and water lot property is a legal estate for ninety-nine years.” Such a decision is foreign to the conception that the relationship of landlord and tenant existed between the state and the city.

It is concluded, therefore, that the relation of landlord and tenant, within the meaning of the McEnerney Act, does not exist between the holder of the reversionary fee and the holder of the ninety-nine-year term in the beach and water lots of the city and county of San Francisco.

And as the McEnerney Act contemplates “actual possession” either by plaintiff, by his tenant, or by some person holding under him, and as plaintiff’s possession is based wholly upon that of his asserted tenant for years, since such tenancy does not exist, it necessarily follows that plaintiff does not come within the purview of the act and is not entitled, therefore, to maintain this action. 2.

The affidavit accompanying the complaint in this instance declared merely “that said title to said property was sold and conveyed by the state of California to one John Bensley in 1855, and by him through divers mesne conveyances conveyed to said plaintiff, who is now the owner and holder thereof and has been for the last ten years and more.” A requirement of a full and explicit showing of the period during which a plaintiff has enjoyed his estate, and a full and explicit showing of the person or persons “from whom obtained” is not met by the affidavit here presented.

To say that one has owned an estate for ten years and more is not fully and explicitly showing how long in fact he has owned and enjoyed it.

And a statement that one acquired title by “divers mesne conveyances” from one John Bensley, to whom the state conveyed the property in 1855, is not a full and explicit showing, description, or characterization of the person “from whom obtained.” The provision of the statute requiring a full and complete statement in these particulars is manifestly designed for the benefit of the defendants, in enabling them, by verifying plaintiff’s claim, to prevent fraud and safeguard their own rights. For these reasons a full and fair compliance with the provisions is a just exaction from every plaintiff.

For the foregoing reasons the judgment appealed from is affirmed. Lorigan, J., concurred.