The plaintiffs brought this action to recover the value of improvements, consisting of a bulkhead and fill placed upon certain tidelands near Ballard in 1925, and for the rent and taxes paid on the property, which was held under a lieu lease, the term of which began in 1902 and ended in 1932. The plaintiffs applied for a re-lease of the premises, but the application has not as yet been granted. In 1929, the legislature granted certain tidelands, including those here in question, to the city of Seattle to be used for public parks, boulevards, ferry landings, and temporary waiting basin for vessels and for no other purposes. No deed has as yet been issued to the city of Seattle. The trial court dismissed the action and denied the plaintiffs' motion for a new trial. The plaintiffs appeal.
The majority opinion holds that the appellants have a *Page 147 vested right in the improvements placed upon the leased land and that they may recover the value thereof. If a tenant is to have a vested right in the improvements placed upon land, such that he may recover the value thereof from the owner after the expiration of the lease, it must be by reason of some provision in the lease that created that right. No such provision is contained in the lease in question, nor is any such provision found in state law. There are certain "preference rights" covered by the state law and provided for in the lease, but these are limited and come into existence only upon the happening of certain specified contingencies. The lessee has a preference right to re-lease the premises as against a third-party lessee. If a third party purchases or leases the property within the required time, provision is made for the appraisal of non-removable improvements for which the original lessee will be compensated. The lessee has no right under the provision of his lease or any state law to compel a renewal of the lease or to re-lease the premises.
The majority opinion holds that the contingencies upon which an appraisal of the value of the improvements is to be made, have not happened. With that I agree. The value of this right in proper cases is to be determined by that particular method of appraisement which is provided for by law. The majority opinion holds that appellant cannot require such an appraisement, because the contingencies have not arisen upon which it must be based. It therefore follows that he has no vested right in the improvements under the circumstances, in which case he cannot recover their value.
There is no basis for inferring that there was any intention of the legislature of making the state liable for the value of the improvements in any event. Holding otherwise subjects the state to an unwarranted burden. Lessees could put impractical improvements upon state-owned land at exorbitant costs and then put the state to the election of either re-leasing the property or paying for their cost. The extent of improvements on state-owned land are possibly *Page 148 not known definitely, but it seems clear to me that there is no direct obligation on the state to pay for them. Certainly no provision of law will support it.
The pleadings will not permit this action to be treated as if it were a condemnation case. To do so would violate all the constitutional procedure governing the exercise of the right of eminent domain. Nor can the case be treated as being one for damages. The state has committed no tortious act. On the contrary, it has acted well within its authority.
The majority opinion holds, in effect, that a tenant may recover the value of improvements, left on premises after the expiration of a lease, from the owner. This is not the law. The judgment should be affirmed.