(specially concurring). Although I concur in the conclusion that the judgment of the trial court should be affirmed, I am nevertheless compelled to disagree with the language used in the majority opinion.
I think it wholly improper for this court to find that this appeal was not taken in good faith, and was made only for the purpose of delay. The record presents a square issue, fairly presented, concerning the interpretation to be placed on a stipulation in the lease; reflection should not so be cast upon the attorney for the appellant, an officer of this court in good standing, unless the record shows a palpable abuse of the right of appeal.
On May 3, 1907, the plaintiff made to the defendant a lease whereby it demised to the defendant certain premises on its right of way in the city of Bismarck; the lease provided for an annual rental of $25 payable in advance, together with payment of taxes and assessments levied against the premises during the term. The lease used the terms “lessor” and “lessee;” required occupancy within three months after the date of the lease, and provided against assignment or subletting without the consent of the plaintiff; by agreement this lease was slightly modified as to the premises covered on August 2, 1907 and on December 1, 1908. The lease contained the further specific provisions, to wit: “The railway company may terminate this lease at any time upon written notice of not less than thirty days, with or without assigning any reason therefor. Any such notice shall be good if served personally upon the lessee, or posted upon the leased premises, or if deposited in a United States postoffice addressed to the lessee at the following address, viz.: Bismarck, North Dakota. If the lessee shall fail to remove any material, building, or property within the time prescribed in a notice of termination, the railway company may appropriate such property to its own use without compensation, or may remove the same at the cost of the lessee.”
*493Tbe lease did not specify any term. At the heading thereof, there occurred the printed term, “indefinite term lease.” The majority opinion terms this instrument an indefinite term lease or license. It is clearly not a license or a mere privilege.
The appellant contends that the instrument created a tenancy from year to year. In this contention the appellant is correct. This instrument bears all of the ear-marks necessary to create the tenancy, known in law as a tenancy from year to year. It uses the formal words of a lease, there is a rent reserved payable annually as an annual rental; it contains a provision against assignment or subletting. Consequently it was not a pure tenancy at will. Hunter v. Frost, 47 Minn. 1, 49 N. W. 327; 24 Cyc. 1027; Jones, Land. & T. §§ 215 et seq. As a tenancy from year to year, there existed a demise of the premises for the current year, with the privilege of a recurrent period, unless terminated by notice as provided for in such cases, or as otherwise changed by statutory rule. The only question involved in this case is, whether the express provision contained in the lease providing for notice to terminate the same is a provision for termination of this lease by notice so as to end the same at the expiration of one of these recurrent periods, or is an express stipulation to be construed as a contingent limitation, fixing definitely the termination of the lease upon giving the required notice.
I am of the opinion that this written stipulation was a limitation which fixed the period when the lease might be determined. I arrive at this conclusion from the express provisions of the stipulation, which provide that the plaintiff may terminate such lease at any time, upon the notice of thirty days with or without assigning any reason therefor. It is similar to provisions sometimes contained in leases, even in leases for years, whereby a lease may be terminated where the lessor desires to sell or desires to rebuild on the premises. As a limitation it served to fix a time when this lease could be absolutely terminated. The fact that the lessor specifically stipulated for termination at any time, with or without cause, prescribed a conditional limitation absolutely within the discretion of the lessor, and therefore this stipulation served to change the ordinary construction placed upon the statutory rule, or on the general principle of the common law concern*494ing terminations of tenancies from year to year by notice given. Jones,, Land. & T. § 115; Ann. Cas. 1916B, pp. 306, 314, note.
Tbe judgment accordingly should be affirmed.