dissenting.
1 respectfully dissent from the opinion of the Court.
The premise of the opinion is that Munns did not present sufficient evidence of an oral lease to avoid a directed verdict. The purported deficiency in the evidence relates to the amount of and description of the property leased. The result reached by the Court on this reasoning is to overturn the verdict of the jury awarding Munns damages for interference with his water supply. By his counterclaim, Munns sought only to be compensated for these damages, not to enforce a lease.
The evidence is clear. Wing agreed that Munns could stay on the property in his trailer house for two years. In the argument to the trial court in support of Wing's motion for directed verdict, Wing’s attorney stated:
There is no issue before the court as to whether or not some kind of tenancy was established. The plaintiff admits that in fact when he purchased the property, he did not attempt to evict the man immediately, nor did he bring an unlawful detainer action. In fact, he agreed the man could stay there two years.
(Emphasis added).
The trial court instructed the jury:
In this case the Defendant has asserted a counterclaim that the Plaintiff has breached an agreement that Defendant could reside on the Plaintiff’s land for a 2 year period by interfering with the water supply to Defendant’s residence. Defendant has the burden of proving each of the following propositions:
1. That such an agreement was in existence between Plaintiff and Defendant;
2. That the Plaintiff has failed to substantially perform the agreement;
3. That because of Plaintiff's failure to perform the Defendant has been damaged; and
4. The nature and amount of the damages suffered by the Defendant.
Wing has not contested this instruction on appeal.
The evidence and Wing’s admission indicate that Wing agreed Munns could live in his trailer house on Wing’s property for two years. Whether Munns had the right to occupy more than the ground on which his trailer house sat is not germane. I cannot agree that the motion for a directed verdict should have been granted because the agreement was uncertain how much more property Munns was entitled to use. Munns use of the water related to his trailer house only.
BISTLINE, J., concurs.