concurring and dissenting.
The Court’s opinion tells the trial court and the litigants that it is unclear how the trial court reached its conclusion that the Ahlins had a “premises interest” in the license hanging on their inside walls since the 1959 change in liquor law licensing. If that be so, the cause could be remanded for clarification. Stecklein v. Montgomery, 98 Idaho 671, 570 P.2d 1359 (1977). But, says the Court, that is unimportant, and in footnote 4, the Court explains its own rationale that premises are not licensed, people are licensed. I would imagine that persons charged and fined under I.C. §§ 23-928 and -934 might entertain a different view. See also I.C. §§ 23-912 and -913. For my part I have thoroughly understood that a license does issue to a person for a particular premises. Accordingly, I am not as perplexed with Judge Smith’s decision as the Court makes itself out to be. Other than that, I do agree that the trial court could not properly decree that the license must be transferred to the Ahlins. At the same time I cannot believe Judge Smith was clearly erroneous, if in error at all, in concluding that the Ahlins had a protectable right in having the license remain with the premises.
It would also seem to me that the Court errs in resorting to the respective advices given to the respective parties by their respective counsel, purely self-serving declarations in anyone’s ball game. What is important is the past conduct of the Ahlins and their various lessees who necessarily had to have Ahlins’ consent to sell liquor by the drink on the premises. Equally important is the language of the 1975 lease provision:
“15. ASSIGNMENT OF LICENSES DURING TERM OF LEASE. It is understood and agreed that all licenses for the property and premises herein leased are not to be transferred or sold during the term of this lease or the renewal term hereof, unless such transfer is being made in connection with the assignment of this lease with the consent of Owners.”
Key words therein are that the licenses “are not to be transferred,” and also that the licenses “are not to be sold.” A sale of a license will naturally involve a transfer (assignment) of the license to another person. Not so with a transfer. A transfer is more capable of meaning a transfer to another premises than it is of being given any other meaning. So read, the 1975 provision is hardly any different than the 1959 provision, “that the license for these premises are not to be transferred or sold to any *374other premises.” The license was in 1975, as with 1959, understood to be for Ahlins’ premises — these premises — and precluded a transfer away to another premises. Equally clear, in both provisions, removal of the license could not be effectuated by a sale of the license. That the 1975 provision added the extra, and I think unnecessary words, “during the term of this lease or renewal term hereof,” is of no moment. In both leases the provision against transfer and the like provision against sale had equal efficacy in prohibiting the sale of the license or the transfer of the license by any lessee who accepted the lease and took possession thereunder; the additional language in the 1975 lease added nothing. For certain it did not, couched in the negative or prohibitory as it was, inferentially create the right to transfer or sell the very minute after the lease term expired. To say you can’t do it now does not create the right to do it later.
I have no problem in seeing that from the time the 1959 act was passed this particular licensing right became wedded to this particular premise of the Ahlins — which was not an unusual occurrence in those situations where owners of leased premises were quick to realize two things: (1) That an operator needed a premise from which to dispense hard liquor and a consenting landlord; and (2) that some given premises already adapted to and committed to a tavern or lounge business weren’t worth a tinker’s dam if the license went elsewhere. Such was reflected in the situation of the Ahlins and the special covenants of their consent-granting leases.
If it were necessary to find a mutual mistake, a proposition which is highly doubtful, the mutual mistake made in 1975 was a failure upon the part of both parties to realize that the courts would have trouble with language which the parties knew or should have known required that the license not be transferred to other premises, and that the lease conveyance and the granting of the required consent were a continuing and valid consideration for the express, and if not express, then implicit, agreement that the license must remain with the premises so long as the premises were available and until the Ahlins consented otherwise.
I find no substance in the Court’s meanderings to the effect that it would be unlawful for the owner of a premises and an operator to have an agreement that the license remain with the premises, the inference on the Court’s part being that it is, for the owner, an undisclosed “interest” in the license. In the first place, it is disclosed, and in the second place it does not create in the owner any interest whatever in the licensee’s operations. Simply put, the special covenant has only one value to the owner, to wit, protecting the marketability of his property — which absent the property being used as a licensed premises may cause a drastic reduction in sale or rental value.
Insofar as the instant case is concerned, the parties should have been left by the court as it found them. If the license holder chooses to not renew the license timely, as the law requires, then both parties suffer a pecuniary loss. If the license holder wants to sell the license, or transfer it to another premises, he is obliged to buy out the special covenant.
But for the Court to deny the Ahlins that which they bargained for and lived with for a quarter of a century is extremely unjust.
I dissent.