The following is the opinion of Department Two, adhered to by Justice Melvin, rendered on November 29, 1909: — An action was commenced under the so-called McEnerney Act to establish plaintiff's title to certain property in the city and county of San Francisco; to determine adverse claims to said realty; and for general relief. Upon motion the complaint was dismissed and this appeal is taken from the order of dismissal. The grounds of the motion were: 1. That the estate claimed by the plaintiff is not an estate for the establishment of title to which an action of this kind may be brought; 2. That plaintiff does not appear to be in the actual and peaceable possession by itself or its tenants holding under it, of the premises to which plaintiff seeks to establish its title; 3. That the affidavit of plaintiff does not set forth or show when or from whom the Potrero Nuevo Land Company acquired its title to the described premises.
The asserted title of plaintiff derived by mesne conveyances from one John Bensley was to an estate of inheritance in certain "Beach and Water Lots," the complaint alleging that the corporation plaintiff succeeded to such title after its sale by commissioners to Bensley under the act of May 18, 1853, and the supplemental statute of May 1, 1855. *Page 738
By the act of March 26, 1851 (Stats. 1851, p. 307), the state granted to the city of San Francisco the "use and occupation" of certain "Beach and Water Lots" for the period of ninety-nine years from and after the passage of the act. By a subsequent statute of May 18, 1853 (Stats. 1853, p. 219), it was provided that commissioners to be appointed by the governor should sell the remaining interest of the state in these lots "after the expiration of the estate or term granted or mentioned" in said act of March 26, 1851. The act of 1855 wrought a change in the personnel of the board of commissioners. Plaintiff asserts title to the fee formerly held by the state subject to the tenancy for ninety-nine years of the city and those deriving title under it. Defendants claim the right to the "use and occupation" of various parcels of the property founded upon the act of 1851 and some of them also declare that they hold their portions of the land in fee.
The lower court in granting the motion to dismiss held that while plaintiff's estate was one of inheritance, it could not maintain the suit; that in addition to such an interest it must be in the actual and peaceable possession of the property; that the grantees of the city are not tenants of the state nor grantees of the state, and that, as no one will have possession under the reversionary right of the state until 1950, the plaintiff cannot now be in occupation of the property by its tenants or otherwise.
We find ourselves unable to agree with these conclusions. The state having disposed of the fee, subject to the use and occupation for ninety-nine years, its grantees or their ultimate successors in interest occupy the exact position of ownership formerly held by the state. Undoubtedly, the city and its successors to the estate for years hold the property subject to this reversionary interest. It makes no difference that their term is a very long one; they hold the land subject to the title in fee, precisely as they would possess it under a lease for a year or any other short term, because an estate for years is a leasehold interest and is personal property. (Jeffers v. Easton,Eldridge Co., 113 Cal. 352, [45 P. 680]; Summerville v.Stockton Milling Co., 142 Cal. 529, [76 P. 243].) To be sure there was no contract of rental between plaintiff and defendant, but the sale of the term for years under the act of March 26, 1851, was in itself a contract of rental and *Page 739 the state (the landlord) was entitled under the act to twenty-five per cent of the money realized from such sale; but aside from this the relation of landlord and tenant may arise without rent reserved. Taylor in his work on Landlord and Tenant at section 14 says: "The relation of landlord and tenant subsists by virtue of a contract, express or implied, between two or more persons for the possession of lands or tenements." And Martindale on Conveyancing at section 293 says: "The relation of landlord and tenant may arise by implication or by the act or operation of law." Section 1 of the McEnerney Act provides that: "Any person who claims an estate of inheritance or for life in, and who is by himself or his tenant or other person holding under him in the actual or peaceable possession of any real property" may bring an action of this kind. (Stats. 1906, (Ex. Sess.) p. 78.) We see no logical escape from the doctrine that the relation of landlord and tenant exists; that the possession of the latter is that of the former; and that appellant has the right to maintain this action.
There is no merit in respondents' contention that the motion to dismiss was properly granted because appellant failed to disclose by its affidavit fully and explicitly "the character of his estate, right, title, interest or claim in, and possession of property, during what period the same has existed and from whom obtained." (McEnerney Act, sec. 5.) The affidavit did show "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." This, we think, was amply sufficient for the purposes of the remedial act here considered.
The order from which this appeal is taken is reversed.
Henshaw, J., and Lorigan, J., concurred. *Page 740