The opinion
*391
CURTIS, J., Dissenting.
I dissent.
There is undoubtedly very respectable authority from other jurisdictions to support the conclusions reached in the majority opinion. It is admitted, however, that the question involved in this controversy has never been expressly passed upon by the courts of this state. The rule as enunciated in the opinion is to my mind both unreasonable and inequitable.
On the other hand, there is ample authority to support the contention of appellant that the rent to be paid by the tenant should be reduced
pro rata
and that the value of the land taken should be paid to the landlord. In Lewis on Eminent Domain, third edition, section 718, we find the following:
“Undoubtedly the conclusion which is practically the most satisfactory and which can be applied with the least injury to the parties is that the taking operates to extinguish the obligation to pay rent, in whole or in part, as the case may be. Under the opposite rule there is handed over to the tenant a portion of the damages which is the equivalent of the rent to be paid, and the landlord may lose his rent by the insolvency of the tenant or otherwise, or be put to a suit in equity to have the fund impounded for his benefit.”
Taylor on Landlord and Tenant, eighth edition, section 386, states the law in practically the same language as that used by Lewis on Eminent Domain. Tiffany on Landlord and Tenant, volume 1, pages 1184-1186, also agrees with both Lewis and Taylor and states the rule as follows:
“It appears to the present writer that, when the ownership of either a part or the whole of the leased premises, the ‘fee’ as it is usually called, is taken under the power of eminent domain, the liability for rent should be proportionally reduced or extinguished, for the simple reason that the leasehold interest in the land taken has come to an end by reason, of its merger in the reversion.”
It appears to me that it is more important that we lay down a just and equitable rule in this state to be followed in condemnation proceedings of this character than to adopt one which is neither fair nor equitable, even though this latter rule is supported by authorities both numerous and weighty from other jurisdictions.
*392
It is conceded that when the whole of the leased premises is taken by the condemnation proceeding the lease is terminated and such taking, operates to release both the tenant and the landlord from the terms of their lease. I can see no good reason why there should be a different rule applied to a case where only a portion of the premises is taken. If the condemnation proceeding can wipe out a lease in its entirety, is there any good or legitimate reason for saying that it cannot modify it to the extent of the property taken ? I am unable to see why any distinction is made in these two classes of cases.
Richards, J., concurred.