In re the Estate of Brash ( 1909 )

OPINION OF THE COURT BY

PERRY. J.

(Hartwell, C.J., dissenting.)

The fire .claims commission appointed under Act 15 of the Session Laws of 1901 “to provide for the ascertainment and payment of all claims which may be made by persons whose property was destroyed by fire in the years A. D. 1899 and 1900, under orders of the board of health,” made an award No. 6680 in favor of “Estate of” one Brash for the loss of certain buildings in the sum of $800, stating’ on the face of the judgment, “Above award subject to interest of Claim 5451.” Upon the latter claim the judgment of the commission in so far as it is material to this case was: “Award on buildings in above claim made to .claim 6680 is subject to the interest as it may appear of this'claim No. 5451 for $800.” The buildings referred to in both of these awards stood upon land owned by the estate of Brash, and had been erected by the appellants, Pang King Chee and Bum Kan as partners under the firm name of Yee Sing Stables, who held the land under a lease which provided that all future erections and improvements on the land should be delivered up to the lessor at the expiration of the term of the lease or other sooner determination thereof. The appellee is an heir at law and devisee under the will of Brash. The order of the circuit judge now appealed from, directing payment of the whole sum of $800 to appellee, was made upon two motions, one by the appellee and the other by the0 appellants, filed in the above entitled matter, each movant asking for an order of payment to him of the whole sum.

It is unnecessary to attempt to construe the two awards any further than to say that neither of them contains an adjudication that the present appellants are entitled to the whole or any part of the $800. Upon what theory the commission proceeded in omitting to adjudge specifically what the lessees’ right to damages was, we need not say. It may be assumed that the condition in which the commission left the matter is such that the right of the lessees in this $800 may now be determined judicially and also that the particular method of ascertainment, by motion in probate, followed before the circuit judge in this instance, is the correct one, — for we think that the appellants are not in any event entitled to any part of the amount awarded.

J. IAghtfoot for the appellant. JE. M. Watson for the appellee.

Act 15 upon its face shows that the Territory in consenting to hold itself liable for losses caused by the fire of 1899 and 1900, intended to limit that liability to payment for losses of only' certain kinds of property. The term “property” as used in general law and sometimes in statutes includes, it is true, many rights and interests, sometimes referred to as intangible things,- and would also include a right secured -by contract to the use of buildings for a stated time. In this instance, however, the statute, while providing for compensation “for the destruction of or direct damage to property by fire,” specifically directs (section 7) that the commission shall allow “no claim for speculative or consequential damage or for loss of rent or use of property, or loss of profits through the interruption of business,” or, omitting immaterial portions, “no claim * * * for loss of * * * use of property.” This language, it seems to us, is too clear to require construction. The appellants’ property, it is unquestioned, consisted merely in the right to use the buildings (and the land) during the unexpired term of the lease. While they undoubtedly suffered a loss bv reason of the fire, that loss was of a kind for which under the express terms of the statute no allowance was permitted to be made.

The order appealed from is affirmed.