Opinion
No. 37034
Decided April 11, 1962.
Mandamus — Writ denied — Clear legal right thereto not shown — Lessee's rights under contract of lease of canal lands.
IN MANDAMUS.
The amended petition in this mandamus suit, brought originally in this court, alleges that the relator entered into a lease of certain canal land with the state through the Department of Public Works and the director thereof; that the lease provided that the land was leased to relator for use for a railroad siding and for building purposes for a term of 15 years; and that the Director of Public Works had the right to cancel the lease at such time as the property should be required for any state or federal purpose.
The petition alleges further that the Department of Public Works canceled the lease on the claim that the property was necessary for state purposes; that the Director of Highways sought to appropriate a portion of relator's property adjoining the leased property but not including the relator's leasehold interest; that while the appropriation proceeding was pending the respondent director, without relator's knowledge, leased the same land, formerly leased to relator, to The Fox Paper Company for a term of 15 years; that the cancellation of the lease, when the premises were not used for state or federal purposes, is contrary to law and deprives relator of a constitutional right to property under the contract and lease.
The prayer of the petition is for a restoration of relator's lease or, in the alternative, that an action in eminent domain be commenced to determine the value of relator's interest in the leasehold.
The respondent, Kauer, and the intervening respondent, The Fox Paper Company, have each filed a demurrer to the amended petition on the ground that it does not state facts which show a cause of action.
The case has been submitted on the amended petition and the demurrers thereto.
Messrs. Goodman Goodman and Messrs. Murphy, Murphy Deddens, for relator.
Mr. Mark McElroy, attorney general, and Mr. Victor S. Krupman, for respondent.
Messrs. Graydon, Head Ritchey and Mr. Bruce I. Petrie, for intervening respondent.
Relator's action is based on his claimed rights under a contract of lease. Nowhere in his amended petition does he allege that the acts which he seeks to have performed by the respondent are acts which the law specially enjoins as a duty resulting from respondent's office. The extraordinary remedy of mandamus will be granted only upon a showing of a clearly defined legal duty and a plain dereliction of that duty. This the relator has failed to do.
The demurrers to the amended petition are sustained, and the writ is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, DOYLE and O'NEILL, JJ., concur.
TAFT, J., concurs in the judgment.
DOYLE, J., of the Ninth Appellate District, sitting by designation in the place and stead of HERBERT, J.