Kelly v. Tri-Cities Broadcasting, Inc

195 Cal.Rptr. 303 (1983)

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Nature of the Case

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Facts

In 1975, Tri-Cities purchased a radio business from Far West. The radio business leased land from Kelly. Tri-Cities purchased the lease as part of its purchase of the business. The prelude to the 1975 sale was in 1965 when Bambrick leased land from the Kellys for a twenty-year period upon which was placed a radio tower, antenna, and transmitter. In return for this concession upon their land, the Bambricks were to give the Kellys five minutes of advertising time every day seven days per week to advertise Kelly's business or its assigns. In 1970, Bambrick sold to Far West and West complied with the terms of the lease. In 1975 after several years of nonuse, Tri-Cities purchased the business and operated the site for a period of nine months and then removed the transmitter to another site. The Kelly site was abandoned in 1977. The lease provided for arbitration and Kelly filed a petition for such arbitration. Tri-Cities claimed that it was not even sure a lease existed, no written assignment had occurred, that Far West was aware of the lease provision, and so honored them and that no demand for radio time had been made since 1979, and that Tri-Cities did not assume the lease as it intended to remove the transmitter after the FCC approved its new site and when that approval was received, it removed the equipment. The Kelly's refuted these contentions with direct evidence of property tax payments, the Kelly's being stated in Tri-Cities insurance policy, notice from and acceptance of the terms of the lease by direct conversation, and sale and possession by Tri-Cities of the property. The arbitrator found that the lease was assumed as was ruled upon by the Superior Court.