Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Edward E. Cushman, Judge.

Suit by the Monidah Trust against the Arctic Construction Company. From a decree for defendant, plaintiff appeals.

The appellant brought a suit in the court below to set aside an appraisal of the value of land under a lease and for a decree of the court to determine the true value of the land. The lease was made in 1908. It was a lease of unimproved city property for a term of 50 years. It provided that the rent to be paid by the lessee should be upon a basis of 4 per centum per annum net upon the appraised value of the property. The lease fixed the value for the first 5 years of the lease at $540,000, and for the next 5 years at $630,000, and provided that the remaining 40 years of the lease should be divided into four periods, of Í0 years each, the value for each 10-year period to be determined by appraisement, each party to the lease to appoint an appraiser, and the appraisers so appointed to appoint a third appraiser, all of whom should be disinterested parties, competent to estimate the value of said property, and it provided that the appraisers should examine the property without the improvements and determine the value thereof, and that the decision and approval of the appraisers, or a majority thereof, should be binding and conclusive upon the parties for the next 10-year period, and that it should be the basis on which the 4 per cent, annual rental should b'e computed. The lease also provided that the lessee at its own expense should construct within a limited time a commercial building on the premises, at least seven stories in height, the building at the end of the lease to revert to the lessor. After the execution of the lease the lessee went into possession and constructed the building, and paid the agreed rental for the first 10 years.

The appraisal in controversy was made for the 10-year period beginning June 1,1918. The appraisers were Heitman, selected by the appellant, Nichols, selected by the appellee, and Folsom, selected by the other two. Those 3 proceeded to take evidence as to the value of the property. They examined 16 witnesses, most of whom were experts on the value of real estate. The valuation placed on the land by the witnesses varied from $150,000 to $540,000. The figure finally adopted was that of Folsom. He arrived at his result in the following manner: He computed what in his opinion would be the total annual gross income from the improved property, which he found to be $53,700. From this he deducted estimated amounts for taxes, insurance, and other items of expense, including allowances to the lessee for amortization of the building, management, and interest on the money invested in the building, and arrived at a net income of $8,685.22 per annum, and this he divided by 4 and multiplied by 100, whereby he arrived at the $217,130 which he assigned as the value of the vacant ground. Both the other arbitrators at first did not agree; Heitman claiming that the value was too low, and Niehols that it was too high. Niehols, however, after conferring with the secretary of the appel-lee, announced his willingness to acquiesce in Folsom’s estimate. Heitman refused to assent.