192 A. 149 | N.H. | 1937
A building placed on the land of another with the right of removal may be treated as distinct from the land. Voudomas v. Bragg,
Moreover, the mere fact that a lessor covenants to pay all taxes assessed against the leased premises does not necessarily mean that the word "premises" must be deemed to include those additions which the lessee has made to the property after the execution of the lease. Phinney v. Foster,
Since the real estate involved in the present controversy was unimproved at the beginning of the term, the description of the demised premises in the first clause of the lease as a parcel of land is not of controlling importance. The designation was accurate and, in the absence of any provision to the contrary, all "non-removable additions and improvements" would become a part of the realty and belong to the lessor. Boston Maine Railroad v. Railroad, *32
Other provisions, however, are more significant. The third clause provides that the lessee may erect and install such equipment and apparatus as it deems necessary for its business, may make "alterations and changes," and may paint "in Shell colors, the buildings," equipment or apparatus, "now or hereafter upon the leased premises." The fifth clause refers to "buildings, tanks, pumps and other structures" necessary for the keeping, storage and sale of not less than 4,000 gallons of gasoline and 500 gallons of lubricating oil and to the construction and maintenance of driveways. It is thus apparent that the lessor understood when it covenanted to pay "all taxes, assessments and other governmental or municipal charges levied or assessed upon the leased premises" that the defendant was to conduct thereon the "business of operating a gasoline filling and/or automobile service station."
Because of the implied restrictions of the lease the defendant could not use the premises for any other purpose (Tiffany, L. T., p. 804, and cases cited), and it is a fair inference from the agreed facts that the structures erected are merely such as the parties must have contemplated in view of the location of the leased property on one of the principal thoroughfares of Manchester.
In this respect the case differs from Phinney v. Foster,
The defendant has paid the tax on its tanks, pumps, and stock in trade without objection, but denies its obligation to pay the tax on the buildings and other improvements which cannot be moved without destruction. The eighth clause of the lease provides that the lessee "may at any time during this lease and within thirty days after its termination enter upon and remove from the leased premises any property owned or placed thereon by it." Buildings are not specifically included in this clause although reference thereto is made *33 in each of the other clauses where the additions and improvements are mentioned. Construing the eighth clause in connection with the others already considered, we believe it to be fairly arguable that the word "property" was intended to embrace only specific articles of personal property, such as pumps and tanks, and was not intended to apply to buildings or other structures. However, the question here decided relates merely to the obligation to pay the tax, and no opinion is expressed as to the right of the defendant to remove or dismantle at any time the structures it has erected.
It is suggested that since the lessee is required to surrender the premises at the termination of the lease in as good condition as they were in at the time of the letting, the defendant has no option as to the removal of all additions it has made, and that such additions must therefore be treated, so far as the parties are concerned, as personal property. But the clause in question does not mean that the permitted additions must be eliminated and the initial condition restored. "If that had been in the minds of the parties, words indicating identity with the former condition and not comparative excellence would have been employed." Cawley v. Jean,
The lessor's covenant to pay taxes is explicit and includes in terms all assessments and charges that may be levied on the leased premises. The structures erected by the lessee are real estate for the purposes of taxation (Granite State Land Co. v. Hampton, 76 H.N. 1, 7; O'Donnell v. Meredith,
The construction for which the defendant contends is accordingly adopted, but since there is no agreement for judgment and since the questions of law arising under the agreed facts have been transferred merely "for advice and information" (Fidelity c. Ins. Co. v. Brennan,
Case discharged.
All concurred. *34
