Browne v. Niles, 165 Mass. 276

Browne v. Niles

165 Mass. 276 | Mass. | 1896

Barker, J.

1. In two floors of the leased building the defendants have cut apertures three and a half feet wide by nine feet long, removing the cross timbers and flooring, and covering the apertures by trap doors with hinges, and using the apertures to give passage to articles raised and lowered by a tackle and fall. Whether the making of the apertures was an alteration of the building within the meaning of the lease, we do not consider, as a majority of the court are of opinion that, upon the facts found, the plaintiffs are not entitled to have the defendants enjoined from using or continuing the openings. Such means of strengthening the floors have been taken as to leave them as strong as ever. The making of the apertures is not shown to have increased the fire risk or the cost of insurance, or to have in any way lessened the value of the building, or its safety, or to have injured the plaintiffs.

*279If the making of the apertures was a violation of the terms of the lease, the plaintiffs have not only their action for breach of contract, but their right to terminate the defendants’ estate. We are of opinion that, if there has been a violation of the terms of the lease by making the apertures, the plaintiffs should be left to their other remedies, and should not be given an injunction forbidding the defendants to further continue the openings. No substantial injury is shown. Atkins v. Chilson, 7 Met. 398, 405.

2. The report requires us to assume that a nuisance exists upon the premises. Assuming further in favor of the plaintiffs that the nuisance is due, not to the effects of the tide, but to the effects of the business carried on by the defendants, we are of opinion that the plaintiffs are not entitled to have the defendants enjoined from permitting or continuing a nuisance upon the premises. The plaintiffs made the lease with full knowledge of the defendants’ business, which was then being carried on on the same premises, and with full knowledge of the uses to which the premises would continue to be put, and the actual use of the premises is found to be no worse than is necessarily incident to the business which was contemplated and expected when the lease was made. If the business is carried on, the continuation of the nuisance can only be prevented by the reconstruction of the basement floor, laying a concrete floor underneath, and concreting the sides to a height to keep out the tide. Thus the effect of an injunction would be to compel the defendants either to stop the business to do which the plaintiffs knew the building was hired, or to make important and expensive alterations in the premises. Without the aid of an injunction the plaintiffs may terminate the lease if the alleged nuisance is a breach of it. There is no express covenant in terms that the defendants will not suffer or permit a nuisance upon the premises. There is a covenant that they will not make nor allow to be made any unlawful, improper, or offensive use thereof. But this ought not to entitle the plaintiffs to stop the use of the building for the very business in which both parties expected it to be used wher the lease was made. The further covenant that the lessees shall be responsible for and pay all damages and charges for any nuisance made or suffered on the premises during the term gives a further remedy to which the plaintiffs may resort, if such dam*280ages or charges shall arise. We are all of opinion that an injunction forbidding, under the circumstances shown in the report, the defendants from permitting, suffering, or continuing any nuisance upon the premises would work inequitably upon the defendants, and that it is not necessary to save the plaintiffs from harm or damage. Decree dismissing the bill affirmed.