155 Wis. 108 | Wis. | 1913
Lead Opinion
Appellants do not claim that the common-law action for waste would lie or that any action would lie on the facts before the court, were it not for the express covenants of the lease. But they argue thai they have the right to lease their property under such conditions as they see fit and they have the right to see that these conditions are fulfilled, no matter whether substantial damage results from their nonfulfilment or not. It may well be doubted whether a court of equity, which ordinarily grants its injunctive relief to prevent irreparable injury and damage, should or would use its remedy to protect purely technical or theoretical rights, but we will not discuss or decide the question because we do not think the proposed action of the defendant runs counter to the covenants of the lease, for the reason that what the defendant proposes to do is not an “alteration” in the leased premises.
Ordinarily the word “alteration” as applied to a building means a substantial change therein. It is expressly so held in Comm. v. Hayden, 211 Mass. 296, 97 N. E. 783, and this definition was adopted by this court in Kresge v. Maryland C. Co. 154 Wis. 627, 143 N. W. 668. It is substantially so held in Bigelow v. Worcester, 169 Mass. 390, 48 N. E. 1, where it is said that reshingling a building is not an alteration of it. The foregoing definition is not a hard-and-fast one in
It was suggested on the oral argument, although no such contention is made in the appellants’ brief, that under the agreements the defendant is bound to use the electric current generated by plaintiffs exclusively for all purposes. The contract does not so provide. It does not mention current that might be used for heating or power purposes. In fact it does not require the defendant to use any current, but he must pay a minimum of $200 a year whether he uses current to that amount or not. If he saw fit to use tallow candles instead of electricity for lighting, he might do so, but he would still have to pay $200 a year for electric current because'he agreed to do so.
The real controversy arises over the covenant in the lease which prohibits the tenant from making alterations in the premises without the consent of the lessors. No claim is made that the connection which the defendant proposes to make will result in damage or injury to the building, and the showing made on the motion to dissolve pretty clearly showed that no substantial injury or damage would result.
The circuit judge decided that the proposed act of the defendant did not constitute an alteration of the premises and neither did it constitute waste, citing Brock v. Dole, 66 Wis. 142, 28 N. W. 334, and Melms v. Pabst B. Co. 104 Wis. 7, 79 N. W. 738. The first ease arose between landlord and tenant and the second between life tenant and remainderman. In the first case it is said that any- material change is waste, even though it enhances the value of the property. In the second it is substantially held that very material changes may be made by the life tenant, so long as the value of the property is not thereby depreciated. So we have a different rule applicable to the ordinary relation of landlord and tenant from that which applies to life tenant and remainderman.
There is no other provision in the lease which affects the question before us. If rule 12 has any application to anything other than the telegraph and telephone wires mentioned, then the clear implication is that the tenant has the right to install the- wires, but under the direction of the plaintiffs. Such right is given the plaintiffs in the order appealed from. It seems so obvious that the second .-clause quoted from the lease in the statement of facts has no bearing on the question before us that we refrain from discussing it.
By the Gourt. — Order affirmed.
Dissenting Opinion
(dissenting). I do not think this case was correctly decided. The facts of the case and the covenants relied upon to uphold the injunction are sufficiently set forth in the majority opinion.
The word “alteration” is' one that can never acquire by judicial decision a fixed or definite meaning, because it connotes change from and is always relative to some former state or condition. As such former state or condition is capable of unlimited variety so must the alteration be. This word is subject to the usual interpretative influences of subject, context, associated words, and further liable to be affected in its meaning by the varying former conditions to which it relates. No doubt to create a legal liability the alterations should