194 Mass. 123 | Mass. | 1907
On March 16,1899, the plaintiff was the • owner in fee of adjacent lots of land on Washington Street in Boston. These lots were occupied by buildings used as a hotel, by the Park Theatre, and by a covered passageway called Gibbons Court. Gibbons Court runs westerly from Washington Street about eighty feet, between the hotel buildings on the south and the Park Theatre on the north. It is about ten feet wide at its easterly end next Washington Street, and about fourteen feet wide at its westerly end. At the entrance from Washington Street the sidewalk is discontinued upon both sides, to permit the unobstructed passage of teams in and out. On March 16, 1899, it was paved with stone flagging, and was arched and built over by the hotel buildings at about the height of adjacent stores. It is bounded on the south by the hotel buildings, on the west and north by Park Theatre, and on the east by Washington Street.
At this date the rooms over Gibbons Court and rooms over the lobby of the theatre, and those in the Park Theatre building had long been used as a part of the hotel. Those in the theatre building were expressly excepted from the premises leased for a theatre. They included, from the first story to the roof, some four or five stories. At a considerable distance from Washington Street there was a small doorway from the hotel into Gibbons Court, and near the extreme southwest corner of the
The principal entrance to the theatre is from Washington Street through the lobby. At the westerly end of Gibbons Court there is a large exit from the auditorium of the theatre, nearly equal in width to the width of the court at that end. This is opened only at the close of a performance, or for ventilation. This exit from the theatre through Gibbons Court has been used about twenty years. At some distance from Washington Street there is a large doorway opening from the lobby of the theatre into Gibbons Court. There is no way for an audience to enter or leave the theatre other than by the lobby or Gibbons Court. In view of the building laws of the city of Boston (Sts. 1892, c. 419, § 90; 1894, c. 443, § 23) the authorities of Boston would not permit the Park Theatre to be used as a place of entertainment, if Gibbons Court should be permanently obstructed, unless some other suitable exit should be provided as a substitute. Under present conditions it is impracticable to provide such an exit.
On March 16, 1899, the plaintiff gave a lease of the hotel to Gould and Polio for ten years from May 15, 1899, of which the defendant is the assignee and present holder. The description of the leased property is as follows: “ The following described premises, namely, buildings numbered 625 to 631 inclusive on Washington Street, Boston, Mass., together with the basement under said premises, meaning thereby the entire buildings, containing stores, and all floors over said stores meaning thereby all the real estate I now own on Washington Street excepting the building known as the Park Theatre.” The defendant now contends that Gibbons Court passed to him as a part of the leased premises, and he threatens to close it and use it for mercantile purposes.
The question thus presented calls for a consideration of this language in its application to the property. If we look at the entire description of the property antecedent to the explanatory part, We have only the “ buildings numbered 625 to 631 inclusive.” Then follows this explanation, which does not enlarge the demise, “ meaning thereby the entire buildings, containing stores, and all floors over said stores.” In the substantive part
The defendant relies upon the final explanatory clause, “ meaning thereby all the real estate I now own on Washington Street excepting the building known as the Park Theatre.” The general rule is that where real property is described by a particular and definite description, the addition of an inconsistent general description does not enlarge the grant. Whiting v. Dewey, 15 Pick. 428. Melvin v. Proprietors of Locks & Canals, 5 Met. 15. Dana v. Middlesex Bank, 10 Met. 250, 255. Sawyer v. Kendall, 10 Cush. 241. Presbrey v. Presbrey, 13 Allen, 281.
Moreover, in the present case the lessor described her real estate on Washington Street as if it consisted of buildings only. She included in the lease only certain buildings, and she described them as being all her real estate on Washington Street except a certain other building. Gibbons Court is not a building. ' In a strict sense it does not fall within the description of that which she leased at that time, or of that which she excepted from the lease. If, in reference to such a description as this, it is to be treated as belonging to a building and passing as a part of a building, it certainly belongs to the building known as Park Theatre rather than to the buildings used as a hotel. It was included in the part excepted. Allen v. Scott, 21 Pick. 25. For many years it has been an important and necessary appurtenance of the theatre, while its use with the hotel was of
The defendant has no rights in Gibbons Court other than to use it as an appurtenance of the hotel, substantially as it was used when the lease was made, with such modifications of the use as have been authorized by the lessor in writing since the lease was executed.
Decree for the plaintiff.