169 Mass. 150 | Mass. | 1897
The exceptions do not describe the basement room and the means of access to it from the street with exactness, but from the explanations made at the argument and the rough plan exhibited we think we are able to understand the case. As the building was originally constructed it was plainly not intended that the elevator should be used for hoisting goods
Cummings and Thrope first entered into occupation of the basement room on January 1, 1884, under a lease from J. Franklin Faxon, Elms, and others, for four years from January 1, 1884. This lease was dated April 3, 1883, and by it the lessors “ do hereby lease unto the said Cummings and Thrope the basement room of the building known as Church Green, situated on the corner of Summer and Bedford Streets, in the city of Boston, now occupied by the Shoe and Leather Association, and [sfe] to make the necessary connection in said room with the freight elevator now in said building, and to furnish, free of charge, the use of the same to the said lessees for the purpose of bringing their finished goods from the two,upper chambers of the adjoining estate, which they are expecting to occupy for manufacturing purposes, to said basement through the connection which is already made between said elevator and said chambers, making no new openings or connections.” There follows a provision that the lessees, before they take possession, shall deposit with the lessors bonds or other securities satisfactory to the lessors,
The exceptions recite that “ a door was cut, at the time of commencement of this lease, through said brick partition from said basement into the engine room, so that access might be had from said basement to said elevator by going through said doorway in said brick partition, then through and across the engine room to the further corner thereof, where the elevator was situated,” etc. The exceptions continually refer to the lessees under this lease as the plaintiffs in the action, but the lessees under this lease are Josiah Cummings and Walter Thrope, who sign the lease individually and as Cummings and Thrope, while the plaintiffs are Josiah Cummings and Edward J. Cummings, partners under the name of Josiah Cummings and Company, who are the lessees in the lease from the Boston Real Estate Trust, hereinafter mentioned. We infer that one firm was the successor to the other, and that the change in the firm was made some time during the continuance of the first lease. For convenience, we shall follow the language of the exceptions, and shall consider the plaintiffs as occupying under both the first and second leases, which is perhaps as favorable a view to the plaintiffs as can be taken.
On December 28, 1887, the plaintiffs, Josiah Cummings and Edward J. Cummings, partners as aforesaid, as lessees executed a lease with the trustees of the Boston Real Estate Trust, to whom Faxon and others had conveyed the whole estate in September or October, 1886. By this lease there was demised and let to said lessees “ the basement room of the building known as Church Green, at the corner of Summer and Bedford Streets, in said Boston; also, with one horse power only, rooms numbered 29 and 30 in said building. The lessors reserve the right to terminate this lease as to said rooms 29 and 30 on the first day of January, A. D. 1890, By giving the lessees sixty days’ notice in writing; in ease of such termination, the rent from and after January 1, 1890, shall be for the remainder of the premises four thousand two hundred and fifty dollars yearly. The
The Boston Real Estate Trust assigned this lease to the defendant on March 1,1888, and thereafter the defendant collected the rents “ and stood in the place of the lessors.”
The exceptions recite as follows: “ From January 1, 1884, to December 31, 1887, these plaintiffs occupied upper chambers of an adjoining estate, called the Sprague estate, for the purpose of manufacturing their goods; a passageway was cut through the partition wall into the Church Green building to enable the plaintiffs to load their merchandise from these upper rooms on to the elevator, so they might have it lowered to the engine room, thence across the engine room to the basement named in the lease. From January 1,1888, to January 1, 1890, in addition to a portion of the said upper chambers, the plaintiffs occupied rooms 29 and 30, which were in the upper part of Church Green building, on a floor adjoining said upper chambers in said adjoining estate. These were also used for manufacturing goods which were transferred to the basement, by means of said elevator, for sale. The plaintiffs testified that during the continuance of the lease expiring December 31,1887, (Exhibit B,) and also during the continuance of the lease commencing January 1, 1888, (Exhibit A,) up to January 1, 1890, the plaintiffs used said elevator for the purpose of shipping from the basement all goods they handled. There was no evidence that this defendant, or any prior lessors, knew of or assented to this latter use of the elevator, unless it be contained in the following testimony, that of E. J. Cummings, plaintiff, who testified that under the old lease the use of the elevator in connection with the basement was continuous, and that it was used by the tenants throughout the building generally, and that the owners, the Trust Company, told the plaintiff that the elevator was for the use of the tenant. J. Cummings testified that the elevator was used with the basement, and the arch cut out for such use by the lessor Elms, and so continued to be used until December 24, 1889.”
It is conceded on both sides that the words “ with one horse power only,” found in the last lease, relate to the elevator, and
The principal question in the case is whether the plaintiffs had any right to use the elevator for hoisting goods from the basement room up to the sidewalk, or for lowering them from the sidewalk to the basement room, as incidental or appurtenant to their estate in the basement room under the last lease. This claim of the plaintiffs is stated in the charge of the presiding justice as follows: “ In the first place, with reference to the right of the plaintiffs to make this use of the elevator and the approach to it from the basement, in connection with the business of the basement, that is, to take goods from the sidewalk into the basement, and from the basement out on to the sidewalk, this right is not given by any express words in the lease. The lease is silent with reference to that. It merely leases the rooms, the basement and the two rooms above, so that the plaintiffs do not claim to have acquired this right to this approach and to the elevator by any express words in the lease ; but they claim that it is given in the lease by virtue of the situation of the premises, and the use that had been and was made of them, the construction of the premises, and the design as to the use of the elevator in connection with the basement by the owner of the building. That by reason of the circumstances, the situation and adaptation of the building, and the use that is made of it, this right to use the elevator passed to them as an incident to the use of the basement for their purposes; or, to use a technical word, as an appurtenance,
The presiding justice instructed the jury, among other things, as follows: “ Now, having considered the facts with reference to these different matters .that I have called your attention to, I will instruct you, that if the elevator and approach thereto were constructed and designed by the owner of said building to be used in connection with said basement, and the other parts of said building, for the purposes claimed by the plaintiffs; and the elevator and approach were used by the plaintiffs for the purposes claimed by them in connection with the basement, in carrying on business therein, with the knowledge of the lessors at the time of their lease to the plaintiffs, commencing January 1,1888, and if from the date of said lease to the time of its assignment to the defendant, the elevator and approach were used by the plaintiffs for the purposes now claimed by the plaintiffs, in carrying on their business in said basement, with the knowledge and consent of said lessors, as a privilege belonging to the plaintiffs as the lessees of the basement, then the defendant would not have the right, upon becoming the assignee of the lease, to prevent the use and enjoyment of that privilege, the use of the approach, and the use of the elevator; and if he did prevent the use of it by the plaintiffs, he would be liable to pay any damage which they sustained by reason of that prevention.”
This court has held the doctrine of implied grants with a good deal of strictness. Buss v. Dyer, 125 Mass. 287. Randall v. McLaughlin, 10 Allen, 366. Lowell v. Strahan, 145 Mass. 1. Johnson v. Knapp, 150 Mass. 267. Case v. Minot, 158 Mass. 577. It is true that, when a person hires a room in a building, a right to use the apparent means of access and exit often passes as appurtenant to the premises hired. In modern buildings of great height this doctrine we assume may be applied to elevators. Whether an active duty to maintain an elevator for the use of tenants can be implied may be open to question, but if an elevator is in fact maintained by the landlord, the duty to permit tenants to use it, we assume, may be implied if this is reasonably necessary for the beneficial occupation of the rooms let,