3 S.D. 77 | S.D. | 1892
This was an action" for rent. Verdict and judgment for defendant, and the plaintiffs appeal. The complaint is in the usual form, and demands judgment for rent for the months of August, September and October, 1890, amounting to $225. The defendant admits that the rent for those months has not been paid, and sets up a counterclaim, pleaded by way of - recoupment, in substance, that, during the months mentioned, the plaintiffs obstructed the sidewalk and street in front of the premises leased,
The case was submitted to the jury, with certain instructions, the more important of which are as follows: “If you shall find that the plaintiffs assumed exclusive control in front of the place of business, and have prevented enjoyment in the use of the premises leased for the purposes for which it was leased, then such possession and use by the plaintiffs is, for the purposes of this action, a sufficient eviction. Now, understand me about this matter: If you shall find from the testimony introduced in this action the plaintiffs used the street in front of this place of business to the exclusion of any rights which this defendant had in the street; and if by that act the defendant has been wronged by being deprived of the free use and enjoyment of these premises, that amounts to an eviction.” “As to the matter of eviction. It is not necessary there should be any act of a permanent character, but any act which has the effect of depriving a tenant of the free enjoyment of the premises, or any part thereof, or any appurtenances pertaining to these premises, must be treated as an eviction; and I charge you that any act of the plaintiffs which has deprived the defendant of the enjoyment of the free right pertaining to and belonging to Mm as tenant may be treated as an eviction.” The giving of these instructions is assigned, with a large number of other alleged errors; but as they are all embraced in these instructions, and the four propositions contended for by the counsel for the' appellants', it will not be necessary to further notice them.
The learned counsel for plaintiffs (appellants) contends: (1) That the covenant of quiet enjoyment in a lease relates only to the possession of the leased premises, and is the contract of the landlord that during the term of the tenancy the lessee shall not be evicted. The covenant is only broken by entry and expulsion, nr by some actual disturbance of the tenant’s possession of the leased premises. (2) That to constitute a breach of this covenant there must be shown an eviction, actual or constructive, from the
The learned counsel for the defendant insists that the lease of the premises fronting on a street, for a drug store carries with it every right of ingress and egress and the easement of access which belonged to the property when leased; and that one of these rights was that of an unobstructed use of the street in front of the leased premises to the center thereof, for all purposes of access, ingress, and egress, subject to the easement of the public; and that the depriving of the defendant of the free and unobstructed use of the street in front of the leased premises for such purposes was in law an eviction of the defendant from a portion of the premises leased, and, while such eviction continued, the right to the rent was suspended. In determining these questions it will be necessary to ascertain the rights and the nature of the rights of the owner of property abutting upon a street or highway. At common law, the owner of property fronting upon a street or highway was presumed to be the owner of the soil and freehold to the center of such street or highway, incumbered only with the easement or right of passage in the public. 3 Kent, Comm. p. 432, and notes. This principle of the common law has become a part of the statute law of this state, (section 2783, Comp. Laws,) which provides that “An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.” And this principle has been also adopted in our state constitution, the last clause of section 13, art'. 6, providing that “the fee of land taken for railroad tracks or other highways shall remain in the owners, subject to the use for which it is taken.” In this case no evidence was given or offered upon the subject; hence we must presume that the plaintiffs were the owners of the soil and freehold to the center of the street, incumbered only
An abutting owner necessarily enjoys certain advantages from the existence of an open street adjoining his property which belong to him by reason of his location, and these rights are indispensable to the proper and beneficial enjoyment of the property. These advantages belong to and constitute a part of the property itself, and pass by deed or lease, unless specially reserved in the
In Upton v. Townsend, 84 E. C. L. 30, Jervis, Ld. C. J., says: “It is extremely difficult at the present day to define with technical accuracy what is an eviction. The word ‘eviction’ was formerly used to denote an expulsion by the assertion of a paramount title and by process of law. But that sort of an eviction is not necessary to constitute a suspension of the rent, because it is now well settled that, if the tenant loses the benefit of the enjoyment of any portion of the demised premises -by the act of the landlord, the rent is thereby suspended.” In Hoeveler v. Fleming, 91 Pa. St. 322, the supreme court of the state of Pennsylvania, speaking by Mr. Justice Paxson, says: “The modern doctrine as to what constitutes an eviction is that actual physical expulsion is not necessary,, but any interference with the tenant’s beneficial
We are clearly of the opinion that, both upon principle and authority, the acts of the plaintiffs in obstructing the street in front of the demised premises constituted an actual eviction of the defendant from an important part of the property leased, and during its continuance suspended the rent. Leishman v. White, 1 Allen, 489; Grundin v. Carter, 99 Mass. 15; Colburn v. Morrill, 117 Mass. 262; Christopher v. Austin, 11 N. Y. 216; Lawrence v. French, 25 Wend. 445; Dyett v. Pendleton, 8 Cow. 731; Hayner v. Smith, 63 Ill. 430. O.ur conclusions are that the instructions of the court stated the law correctly, and that the jury were fully warranted by the evidence in finding that the acts of the plaintiffs constituted an actual eviction of the defendant from a part of the demised premises, and that plaintiffs were therefore not entitled to rent for the three months during which the jury find the defendant had been so evicted. The judgment of the court below is therefore affirmed.