221 Mass. 579 | Mass. | 1915
On April 16, 1908, the plaintiff as lessee and the defendants Dunbar and Hammond as lessors executed a lease for the term of three years of “all the second floor of the building at the corner of Essex Street and Harrison Avenue in the city of Boston, numbered 41 Essex Street, except the room now occupied by M. Wade.” At that time the main entrance to the demised premises was numbered 41 on Essex Street, although there was a rear entrance on Harrison Avenue, narrow and inferior compared with the other, used chiefly but not exclusively for the receipt and delivery of merchandise. The building which bore the number 37 on Essex Street belonged to different legal and equitable owners from that numbered 41, although certain of the legal owners were the same, and the defendant Dunbar, an owner in each estate, apparently had full charge of both estates. In December, 1908, the lessors of the plaintiff, conceiving that the space occupied by the doorway and stairs at number 41 Essex Street was too valuable to be used longer for that purpose, removed the stairs and door and by opening a doorway in a partition wall connected the plaintiff’s premises with a different stair and doorway opening at number 37 Essex Street. Thus the" plaintiff was deprived of the means of ingress and egress existing at the time of the execution of the lease, and another more convenient and attractive was afforded, which was not over land owned exclusively by his lessors. While nothing was said about any use of the new way, it was the purpose of his lessors to lead the plaintiff as lessee to believe that it was for his use in substitution for the old, and he silently accepted the tacit proposal of his lessors that, if he would permit the destruction of the old way, he should
A decree was entered in the Superior Court dismissing the bill with costs as to the defendant Wirth and in effect dismissing so much of it as seeks to have the entrance at number 41 Essex Street restored and the doorway in the partition wall reopened upon the plaintiff’s giving bond to pay arrears of rent, but enjoining the lessors from evicting him and retaining the bill for the assessment of damages. No appeal has been taken from the finding in favor of the defendant Wirth, and therefore he is exonerated from liability to the plaintiff.
This narration of the material facts as found by the Superior Court shows that the lessors have so conducted themselves with reference to a reasonable means of access to the demised premises from Essex Street as to be estopped from denying its existence.
Whether the description in the lease by construction might be held to mean a reference to the stairway actually used in connection with the premises need not be considered. See Cowen v. Truefitt, Ltd. [1899] 2 Ch. 309. However that may be, the conditions are such as to estop the lessors from setting up the title to the Essex Street means of access in another.
The lessors rely upon Howe v. Alger, 4 Allen, 206, Cole v. Hadley, 162 Mass. 579, and like cases where it is held that in a deed a description of granted premises as bounding upon a street is not a grant of a right of way in the street when the grantor owns no right in such street. Those cases are distinguishable. In the case at bar the relations and conduct of the parties for a considerable period of time constituted a construction of the lease which prevents the lessors from asserting now a different construction.
The facts show a partial eviction. McCall v. New York Life Ins. Co. 201 Mass. 223. Nesson v. Adams, 212 Mass. 429. Boston Veterinary Hospital v. Kiley, 219 Mass. 533. The premises are no longer suitable for the purpose for which they were hired. Baynes v. Stevens, 219 Mass. 556, is unlike the case at bar. But the lease was not thereby necessarily determined and it is not essential that the tenant should abandon the entire premises before seeking relief in equity. Smith v. McEnany, 170 Mass. 26. Leishman v. White, 1 Allen, 489. Colburn v. Morrill, 117 Mass. 262.
Decree affirmed with costs.