55 N.J. Eq. 741 | New York Court of Chancery | 1897
The ease is within such narrow limits that I think it may be readily passed upon now, quite as fully and safely as if further consideration be given to it.
The complainant files her bill and seeks to restrain the defendant from the removal of a back building which at present is detached, by severing from the front building, but still remains on her premises. The building came on the premises under these circumstances: The complainant was the owner of a lot in Atlantic City, on which there stood a frame structure, and her brother, the defendant, with her assent, entered into possession of the premises and the use of the same for a hardware store. The structure then on the premises consisted of a frame building thirty-two feet front, and running back on that width for some distance on the lot. The rear end of this structure had, as I gather from the testimony, an extension shed or lean-to, which covered part but not the entire height of the' rear end. That was the condition when the defendant entered into possession. After he had been there two years, without consulting the complainant or receiving any consent or direction from her, he took down the whole rear end of the original structure and removed it, putting up the shed or lean-to part, on some other property of the complainant, and it has thereafter remained in her possession and use. At the same time the defendant added to the original building the structure which is now in dispute. The addition was built on piles, which is the common mode of building in Atlantic City, where the water is so near the surface that unless an elevation is made around the cellar wall it is almost impossible to have a cellar; certainly below the depth of three feet it practically makes a cellar useless. Eor that reason, and because of the custom which seems to have obtained there, buildings were mostly built on wood piles driven into the ground.
Another element in the case indicates that this addition has become part of the realty, and that is the use for which the new building was erected, and its relation in this respect to the old one. The use for which the addition was made was a use which was wholly valueless without the continued use of the original structure. The whole building was used as a hardware store. The new erection was, in fact, an extension of the old one, and valuable only when used in connection with and as part of the original structure, making of both a complete hardware store. It was not such an addition as a bellows, or an anvil in a blacksmith shop, for use in carrying on a trade, it was made a part of the original structure itself, and it could not be used without it, nor could the original structure bé, after the change, used without the addition. This merger of the use of the two structures into one, whereby both were coincidently and dependently used for the same purpose, is an additional reason which leads me to conclude that the extension was made not as a trade fixture, but as an enlargement of the building then on the premises, thus becoming a part of the realty.
■ The question of intention is considered by the courts in many cases where the relation of the parties and the character of the structure leave the question open whether it is- a chattel, or a trade fixture, or has become a part of the realty. If the evidence is considered from this point of view there seems to be no
In my view, the addition was intended, at the time, to be a part of the realty, and, in fact, then became such. I am the more confirmed in this opinion because of the relationship between the parties — brother and sister — and the fact that the tenant paid no rent either during the two years before he made the addition or the many years since. His regard for his sister, his occupancy for two years rent free at the time he built the addition, and his expectation (since fulfilled) of continued gratuitous enjoyment of the premises, may well have led him to build the back building as an improvement to his sister’s premises.
Some doubt is suggested as to the jurisdiction of the court to grant an injunction to restrain the removal of the back building, and Hamilton v. Stewart, 59 Ill. 330, is cited to sustain the claim on the ground that the proposed removal is a mere trespass. In that case the party restrained was a stranger to the premises and out of possession. He claimed to be the owner of certain articles which the plaintiff alleged he intended to take away by force, or by a replevin suit. The court said that an injunction should not go to prevent a mere trespass, or to stay a suit at law to try the
Here the rights of the parties have been definitely ascertained, and it is shown that the proposed waste will be absolutely destructive of the premises for the uses for which they are most valuable. I speak now of their condition when the back building is removed and without giving any weight to the defendant’s statement that he intends to repair the damage he means to do by restoring the building to the condition it was in when he came into possession, which cannot be considered. Lord Hardwicke, in Farrant v. Lovell, 3 Atk. 723, held that waste in an under-lessee being shown, the ground landlord had the same equity as in other cases of injunction to stay waste. In Ware v. Ware, 2 Halst. Ch. 117, a tenant by the courtesy was restrained from cutting timber at the instance of the owner of the fee. Chancellor Kent, in Douglass v. Wiggins, 1 Johns. Ch. 435, allowed an injunction to restrain a tenant of a dwelling-house from converting it into a store. These allowances of the writ, I think, quite justify what is asked in this case. The tenant is put into possession by the landlord and thereby obtains control of the demised premises. His possession is that of his landlord. It is inequitable that he should be permitted so to use his possession as to destroy the landlord’s reversion, leaving him to an action of law for his remedy. On the question, then, of jurisdiction, the question presented is simply this: Has the court of chancery power to enjoin a tenant in possession from removing a portion of the real estate off the demised premises and thereby destroying them for their accustomed use ?
I do not think there ought to be any question that this court has in such cases full jurisdiction, and that the court ought, under such conditions, to issue a writ and restrain the removal.
There is also in the bill a suggestion as to a restoration of this
I will advise the issue of a perpetual injunction to restrain the defendant from removing the back building of the hardware store from the complainant’s premises.