Godfrey v. Black

39 Kan. 193 | Kan. | 1888

The opinion of the court was delivered by

Johnston, J.:

We see no reason to disturb the order granting the temporary injunction. The building in question was' constructed for use as a first-class hotel, was rented for that' purpose, and it was expressly specified in the lease that the lessee should not sublet the premises or permit anyone else to occupy the same without the consent in writing of the lessor having been first obtained. In direct violation of the terms of the lease, Roberts Brothers sublet a portion of the hotel office, to be used by Godfrey in carrying on a business inconsistent with the hotel business, and which the testimony says detracts from the reputation and popularity of the house. They had no right to sublet or permit the hotel to be used by Godfrey, and he acquired no right by the agreement made with them.

2. For bidden use, remedy to prevent. 1. Injunction to authorised use Of premises. 3. Injunction—insufficient grounds for withholding. It is claimed that injunction is not the proper remedy in such case, and actions to recover possession and to recover damages for trespass, where the defendants could have the issues submitted to a jury, are suggested. The lessor is not confined to these remedies, nor are they adequate. He has a right to insist that the covenants of the , , , lease shall be observed, and that the premises shall be used only for the purposes agreed upon. It does not appear that the lease was to terminate upon a breach of the covenants; but even if the lessor had a right to reenter, that would not preclude him from obtaining equitable relief to prevent a forbidden use 'of the premises. Presumably, the continuance of the lease for the full term is beneficial to the lessor, and he is entitled to a performance in accordance with the contract made. Upon this ground the mere reentry is held to be an inadequate remedy, as it "does not leave the lessor in as good a position as the enforcement of performance by the tenant would leave him in. Bodwell v. Crawford, 26 Kas. 292, is cited as an authority against maintaining the action. The two cases are very dissimilar. Theré, no contractual relation existed between the parties, and the possession of the premises by the defendant was wholly unauthorized. In giving the opinion in that case, the writer carefully distinguished it from those like the present one, holding that injunction to restrain parties from putting leased property to a use not authorized by the lease could be maintained. In speaking of a reentry by the landlord, it was there remarked: “ True, he may perhaps declare the lease forfeited and recover the property, but he may not desire to do this; he may not be able to lease for the same rent or to an equally responsible tenant, and the lessee ought not to be permitted to compel the lessor either to take back the property or tolerate a forbidden use.” (Stees v. Kranz, 32 Minn. 313; High Inj., §§ 1138, 1144.) Neither is the right of the lessor to bring an action to recover coin- ° pensatory damages for the trespass a sufficient groim(j for withholding the remedy of injunction. Equitable relief may be properly extended in some cases against trespass. An action at law against the trespasser here, wonl'd not be an adequate remedy. A new cause of action would arise every day for the constantly-recurring grievance which would lead to a multiplicity of suits, and the necessity of preventing these is an exception which warrants the exercise of the equitable jurisdiction of the court. Besides, the lessor has a right to insist upon his-property being used in the manner fixed by agreement in the lease; and the testimony tends to show that the carrying on of the real-estate business in the office of the hotel will deteriorate its value and seriously injure the hotel; and in such cases equity will interfere to restrain the continuance of the injury. (High Inj., § 1142; Steward v. Winters, 4 Sandf. Ch. 587; Macher v. Foundling Hospital, 1 Ves. & Bes. 188; Stees v. Kranz, 32 Minn. 313.)

Under the pleadings and the proofs, the temporary injunction was properly allowed, and the order granting it will be affirmed.

All the Justices concurring.