43 N.J. Eq. 342 | New York Court of Chancery | 1887
This is an application for an injunction. The complainant and defendant occupy parts of the same building as tenants under the same landlord. The defendant occupies the basement as a barber-shop, and the complainant occupies the two floors immediately above. The complainant is a clothier. He uses the first floor as a store for the sale of clothing and the second for cutting garments. The defendant has occupied the basement continuously for over twenty-five years, and the complainant has held the two floors now occupied by him since April, 1879. Prior to the commencement of the complainant’s tenancy, the owner of the building put a heater in the cellar, in the rear of the basement occupied by the defendant. Pipes were attached to conduct the heat from the heater to the first floor, and subsequently others were attached to conduct it to the second floor. There are registers on both floors by which the volume of heat transmitted to each is regulated. This connection existed in
Both parties now hold under leases made in 1887. That to the complainant was executed on the 5th of January, 1887, and grants a term of five years from the 1st day of April, 1887, and that to the defendant was made in March, 1887. The complainant’s lease grants him the use of the heater with right of access to it. The defendant, by his answer, admits that the complainant has no means of access to the heater, except through his shop, and also that the complainant hasj every fall and winter since 1879, passed through his shop, with his knowledge and without objection, to give such attention to the heater as it required. Whether there is a door opening from the defendant’s shop into the cellar where the heater is, the pleadings do not expressly state, but the defendant’s admission, that there is no way of approach to the heater except through his shop, makes it certain that there is either a door there, or
It cannot be denied, that unless the complainant can have access to the heater, through the defendant’s shop, that that clause of his lease, which grants him the use of the heater, will be rendered nugatory, and that he will be deprived of that part of the demised premises, which, just at this season of the year, is absolutely essential to the safe and comfortable enjoyment of the other parts. No complaint is made that the complainant has exercised the right which he claims in an oppressive or improper manner. • The dispute is as to his right, not as to the manner in which he has exercised it. If the complainant were seeking protection against the wrongful pfohibition of his lessor, there can be no
Does the defendant stand in a stronger or better position than his lessor would occupy if he were the defendant in this suit ? The complainant’s lease is first in date, and therefore, so far as it covers rights or property subsequently demised to the defendant, confers the paramount right. The lessor, after having made a lease to the complainant, could not grant anything to the defendant which he had previously granted to the complainant. In other words, if, by the lease made to the complainant in January, 1887, a right of access to the heater through the basement passed, the lessor could not, by a subsequent lease made to the defendant,
On the admitted facts of the case, and according to well-established legal principles, the legal right on which the complainant rests his claim to an injunction is, in my judgment, free from the least doubt. This being so, the duty of the court is plain. It is bound to give to the complainant the protection he asks, if the injury against which he seeks protection belongs to the class which this court may rightfully restrain by injunction.' A court •of equity may protect and enforce legal rights in real estate, where the right, though formally denied, is yet clear on facts which are not denied, and according to legal- rules which are well settled, and the injury against which protection is asked is of an irreparable nature. Hart v. Leonard, 15 Stew. Eq. 416.
It is obvious that no remedy will be adequate in this case which does not prevent a repetition of the injury. The injury consists in depriving the complainant of an essential part of the demised premises. It is continuous in its character and, so long as it shall be persisted in, will necessarily result in the complete destruction of the safe and comfortable use of the demised premises, for the purposes for which they were rented, for nearly one-half of the complainant’s whole term. The law gives no adequate remedy for such a wrong. Successive suits at law, in which only pecuniary damages could be awarded, would give the complainant neither the full measure of his rights, nor justice, but would permit the defendant to deprive the complainant of his rights for such compensation as a jury might see fit to award. The complainant’s case presents a strong instance of irreparable injury. All that is meant by that phrase is that the injury shall be a material one, and of such a nature as cannot be adequately redressed by pecuniary damages. Mere inconvenience, resulting in but slight damage, may, in consequence of its peculiar char.acter, constitute an injury so irreparable in its nature as to be the ■proper subject of redress by injunction. Kerr on Inj. 199, WO. The right involved here is an easement. The complainant, on the undisputed facts of the case, has a right to pass
The complainant is entitled to the writ he asks, but it must be .so framed as to limit the exercise of his right of passage, to such use of it as may be necessary, to give such care and attention to the heater as shall be required to enable him to have the use of the heater for the purpose of heating the two floors covered by his lease.