84 Pa. Super. 358 | Pa. Super. Ct. | 1924
Argued October 15, 1924.
The defendant filed an affidavit of defense in the nature of a demurrer to the claim of the plaintiffs on which state of pleadings judgment was entered in favor of the defendant, and from that action this appeal was taken. The defendant was the owner of a three-story brick building at the northeast corner of 8th and Filbert streets in Philadelphia which he had acquired on January 27, 1920, by conveyance from Maurice A. Lieberman and others. Prior to this date, Lieberman and the other owners of the building had leased a part of it to the plaintiffs, which lease the lessors transferred to the defendant when he purchased the property from them. *360
By this lease the plaintiffs became the tenants of "all that certain southern or corner portion of the store and basement of premises situate and known as the northeast corner of 8th and Filbert streets, for and during a period of six years and three months from the first day of March, 1918." The premises thus leased constituted the southern part of the first floor and the basement thereunder. The front of this room was on 8th Street. It is averred in the statement of claim as the cause of action that "the said defendant did on or about the first day of February, A.D. 1920, seize and possess himself of the southern wall and sidewalk of the said store for his own separate use and behalf, and having seized and possessed himself of the said southern wall and southern sidewalk continued in occupation and enjoyed the benefit thereof from that date to the date when the action was brought — a period of about forty-three months." It was further averred that the defendant leased to a third person the privilege of conducting a lunch counter and stand for the sale of cigars, confectionery, soft drinks, etc., on the sidewalk on the Filbert Street side of the said building, and that he received a monthly rental of $50 therefor during the time above stated. The plaintiffs' assertion in the statement of claim and their present contention is that in leasing the room described they acquired the exclusive right to the use of the outside wall of the building and the sidewalk adjacent thereto; that the act of the defendant giving the permission complained of was disseisin pro tanto, and that they are entitled to recover from the defendant the amount which he had received from the occupant of the stand. It is not alleged that there was an entrance to the demised room from the Filbert Street side; on the contrary it appears in the discussion of the case that that was a blank wall; nor is it alleged that the enjoyment by the tenants of the leased room was interfered with or impaired. The case rests on the implication that by acquiring a term in the southern portion of the first floor *361
of the building, the tenants acquired possession of the exterior of the southern wall and the sidewalk. The learned trial court held in a convincing opinion that the contract does not support that construction, and we are in accord with that conclusion. It is not made to appear that the outside of the wall and the sidewalk were necessary to the beneficial enjoyment of the demised property for the purpose for which it was leased. The tenants carried on a shoe repair shop and their customers necessarily entered the premises from 8th Street. There was not anything in the nature of the plaintiffs' business or of the relation of the room they occupied to the building and the adjacent streets from which it would be manifest that from such condition and situation the outside of the wall and the sidewalk had been appropriated for the benefit of the room leased. There were other tenants in the building who were interested in the south wall to the same extent as were the plaintiffs, inasmuch as the wall necessarily supported the second and third floors. The other tenant on the first floor was interested in the existence of the south wall, but the interest of neither of these tenants extended to the surface of the exterior walls and particularly not to the sidewalk. The plaintiffs' lease prohibited the use of the walls for the purpose of exhibiting signs and this is the only use to which the exterior could have been applied for there was a prohibition against subletting. We regard it as the law settled by a strong preponderance of authority that a lease of distinct rooms in a building does not carry an interest in the land beyond that connected with the enjoyment of the particular room; that the room was the thing leased and that the destruction of the building would necessarily terminate the lessee's interest therein. This is the law as declared in Shawmut National Bank v. City of Boston,
We deem it unnecessary to enter into a consideration of the ability of the appellants to maintain the action of assumpsit if any cause of action exists. They allege a trespass and disseisin by the plaintiffs and it would be difficult to sustain the contention that assumpsit will lie on the facts alleged. We prefer however to rest the case on the ground stated in the opinion of the learned trial judge.
The judgment is affirmed.