325 Mass. 33 | Mass. | 1949
This is an appeal from a final decree dismissing a bill in equity alleging various grounds for relief but now restricted by the plaintiff to seeking damages and a permanent injunction to restrain the defendants from occupying a portion of a cellar in maintaining a grocery store which the defendants conduct upon premises owned by the plaintiff. The plaintiff contends that the defendants use and occupy such portion of the cellar without any right or authority.
The facts found by the judge and which we ourselves find are now recited. The plaintiff owns a two and one half story house, with a cellar underneath, which was designed and occupied as two tenements. Some years ago a two and one half story addition was erected extending the front of the house to the street. The first floor was occupied as a store and over it was another tenement. The floor of the store was about a foot above the street level, and in the rear of the store was a door which led down one step into the cellar or basement. A partition running lengthwise of the cellar divided it into two parts. The only door leading to the cellar from the outside was located in the front part of the cellar. Apart from the store, no tenant had any access to the cellar from the inside of the structure except the tenant on the first floor, and he had access only to the
The demised premises were described in the lease in these words: j'The store formerly occupied by me as a grocery store and the contents of which has this day been conveyed to the lessees, located at #86 Broad Street in said Marlborough.” |,The question is whether the parties
The parties to the lease contemplated the continuance of the plaintiff’s grocery business by the defendants. The bill of sale expressly conveyed the good will and an option to sell the business back to the plaintiff if, during the term of the lease, the defendants desired to sell and if their son did not wish to purchase it. The same business was to be carried on by the defendants at the old site of the business. The site was that which had been occupied by the plaintiff when she conducted the store. All parties were familiar with the extent and bounds of the premises that had been used for the purposes of maintaining the store. Furthermore, the physical arrangement of the property itself shows that the front part of the cellar was designed to be used in conjunction with the grocery business. Houghton v. Moore, 141 Mass. 437, 439. Nowhere in the evidence is there a suggestion that the door from the store to this part of the cellar was not intended for access from the store to the cellar, or that the defendants were not entitled to use this door, or that it was ever locked. In the next place, the plaintiff acquiesced in the use of the cellar by the defendants, and she or her husband sought and secured permission from the defendants when it became necessary for them to enter the front part of the cellar where a water meter and shut-off were located in the service pipe which furnished water to the entire premises. The practical construction of the lease by the parties is persuasive evidence as to what they intended by the description contained in the lease. New York Central Railroad v. Stoneman, 233 Mass. 258, 263. Crowe v. Bixby, 237 Mass. 249, 253. Ovans v. Castrucci, 267 Mass. 600, 605. It is true that the lease makes no mention of the cellar. The lease must be construed as of the time of its
As we are of opinion that the front portion of the cellar was included within the description of the demised premises appearing in the lease, we need not decide the conflicting contentions as to whether or not this portion of the cellar passed as an appurtenance to the store.
Decree affirmed with costs.