145 Mass. 1 | Mass. | 1887
We think that the outside of the front wall was part of the premises demised in the lease of the first floor in
The words “ first floor ” in the building, are equivalent to “ first story ” of the building, and naturally include the walls. The apparent intention is to separate a section of the building as a distinct tenement. The words “first floor” define the lower and upper boundaries of this, but there is nothing to fix the lateral boundaries except the boundaries of the building. In this respect the words differ somewhat from the word “room.” “Floor” means a section of the building between horizontal planes. The words “ in building” show that the section is of the whole building, and not of a part of it. The word “room” includes a description of the perpendicular as well as of the horizontal planes which bound the parcel of the house described by it, and excludes the oytside of lateral walls, at least when they constitute the walls of another room, as clearly as the words “first floor ” exclude the flooring of the story above it. Under what circumstances a lease of a story of a building would include a space beyond the building over land belonging to it, need not be considered. In this case, the building adjoins the sidewalk, and the words “first floor in building” must be held to include the entire front wall of that part of the building, unless there is something to control the natural meaning of the language.
That the outside of the front wall would be valuable to the lessee as part of the premises, and that the lease gives him the
In Stockwell v. Hunter, 11 Met. 448, and in Shawmut Bank v. Boston, 118 Mass. 125, it was held that the land under a building would not pass as parcel of the premises in a lease of the basement of a building, the upper stories of which were let to other tenants. In the first case, Mr. Justice Dewey said: “ The proper construction of such a lease as the present, as it seems to us, is, that the lessee’s right of occupation of the land is an interest, for the time being, defeasible by the destruction of the building by fire.” 11 Met. 456. In the latter case, Mr. Justice Morton said: “ The real question is whether the intention of the parties, to be collected from the whole lease, was to grant to the lessees any estate in the land itself. As we have seen, the lease does not in terms grant any estate in the land..... In cases where different rooms in the same building are leased to separate tenants, the situation of the property and the nature of the tenures exclude the idea that each tenant takes an estate for years in the land. Such estates existing at the same time in different tenants are inconsistent and impossible.....The bank and Lawrence cannot both take an estate for years of the same land.” 118 Mass. 129, 130.
In the case at bar, the words of description naturally include the premises in question, the outer walls. It is plain that the lease grants not merely an interest in the walls, like the incidental right of support or shelter which it grants in the land and other parts of the house, but the right to use and enjoy, as leased premises, for the purposes of business. That right is exclusive. The landlord has no right to use or to let it for such
There is nothing in the particular provisions of the lease that bears with much force upon the question. The covenant of the lessee to repair is what would be expected, whether the outside of the wall were included or not, unless the suggestion is entitled to some weight, that, if the outer surface of the wall was not
We find no authority against the conclusion we have reached. Pevey v. Skinner, 116 Mass. 129, decided that, where different rooms in a building were let to different tenants, a license by the owner of the building to the tenant of a lower room to place his sign on the outer wall of the building extending fifteen inches higher than the floor of the room above, was not revoked by a lease of the room above, which contained the provision that “ the lessee may have the right to place signs upon the outer wall of said rooms.” The general right in the outer wall of the lessee of a single room was not considered. The court said, “ His right to use the outer surface of the wall was defined, and thereby limited, by the terms of the lease.” The decision can have very little bearing upon the lease of a “ floor,” which does not define and limit the right to use the outer wall.
Riddle v. Littlefield, 53 N. H. 503, and Baldwin v. Morgan, 43 Hun, 355, are directly in favor of our conclusion.
It is contended that the agreement of the defendant to allow the sign of a stranger, in consideration of an annual payment by him, to remain upon the outside wall demised, was a breach of the covenant in the lease not to underlet any part of the premises. But this was a license, and not a lease. It was permission to do a particular act, namely, to affix a sign to the wall, and gave no authority to do any other act upon the premises. The fact that the permission was paid for, and that the act permitted was a continuing one, are ordinary elements of a license. Every license to do an act upon land involves the exclusive occupation of the land by the licensee, so far as is necessary to do the act, and no further.' A lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms. It is clear in this case that the intention was that the licensee should have no other right in the premises than to affix his sign to them, and that every other right should remain in the defendant. An agreement of this nature cannot be construed as a lease; it must create either a license or an easement.
In Pevey v. Skinner, ubi supra, it was said that permitting a sign to be kept upon the wall for a long time would imply a license, but it was not intimated that it would imply a lease of the outer surface. We have not been referred to any case in which the question here presented, or any closely resembling it, has arisen. Numerous cases have arisen in England where the question was whether persons occupying land under particular agreements were liable to be rated as occupiers. See Cory v. Bristow, 2 App. Cas. 262; Electric Telegraph Co. v. Overseers of Salford, 11 Exch. 181; Lancaster Telephone Co. v. Overseers of Manchester, 14 Q. B. D. 267; Watkins v. Overseers of Milton-next-Gravesend, L. R. 3 Q. B. 350; Forrest v. Overseers of Greenwich, 8 E. & B. 890.
In Selby v. Greaves, L. R. 3 C. P. 594, the letting of a defined portion of a room in a factory with steam-power for working lace machines was held to be a demise; and in Hancock v. Austin, 14 C. B. (N. S.) 634, permission to place lace machines in a room
Judgments affirmed.