48 A. 716 | Md. | 1901
The Evening News Publishing Company in 1897 owned an L shaped seven-story building in Baltimore City. One wing of the building was located at the southeast corner of Baltimore and Grant streets, and ran south on Grant street. The other wing extended from the south end of the one already mentioned, easterly to Calvert street, and was commonly known as No. 4 South Calvert street. The entire building was subsequently sold to the Evening News Building Company, but it will be sufficient for the purposes of this opinion to designate its owner as the News Company. *718
There were two elevators in the building. One was located at or near the middle of the south wall of No. 4 Calvert street, and could be entered from a passage extending east along the wall to the Calvert street entrance of the building. In this passage there was a stairway which was continued up to the seventh floor. Along the side of this stairway the passage to the elevator was about two and a half feet wide, but at the front door of the building it was six feet wide. The other elevator was placed near the junction of the two wings of the building and connected by passageways with both Baltimore and Grant streets. There was also a stairway in the Baltimore street wing of the building, extending to the seventh floor.
The News Company occupied the Baltimore street wing of the building for its own purposes, and rented the several floors of the Calvert street wing to various tenants, who currently used the elevator and stairway therein situated in common. On June 16th, 1897, the News Company leased to the appellee for the term of five years, from September 7th, 1897, certain rooms constituting the greater portion of the seventh or top floor of No. 4 Calvert street, "with elevator service," at an annual rent of $550, with privilege of renewal unless terminated by notice as provided in the lease. The use to which the demised floor could be applied was restricted by the lease to "a photo engraving business," and the lessee was prohibited from assigning the term without the written assent of the lessor. There was no mention of stairways in the lease, nor did it designate by which elevator the elevator service stipulated for was to be rendered. The leased premises were accessible by both of the elevators and stairways, but were more conveniently reached by the elevator and stairway located in No. 4 Calvert street, which were currently used by the lessee until the making of the repairs hereinafter mentioned.
On December 1st, 1898, the News Company leased for twelve years at a rent of $6,500 per annum to the appellant Callaghan, for the purpose of a hotel and restaurant, the *719 whole of No. 4 Calvert street, "subject to the existing lease of the seventh floor to the Baltimore Engraving Company for a term of five years," from September 1st, 1897. Callaghan's lease from the News Company required him to keep the elevator in that part of the building in good order, and to supply to the Engraving Company, so long as it continued to occupy the seventh floor, the elevator service stipulated for in its lease. He covenanted in his lease to commence immediately and to complete within four months, the conversion of the portion of the building leased to him into a first class hotel and restaurant, and he made the change in the building called for by his covenant at a cost to him of over $30,000.
Before Callaghan began the alterations in the building, the president of the appellee called upon him and suggested the undesirability to a hotel of having the photo engraving business carried on over its head. This interview resulted in negotiations between them for the purchase by Callaghan of the unexpired portion of the appellee's lease of the seventh floor. The negotiations continued for about a month, during which time the alterations in the building were actively carried on, and early in February the parties had so nearly come to terms that an agreement was drawn by counsel for the assignment of the unexpired term to Callaghan, but the scheme finally fell through. During the making of the alterations the appellee was much incommoded by the dirt and disorder in the lower floors of the building, and was, for sometime, while the elevator in its part of the building was being repaired, compelled to use the other elevator and the stairway in the News portion of the building at some inconvenience to its officers, employees and patrons, and it suffered some loss of business therefrom. The evidence is very conflicting as to the nature and extent of the complaint or objection made by the appellee to the appellants or either of them in reference to the inconvenience or damage caused to it by the alterations while they were being made, but it appears that on January 27th, 1899, the appellee,s attorney wrote to Callaghan that it had suffered material damage from the manner in which the building was being improved, *720 and that it was advised that its rights could be "enforced by injunction," but it "was unwilling to engage in litigation unless as the last means of protecting its rights." Callaghan did not reply to the letter, and the appellant did not then resort to litigation.
When the alterations of No. 4 Calvert street were completed, the lower stories of the building were greatly improved and beautified, but the access to the elevator in that building by means of the passageway on the first floor was cut off, although the elevator could be reached either by going through the cafe in which were situated the bar and lunch counter, or through the reading room in the front of No. 6 Calvert street, or through the area on the north side of No. 4 Calvert street. These new approaches to the elevator were, with the exception of the one through the cafe or bar-room of the hotel, not so direct nor in some respects so convenient as the former one through the passageway of the building before its alteration, but they were such as could be used without serious inconvenience. Soon after the completion of the alterations in No. 4 Calvert street, the hotel started business and Callaghan then fastened the door to the stairway between the sixth and seventh floors and thus compelled the appellee, when desiring to use a stairway to resort to the less convenient one in the Baltimore street building. Callaghan in making the alterations had also erected an iron fire escape leading from the top of the building to an area opening into Calvert street, which would have been available to the occupants of the seventh floor as a means of exit in a case of emergency.
At the time the lease to the appellee was made, the other floors of No. 4 Calvert street were occupied by different tenants, and sometime after the appellee began to occupy the premises a directory-board was put up on the wall of the hallway inside of the Calvert street entrance upon which were placed the names and occupations of the several tenants and the portions of the building occupied by them. During the alterations of the building after the lease to Callaghan, this board was torn down and never replaced. *721
On April 21st, 1899, when the alterations in No. 4 Calvert street had been practically completed the appellee filed its original bill against Callaghan and the News Building and Publishing Companies, and on November 11th, 1899, by an amended bill it brought in the Maryland Hotel Company as the assignee of Callaghan's lease. The two News Companies demurred to the original bill, but their demurrer was overruled, and all of the defendants answered the bills.
The bills of complaint set up title to the seventh floor of No. 4 Calvert street in the appellee under the lease from the News Company of June 16th, 1897, which is filed as one of the plaintiffs exhibits and claimed that under it the appellee was entitled, in addition to elevator service, to use in common with all the tenants of the building the stairs and also the hallway, having its entrance on Calvert street in its original condition which permitted access through it on the first floor to the elevator. The bills recited at length the transactions which we have already mentioned and asserted that the appellee had been irreparably injured by the removal of the directory board from the hallway and by the changes made in the hallway, shutting off access through it, to the elevator on the first floor and prayed that the defendants might be enjoined from obstructing its access to its leased apartments by means of the stairway leading to the Calvert street entrance, and that they might be compelled by a mandatory injunction to furnish the appellee unobstructed transportation and services on the elevator in the Calvert street building, and also the use of the stairway therein and that they might also by mandatory injunction be required to restore to its original condition the hallway from the Calvert street entrance to the elevator.
The answers admitted the lease of the seventh floor to the appellee by the News Company, but Callaghan denied that by the terms of the lease the appellee acquired any right to the stairway or to maintain a sign in the hallway of the first floor near the Calvert street entrance. The answers of all the defendants insisted that the appellee had at all times been furnished with elevator service and had always been permitted to *722 use one of the two stairways, and that service had been furnished it by the elevator in the Calvert street building during the entire time, except when it was being repaired. The answers also denied that the appellee had in fact suffered any irreparable damage by reason of the matters complained of in its bill, and Callaghan's answer strongly insisted that to grant the prayer of the bill would do him irreparable and incalcuble injury as he had expended over $30,000 in altering the building to adapt it to the uses of the hotel and restaurant which were being successfully conducted therein.
A large amount of conflicting testimony, covering over three hundred pages of the record, was taken touching the matters of which we have already stated the substance. After the hearing of the case the Circuit Court passed a decree directing, among other things, that a mandatory injunction issue requiring the defendant, the Maryland Hotel Company, to provide within sixty days at its own expense for the use of the appellee its servants and customers "a private entrance and a way at least four feet wide and of the height of the first floor, and properly lighted by natural or artificial means, from an entrance to the said building on South Calvert street to the elevator shaft which shall be so enclosed," c., c., or in default thereof to restore the hallway on the first floor of the Calvert street building to its original condition prior to the time of the lease of that building to Callaghan. The decree also declared the appellee to be entitled to an inquiry as to what, if any damages, were due it from the defendant or either of them for the grievances complained of in the bill. All of the defendants appealed from the decree.
The Maryland Hotel Company made an application, which was denied by the Court, for the modification of some of the terms of the decree but as we have concluded that the decree itself must be reversed we deem it unnecessary to notice the subsequent application.
A careful examination of the voluminous record in this appeal has brought us to the conclusion that the case was not a proper one for the interposition of a Court of equity, still *723 less for the issue of the mandatory injunction authorized by the decree appealed from.
The appellee's rights in or claims upon the premises affected by the decree appealed from must be measured by the terms of its lease of June 16th, 1897. That instrument upon its face gives the appellee no claim whatever upon the lower six floors of the building except such as may be implied from the use of the expression "with elevator service" used in renting the seventh floor. The lease does not specify the elevator by which the service is to be rendered or define the extent or character of the service, nor does it mention or allude to stairways, passageways, directory or signs.
In Aspdin v. Austin, 5 Ad. Ellis, 682, LORD DENMAN said: "Where parties have entered into written engagements with express stipulations it is manifestly not desirable to extend them by implications, the presumption is that having expressed some they have expressed all the conditions. * * * It is one thing for the Court to effectuate the intention of the parties to the extent to which they may have even imperfectly expressed themselves, and another to add to the instrument all such covenants as upon a full consideration the Court may deem fitting for completing the intention of the parties but which they either purposely or unintentionally have omitted. The former is but the application of a rule of construction to that which is written; the latter adds to the obligations by which the parties have bound themselves and is of course quite unauthorized as well as liable to great practical injustice in the application." This Court inMoyer v. Mitchel,
Under its lease the appellee could only ask for such service as was consistent with the use in common of the elevators by the tenants of all of the floors through which they passed. Assuming from the location of the two elevators that the one near the centre of the Calvert street building was the one primarily *724 intended to furnish the service called for, the lease is still entirely silent as to the route or means of access to the elevator from Calvert street. No implied covenant arises from the lease, that the subdivision of the ground floor of the building should always remain the same as it was when the lease was made. The News Company having made the lease of the rooms on the seventh floor to the appellee had the undoubted right to lease the other portions of the building to Callaghan and he could adapt them to any lawful use so long as he permitted reasonably convenient access to the elevator by the appellee its servants and patrons.
The fact that the lease to the appellee provides for elevator service, but is entirely silent as to stairways, affords some ground for the presumption that the lessee was intended to use the former and not the latter means of access to and egress from the demised floor, but assuming that the letting implied the right to use a stairway, the record does not show that the appellee was at any time entirely deprived of the use of a stairway although it does show that it was inconvenienced and possibly injured by the fastening of the door to the Calvert street stairway.
As we have already said, the lease contained no provision authorizing the appellee to erect a sign in the hallway of the first floor and the evidence as to the existence of an independent or collateral verbal agreement on that subject is conflicting and unsatisfactory, and we therefore do not think that the removal of the directory board from the hall in the alterations made to the lower part of the house afforded the appellee adequate grounds for equitable relief.
The transactions on the part of the defendants complained of in the bill may have put the appellee to serious inconvenience at times and may have caused it loss for which it has a right of action at law against the defendants or some of them, but those transactions did not amount to a destruction or a serious obstruction of any privilege or easement to which the appellee had a clear right, and therefore they did not constitute injuries for which adequate compensation cannot *725
be obtained by an action of law. Welde v. Scotten,
Furthermore the conduct of Hoblitzel and his son, who are the owners of almost the entire capital stock of the appellee, in approaching Callaghan on the eve of the commencement of the alterations to the building and then negotiating with him for a sale to him of the appellee's unexpired term, for a month or more while the work on the building was in active operation without making any definite or positive objection thereto, would disincline a Court of equity to interfere on its behalf even if the case in other respects afforded proper ground for such interference.
To compel the Hotel Company to tear down and destroy the costly improvements which it made while the appellee thus stood by would operate oppressively upon that company. It is well settled that the granting or refusing an in junction is always a matter resting in the sound discretion of the Court and it ought not to be granted when it woud-operate oppressively or unjustly. B. O.R.R. v. Strauss,
In reversing the decree in this case we do not mean to prejudice the right of the appellee to institute or maintain an action at law against the defendants in respect to the matters complained of in the bill in which event the question of the fact and extent of the injury which it claims to have suffered will be open to determination by another tribunal.
The decree appealed from will be reversed with costs, but without prejudice to the right of the appellee to sue at law and the case will be remanded for further proceedings by the Court below under the Act of 1896, ch. 229.
Decree reversed with costs and case remanded.
(Decided February 20th, 1901.) *726
