81 Ind. App. 355 | Ind. Ct. App. | 1923
This action in ejectment was by appellant against appellees, all of whom other than appellee Joseph, hereinafter mentioned as appellee, have no interest in this action and will not be further mentioned.
As there were special findings of fact, and as no question is presented as to the pleadings, we do not need to set them out.
The findings of fact are in substance, so far as here involved, that: Appellant was the owner of the real estate here involved and on March 16, 1903, by written lease rented the same to Andrew S. Clements and Frank C. Evans for five years. Said lease contained a provision that in the event the windows then existing in the north wall of said premises should be closed up or rendered useless, or the light obstructed, then the lessees would have the right to terminate the lease without becoming liable for damages on account thereof, and the failure of said parties to exercise such option should not be deemed a waiver on their part. Said lessees were to have the right to sublet all or any part of the premises described in said lease, and to make alterations and additions to the interior of said room with the right to remove such alterations or additions at the expiration of said lease. Pursuant to said lease, the said lessees took possession of the real estate at the time specified therein. On June 6, 1907, Clements purchased the interest of Evans in the partnership and became the sole owner thereof, and operated said business as the Clements Company; the said Evans assigned all his right, title and interest in said lease to said Clements, who remained in possession for the five-year period named in said lease, and continued to hold the same without any new contract until June 15, 1914, when
On these findings of fact, the court stated its conclusion of law No. 1 that the contract in question was binding upon appellant and appellee, who was entitled to hold possession of the premises in question, and that, on this issue, the judgment should be against appellant; and its conclusion No. 3, that appellee had no right to cut an opening into the north wall of the room, and that appellant was entitled to recover $94 damages sustained by reason of such opening. That appellee had no right to sell the door of the vault, and, for this, appellant was entitled to recover $25; that appellee had no right to remove the vault, and that appellant was entitled to recover from him, because of such removal, $300, making the total amount of recovery for changes in the building in favor of appellant, $419. Judgment was rendered upon these conclusions, from which judgment this appeal is prosecuted, appellant assigning as error the action of the court in overruling her motion for a new trial, and in stating its conclusion of law No. 1. Appellee has assigned cross-error upon the court’s conclusion No. 3.
Appellant says that the question which she intends to present by this appeal is the validity of the lease entered into between appellant and Clements on June 15, 1914. This question is presented by the special findings and conclusions of law, and we, therefore, give no attention to the motion for a new trial. Appellee is holding possession of the real estate described in such lease by virtue of the assignment of the same to him. Appellant challenges the validity of the lease because of the provision therein
We hold that the lease of June 15, 1914, was a valid instrument, and that appellee was, at the time of the commencement of this action, rightfully in possession of the real estate described therein, by virtue of the assignment thereof to him.
It was expressly provided in the first lease, as well as in the second, that the lessee should have the right to make alterations and additions to the interior of the room rented and to remove such alterations or additions at the expiration of the lease. Sometime within the five-year term of the first lease, the lessee constructed the vault involved in this action and continued to use the same during the entire time and until the date of the termination of the lease, and, thereafter holding over, he continued to use the same from year to year until June 15, 1914, more than six years after the termination of the first lease, at which time, he entered into a new contract or lease for fifteen years with appellant which, as aforesaid, was thereafter assigned to appellee.
It is to be observed that the lessee had a right to remove the vault which he had constructed as an alteration or' addition to the room rented, at the termination of his lease. Holding over without any new contract, he became á tenant from year to year. Whether his rights, including the right to remove the vault, were determined by the terms of the original lease except as to time we do not need to decide, but see Habich v. University Park Bldg. Co. (1912), 177 Ind. 193, 97 N. E. 539; Ridgeway v. Hannum (1902), 29 Ind. App. 124, 64 N. E. 44. We have now, however, a new lease, not by virtue of any rights reserved in the original lease,
Appellee does not contend that he had a right to remove improvements made under the former lease. He makes no point that he had a right to remove the vault or to make the opening in the wall. His sole and only contention is that the lease gave him a right to make alterations and that the removal of the vault and making the opening in the wall were alterations which he had a right to make. Where, as here, there is an express covenant in a lease regarding alterations, the lessee is authorized to-make only such alterations as are included within the covenant, and as are not actually injurious to the premises. Agate v. Lowenbein (1874), 57 N. Y. 604; Hasty v. Wheeler (1835), 12 Me. 434. But the alterations that were provided for in the lease under consideration are such alterations as could be removed at the expiration of the lease. Clearly, an alteration by cutting a hole twelve feet by eighteen feet in a wall of the room leased, or by removing the vault, or selling the vault door, would not come within the provisions of this lease. Appellee having gone beyond the rights to make alterations given to him by the lease may be at once compelled to make satisfaction for the damages resulting from the' waste committed by him. Appellant, under such circumstances, is not required to wait until the end of the lease, for appellee having, gone beyond his rights, an immediate wrong was done which was at once the sub
The judgment is affirmed.