162 Mo. App. 558 | Mo. Ct. App. | 1912
This is a suit in equity, originally brought by Conrad Schopp, the owner of a business building in the city of St. Louis, to restrain his lessee, George P. Schopp & Co., a corporation, and the St. Louis Label Works, also a corporation and subtenant of the former, from permitting or making an unauthorized use' of the leased premises. The latter consists of a four-story building situated on the southwest corner of Third and Morgan streets. On the Third street front in the southeast corner of the building is a freight elevator and on the Morgan street eide-in the northwest corner of the building is a stairway leading to the upper floors.
The building was originally owned by one John Schopp, who apparently in 1894 leased it to the defendant The George P. Schopp- & Co., for a term of five years, with the privilege of renewal at the termination of the five years. Before the expiration of this term John Schopp died and the title to the premises appears to have passed to his widow, Mrs. Johanna Schopp. The George P. Schopp & Co., under the power granted it in tlie lease, sublet the second, third and fourth floors to the defendant St. Louis Label Works. Finding the. floor space inadequate for the
After hearing the evidence in the case the court found for defendants and dismissed the suit. From this plaintiffs have duly perfected their appeal.
The evidence in the ease tends to show that the damage to the stairways and floors for the period elapsing between the time of the making of these openings, that is some nine or ten years, and the time of the trial of the cause, which was on February 9', 19101,' amounted to from forty to sixty dollars, and it is claimed that the use of this stairway, elevator and floors being of a continuous character and there being no adequate remedy at law that injunction is the proper remedy. The learned counsel for appellants, in addition to the above, make three points. First, that Conrad Schopp bought the building subject only to the written recorded lease to the defendant Schopp' & Co., and that verbal license or easements granted by a former owner did not run with the land. Second, that the lessee had no right to authorize the building to be used for any purpose which under the contemplation of the lease would be considered an unreasonable use. Third, that the lessee has no right to grant an easement of a passageway over the leased premises to another.
In the case at bar it appears that the then owner, Mrs. Johanna Scliopp, assented to the cutting- of these openings in the walls of the three floors of the building about or sometime before 1901. When the subsequent renewals of the lease were made these openings were there and they, as well as the stairway and elevator and floors, were in use as at the time this suit was instituted. It is also in evidence that before Conrad Scliopp purchased he was aware of the presence of these openings in the wall and the use to which they were put. So that whether the right to maintain them and the right which flowed from that, of using
If it be conceded, however, that they are in use without lawful, legal authority or permission, the evidence in the case shows beyond doubt that the consequent damage to the Scliopp' Building is almost infinitesimal. The building is an old one — over twenty years old in 1910'. It has been under these leases to the Schopp Company over fifteen years ; to the Label Company over ten years. Beyond some outside ones, the lessors have never been put to making repairs. Distributing the damage over ten years that these openings have been in*use, it hardly amounts to five dollars a year. It is conceded that both defendants are solvent and able to respond in any damages that may be caused to the building by this' use, admitting for the sake of the argument that the use is unlawful. Considering all these facts and that one who comes into a court of equity must not only come with clean hands but must be prepared to do equity and himself not exact what is inequitable merely because it is within his legal right, and in further consideration of the fact that for whatever damage may be inflicted plaintiffs have an adequate remedy at law for their recovery, the decision of the learned trial court in dismissing, this suit was proper.
Counsel for appellant in their reply brief, in so many words, say there was “no ground for refusing a judgment for at least the amount of damages estimated in respondents’ brief as the maximum for the acts done. This is a common law action as to damages and, if they were only one cent, appellants should have judgment for it. ’ ’ That is true in a common law
Tire judgment of the circuit, court is affirmed.