48 Mich. 505 | Mich. | 1882
This is an injunction bill. The complainant was widow of James J. Campan, and has had assigned to her as her dower the westerly half of the brick building known as Masonic Hall on Jefferson avenue in the city of Detroit. ' The defendant by purchase has become owner of the easterly half of the same building, and also of the westerly half subject to complainant’s life estate.
Masonic'Hall was erected by the Masonic order in the year 1851 on ground -of which a thirty years’ lease was taken, and on terms which affixed the building to the inlier
The lease under which the building was constructed expired May 1, 1881, and complainant and defendant came into possession of the westerly and easterly halves respectively. Complainant’s access to the upper stories of the building was by the stairway through the easterly store and the area over it. The part of the town in which the building is situated has of late been given up almost exclusively to wholesale business, and offices are not in as good demand as formerly. As now constructed, the third and fourth stories of the building have ceased to be in demand also.
The stairway taken out of the easterly store seriously diminishes the size, renders it somewhat inconvenient in form and of less value to rent. Defendant proposes to remove it; to close up the opening between the east and west halves of the building in the second story; to carry up the wall now dividing the lower stories to divide'the third and fourth stoiie3 also, so that the two halves of the build
The evidence shows beyond question, as we think, that the best interests of the parties concerned require the proposed changes to be made. The building has ceased to be in demand for the purposes for which it was erected, or for any other purposes which would not be better accommodated by interior changes. The principal demand in that-part of the city is for stores, arid one half of the building would be likely to b¿ desired by any one proposing to put merchandise into it. A common stairway of the kind now in existence would be more detriment to one party than advantage to the other, and the desire to remove it is therefore perfectly reasonable if the law will suffer it to be done.
It is to be observed of complainant’s dower that nothing was set off to her but the westerly half of the building. The stairway, or any common use of the stairway, was not in terms assigned, and if she has any right to make use of it, the right must spring from the fact that the stairway was the way of access to the upper stories of her half of the building when the dower was set off. She must claim the use as an easement, either as appurtenant to her freehold because in use with it when her right accrued, and by implication included in the assignment; or as a way of necessity.
It certainly cannot be claimed that the existing stairway is a way of necessity. It is scarcely a way of convenience; for one going up in the westerly store for the occupation of the rooms above it would be at least equally convenient and probably more so. It is not likely that complainant could rent her store to the best advantage to a tenant wanting the upper stories without providing or permitting them to provide some more direct access to the upper rooms from the
If the assignment of the dower carried with it the use of the stairway as an appurtenance, it must be upon the ground that a reasonable construction of the assignment, operating as a conveyance, would have that effect. And if complainant has an easement in the stairway, she has a freehold in it, and any improvement by defendant must be subject to its preservation. And if the easement would be appurtenant to a life estate, it would be equally appurtenant to the fee, if the fee in the west store were conveyed.
Suppose then that the west store had been conveyed without mention of the existing stairway; would it be a reasonable construction of the grant that because the stairway was then in use as a means of access to the upper stories, a perpetual easement in it passed to the grantee, which would preclude the grantor removing it, or making changes or improvements in his store which would interfere therewith ? We think not.
The building, as already stated, was constructed by a tenant, for a use that has ceased. Changes have not only become necessary, but they may well be assumed' to have been within the contemplation of the landlord when the building was erected. We discover nothing in the case which indicates that the stairway was intended to be permanent after the use of the upper stories of both stores should cease to be by one and the same tenant. Distinct occupations would.require distinct methods of access; and this state of things must have been contemplated as probable at some time. If so, the stairway as then constructed must have been understood as subject to change. Its temporary use in connection with the west store would no more give permanent rights than the temporary use of a way of access to the rear of that store across the rear of the east half of the lot, if such a use had existed. Permanent easements cannot be established on such slight foundations.
It is urged on behalf of complainant that it would be unreasonable to require the tenant for life to build the new
The decree must be reversed and the bill dismissed with costs.