Shaft v. Carey

107 Wis. 273 | Wis. | 1900

BaRdebit, J.

The plaintiff’s motion for judgment ought not to have been granted unless it can be said that every fact essential to his entire cause of action has been alleged, •and has not been put in issue by the defendants’ answers. By his complaint the plaintiff seeks to have the barricade ■erected by defendants at the rear door of his saloon'removed, •and also to restrain the sale of liquors and cigars in the so-called “Annex.” The first ground of relief rests upon the implied covenant of quiet enjoyment of the leased premises, and the other upon the positive covenants contained in his lease, giving him the exclusive right of sale of liquors and cigars in the Palmer House Block. Whether any ground for relief exists as to the first question suggested depends upon the facts alleged regarding the leasing of the premises. The premises covered by the lease are mentioned as the “ saloon or bar room of the Palmer House,” including the card rooms contiguous thereto; also, a coal bin in the basement, and space therein for his ice box and for the storage of liquors. It appears that at the time the original lease was made the office and guest room of the hotel were on the second floor of the hotel building, somewhat remote from the room in question. It is not clear from the complaint just how they were connected, although there is an allegation that there was interior communication thereto from the office of the hotel. By subsequent allegations of the complaint it appears very clearly that the passageway leading to the door that was closed up was not in existence at the tfme the original lease was made. It is alleged that, as an inducement for plaintiff to enter into a lease for said room, Carey represented that it was his purpose to bring the hotel office and reception room for guests to the lower floor of the building, “and by a door connect the said office and reception room immediately with the said Palmer House saloon or bar room.” It is also further alleged that down to May 11,, 1899, Carey fully complied with the terms of said lease, “and also, in the years 1897 and 1898, made the changes in the inner construction in said hotel, and brought the office and reception room for guests clown from the second floor to the ground floor, in the room next adjoining the rooms leased to the plaintiff, constructing a passageway between the said-rooms, and placing only a partial screen, by a swinging door with a large glass panel, with the sign ‘ Bar ’ painted thereon, across the same, opening in and out upon a swinging hinge.” Whether this was done and completed prior to the renewal •of the lease on July 1, 1898, the complaint fails to state. It is evident from the terms of the lease that the proximity of the room leased to plaintiff to the adjoining rooms of the hotel was a matter of importance to the parties, and bore a direct relation to the value of the leasehold. When the lease was renewed in 1898, the plaintiff was entitled to the enjoyment of his leasehold interest with the appurtenances of ingress and egress as they then existed. In other words, when a person leases a room in a building, with doors and passageways so connected with other rooms as to be essential to the use and enjoyment of the one leased, the law implies a covenant that such use shall not be interfered with during the continuance of such term. The appurtenances of ingress and egress, essential to use and reasonably within the contemplation of the parties at the time of the leasing, are as much a part of the estate conveyed as the room itself, and any interference therewith is an invasion of the rights of the lessees for which the law affords a remedy. Rut the implied covenant of quiet enjoyment only applies to conditions in existence at the time of the leasing. It does not extend to things not in esse at the time of the demise. 1 Taylor, Landlord & T. § 256. The statute (sec. 2204, Stats. 1898) to the effect that no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not; does not apply to leasehold estates. This is the rule now established in New York, from which our statute was taken, although a different conclusion was first arrived at. New York v. Mabie, 18 N. Y. 151. If the door and passageway in question existed at the time the lease was renewed, and were essential to the proper use and enjoyment of the estate conveyed, the right to such use was more tharf a mere privilege or easement. It becomes a part and parcel of the leasehold interest, binding upon the lessor or his grantees. Plaintiff being in possession of the rooms at the time Matchette took his lease of the hotel building, the latter was charged with notice of the plaintiff’s rights and interests in the premises, and could claim no greater privileges than his lessor. First Nat. Bank v. Chafee, 98 Wis. 42, and cases cited. Our great difficulty has been to determine what the precise conditions were at the time the lease was renewed. It is quite certain from the complaint that, at the time the original lease was made, the door and passageway in controversy were not in existence. The allegation of the complaint that the changes in the inner construction of the hotel were made and the office brought down to the first floor “ in the years 1897 and 1898 ” is not an allegation that the door and passageway existed when the lease was renewed. The plaintiff bases his right to relief upon his lease, and, unless some right expressly or impliedly granted thereby has been invaded, he has no legal ground of complaint. If the door and passageway were constructed after the lease was renewed, the use of them by plaintiff was merely permissive, and could be revoked at any time, so far as any covenant in the lease is concerned. To entitle the plaintiff to a judgment requiring the removal of the barricade to the door, the complaint should have alleged with definiteness the precise condition of things at the time of-the renewal, or proof should have been taken so that the court could have been advised of the facts as a basis for judgment. The failure to furnish such basis, either by definite allegation or proof, is fatal to the judgment rendered.

The Other feature of the case relates to - plaintiff’s right to an injunction restraining the sale of liquors and cigars in the so-called “ Palmer House Annex.” Defendants’ contention is that the restriction in the lease cannot be construed to cover the addition made to the “ Palmer House Block ” after the lease was executed. The exclusive right of sale of the commodities mentioned, granted plaintiff by his lease, was a valuable one. Such right was recognized in the lease of the hotel from Carey to Matchette, in which the latter bound himself not to sell the same, or'permit them to be sold, in the hotel, except as he might secure plaintiff’s lease. Matchette knew of plaintiff’s rights, and recognized them so far as to make the pledge, above referred to. Such being the case, it is immaterial to determine whether the covenant in plaintiff’s lease is such as to run with the land. The defendants claim, however, that the grant of the exclusive right to sell in the “ Palmer House Block ” ought not and cannot be construed to cover the addition subsequently built. The building of the addition was a mere subterfuge to avoid the consequences of the restrictions in the leases. The Annex became and is a component part of the hotel building.. One of its walls is one of the walls of the hotel, without which the Annex could have no existence. It is directly connected with the main building by proper doors and entrances. If it were entirely disconnected with the hotel building, we should be compelled to say that the language of the plaintiff’s lease could not be construed to cover lands outside of the building known as the “ Palmer House Block.” But when the added structure became an integral part of the block, so constructed and designed to be such, the covenant, being continuing, should be construed to cover the block in its entirety, in whatever shape it may be, during the life of the lease. The law will not uphold a mere trick or. subterfuge admittedly adopted to defeat the plaintiff’s rights. The denial of the motion to dissolve the injunction needs no justification, any further than a statement of the facts.

For the reasons stated, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.

By the Court.— So ordered.