| Mass. | Nov 15, 1873
The first question to be determined on this report is, Did the lease include the strip of land ten inches wide under the eaves in the rear of the brick building ? Did it pass under the description, “ a certain brick building situated in said Boston, on Milk Street, so called, and numbered five, seven and nine, on said street ? ” The strip ten inches wide was substantially covered by the eaves of the building, and was owned by the defendants. The well settled rule that the grant of a house carries with it the title to all the land under the house which the grantor owns, extends to all the land covered or occupied by the house itself. As the eaves are a part of the building, the land under them is included in the description, when owned by the grantor. Where land is conveyed, bounded on a house as a monument, the land to the edge of the eaves only passes, that being the extreme part of the building ; so where the house itself is granted or demised, the extreme parts of the house are the bounds and limits of the conveyance, and such title as the grantor has to the land thus occupied by the whole house passes by the grant or demise. Millett v. Fowle, 8 Cush. 150. Carbrey v. Willis, 7 Allen, 364, By the conveyance of a mill, the land under the mill and its overhanging projections passes. Blake v. Clark, 6 Greenl. 436. We are of opinion, therefore, that all the land under the eaves was included in the lease, and passed as parcel under the description of the ‘ brick building.”
Upon the facts stated in the report, it appears that the party wall between the demised premises and the adjoining estate, belonging to the Duttons, was built in part upon the land under the eaves in rear of the brick building included in the lease to the plaintiffs. This wall was built by the Duttons under an agreement with the defendants, and by their authority, and for their benefit. This authority was given under an assumption of right, and by a formal agreement to which the plaintiffs were not parties. The act of the Duttons in building the wall under these circumstances must, therefore, be taken as the act of the defendants done under an assumption of title, and is a breach of the covenant for quiet enjoyment. The defendants covenanted against their own acts, and the Duttons built the wall on the demised premises by their authority. It was not the act, therefore, of a stranger, but of the lessors. Crosse v. Young, 2 Show. 425. Hurd v. Fletcher, 1 Doug. 43. Lloyd v. Tomkies, 1 T. R. 671. Mayor of New York v. Mabie, 3 Kernan, 151. Its effect was to deprive the plaintiffs of so much of the demised premises as the party wall covered, by the erection of a permanent structure thereon changing the character and beneficial enjoyment thereof, and the defendants are responsible therefor, without further proof of the intent. Royce v. Guggenheim, 106 Mass. 201" court="Mass." date_filed="1870-11-15" href="https://app.midpage.ai/document/royce-v-guggenheim-6416325?utm_source=webapp" opinion_id="6416325">106 Mass. 201. Upton v. Townend, 17 C. B. 30.
Where a tenant is evicted from a material portion of the premises, he may treat it as an eviction from the whole, and may abandon his lease, and he is not responsible for rent j nor, if he retains possession of the remainder, can the lessor recover the vent. Leishman v. White, 1 Allen, 489. Morrison v. Chadwick, 7 C. B. 266. Christopher v. Austin, 1 Kernan, 216. But if he prefers to retain possession of that portion from which he has not been evicted, he may maintain an action for the breach of tho covenant fur quiet enjoyment.
In Ellis v. Welch, 6 Mass. 246" court="Mass." date_filed="1810-03-15" href="https://app.midpage.ai/document/ellis-v-welch-6403506?utm_source=webapp" opinion_id="6403506">6 Mass. 246, it was held that a lessee could not maintain an action on this covenant against his lessor, by reason of the laying out of a town way over a portion of the demanded premises. See Dudley v. Folliott, 3 T. R. 584. But the case is put expressly on the ground that the lessee, equally with his lessor, has his remedy under the statute against the town. The court says that the conclusion is supported on principle by the cases deciding that a general covenant in a lease for quiet enjoyment extends only to entries and interruptions by those who have title. If the way had been laid out by the lessor, the case would have fallen within the principle stated. See also O’Keefe v. Kennedy, 3 Cush. 325 ; Dexter v. Manley, 4 Cush. 14; Whitney v. Dinsmore, 6 Cush. 124; Estabrook v. Smith, 6 Gray, 570; Sprague v. Baker, 17 Mass. 586. The plaintiffs may, therefore, maintain this action against the lessors, and recover damages for such injury as they have suffered by the erection of the party wall on the land included in their lease. But they cannot recover for any alleged injury arising from the erection of the wall on the land of the Duttons. Royce v. Guggenheim, ubi supra.
Case to stand for trial.