| Mass. | Feb 28, 1906
This is a bill in equity to enjoin the removal of a show case belonging to the plaintiff, and which either has been affixed or placed by him in proximity to certain premises occupied by the defendant. In the Superior Court a decree was entered dismissing the bill, and the case comes here on the plaintiff’s appeal, 'without a report of the evidence, but with certain findings of fact made by the presiding judge. Under the established practice these findings are to be considered as conclusive. East Tennessee Land Co. v. Leeson, 183 Mass. 37" court="Mass." date_filed="1903-02-26" href="https://app.midpage.ai/document/east-tennessee-land-co-v-leeson-6428125?utm_source=webapp" opinion_id="6428125">183 Mass. 37, 38.
It appears from the facts that both parties under written leases occupied rooms in different stories of the same building. The plaintiff, who was a dentist, had rooms on the second floor, while the defendant had an art store for the sale of pictures on the ground floor, with a room in the fourth story. A common stairway which terminated in an open vestibule at the street entrance led to the upper rooms. To advertise his work, and to attract patients the plaintiff, with the verbal permission of the lessor, placed in the vestibule a show case so located as to obstruct a full view of the window on the premises of the defendant, which was used by him because it faced the vestibule, to display his goods for the purpose of attracting customers. In placing the show case a part of the window sash was cut away, and it then was fastened by screws to the wood and iron work of this part of the building, but at the trial any right so to fasten it was abandoned. It was still contended, however,
If the defendant’s demise included a full and unobstructed use of the window, placing the show case in the manner described was a trespass, and its removal lawful.
By the terms of the lease the premises are described “ as the store numbered 491 Washington Street, with the basement under the same, and the room numbered 26 on the fourth floor of the building numbered 498 Washington Street, known as the ‘ Blake Building.’ ” This description left the vestibule and stairway in the possession and control of the lessor. Marwedel v. Cook, 154 Mass. 235" court="Mass." date_filed="1891-06-29" href="https://app.midpage.ai/document/marwedel-v-cook-6423865?utm_source=webapp" opinion_id="6423865">154 Mass. 235.
But it is expressly found that the window is of much value for advertising his wares, and “ this use by the defendant was contemplated by him and his lessor when he took his lease, and constituted a material element in the rental to be paid.” By the construction of the building evidently such an arrangement must have been intended for the use of whoever occupied the store as a tenant. Case v. Minot, 158 Mass. 577" court="Mass." date_filed="1893-04-04" href="https://app.midpage.ai/document/case-v-minot-6424543?utm_source=webapp" opinion_id="6424543">158 Mass. 577. And this is tantamount to a finding that the beneficial use of the premises described, and leased as a store, required that a view of the window should not be obstructed permanently, and hence this incorporeal right passed by implied grant as a part of the demise. Salisbury v. Andrews, 19 Pick. 250, 255. Dexter v. Manley, 4 Cush. 14.
The plaintiff having failed to establish his allegation of title, the decree dismissing the bill must be affirmed.
So ordered.