Jurek v. Walton

Fullerton, J. — On April 28, 1924, the appellants, Jurek, leased to the respondents, Walton, for a term *106 of three years, a certain storeroom in the city of Tacoma, “to he used as and for a meat market and for the sale of meat and meat products.” The lease contained the following clause: “That no act shall he done and no trade, occupation or business shall be carried on upon said premises, or any use thereof made in violation of any Federal or State law or ordinances of the City of Tacoma, or dangerous or injurious to said building or premises or tending to depreciate or injure the reputation or value of the premises, or that shall render any insurance thereon voidable or extra premiums to become payable for such insurance.” The respondents, on taking possession of the property, installed therein a refrigerating plant, operating it by a five horse-power motor. There were tenants in the upstairs part of the building who complained to the appellants of the noises made by the plant, and also of vibrations of the building caused by its operation. The appellants carried these complaints to the respondents and sought to have the noises and vibrations stopped. Failing to obtain relief in this way, they brought the present action to enjoin the operation of the plant, alleging in their complaint that its operation was a violation of the restrictive clause of the lease before quoted. Issue was taken by the respondents with the allegations of the complaint and a trial was had which resulted in a dismissal of the proceedings. There was a conflict in the testimony as to the extent of the noise caused by the operation of the plant, and a conflict as to whether there was any vibration of the building caused thereby. The court found that the plant was installed under the supervision of the appellants; that they well knew its purposes; and that certain changes were made in the storeroom prior to *107 the installation of the plant intended to minimize the noises and vibrations usually caused by the operation of such plants. It further found that there was nothing unusual in the construction of the plant; that such plants have been in general use among operators of meat markets in the city of Tacoma for many years, and that such plants are a now common equipment of meat markets. It further found that, for five years immediately preceding the making of the lease to the appellants, the premises had been held by another tenant of the appellants, who conducted a meat market therein and who used a refrigerator plant in the conduct of his business similar to the one operated by the respondents, with the knowledge and consent of the appellants ; and further found that it was the understanding of the parties to the lease here involved that a refrigerating plant should be installed and operated therein during the term of the lease. It also found that the respondents’ plant is in good condition, that it was operated in a proper manner, and that its operation caused no undue noises or vibrations. Our examination of the evidence convinces us that the decided preponderance of the evidence is with the findings of the trial court. We are convinced, also, that these findings justify its conclusions. A lease of premises for a particular use constitutes a license to carry on the stipulated business by the ordinary methods and with the usual appliances. So in this instance, since the use of a refrigerating plant is the ordinary and usual adjunct of a meat market, right to use it is an implied covenant of the lease. Nor can the somewhat general words of the restrictive clause contained in the lease forbid its use. The clause would forbid, no doubt, the installation of a plant the operation of which would prove dangerous or injurious to the building, but we *108 agree with, the trial court that nothing of this sort follows as a result of the operation of the plant in question. It was the ordinary plant, larger than some but smaller than others in common use, and made no more noise and caused no more vibration than the usual plant of its kind. It may be that, owing to the manner in which the building of the appellants was constructed, the operation of the plant caused more annoyance to other tenants of the building than was contemplated when the lease was entered into, but this was not the fault of the lessees, and if a loss to the lessors arises therefrom they must alone bear it. There is nothing in the case of Spokane Stamp Works v. Ridpath, 48 Wash. 370, 93 Pac. 533, that militates against the conclusion we here reach. There, the lease was of a storeroom on the ground floor of a hotel. There was no designation in the lease of the purpose for which it might be used. The lessee installed therein machinery, not contemplated by the lessor, nor to be inferred from the situation of the property leased, the operation of which prevented the use of the hotel parlor, and prevented the leasing of certain of the guest rooms of the hotel. Plainly, the differences between the cases distinguish the applicable rule. The judgment is affirmed. Tolman, C. J., Mitchell, Mackintosh, and Holcomb, JJ., concur.