Stockham v. Borough Bill Posting Co.

Hirschberg, J.: The plaintiff is the owner of certain' real estate in the bor- . ough of Brooklyn," on the northwest corner of Atlantic avenue and Cleveland street, having a frontage on the avenue of over one hundred feet. On the 22d day of March, 1910, the property was- inclosed by a substantial board fence on the line of Atlantic avenue, which had been constructed by the plaintiff at an expense of more than sixty dollars, and which the evidence shows would cost more than that sum to replace. On the day named the plaintiff by his agent, made an agreement in writing with the defendant, as follows: “Brooklyn, N. Y., March 22ncl, 1910. “ In consideration of a-yearly rental of $25 00/100 dollars, the undersigned, owner of lots located at N. W. cor. Atlantic Ave-. nue & Cleveland St., Borough of Brooklyn, City of New York, hereby leases to the Borough Bill Posting Company, Brooklyn, N. Y., the exclusive privilege of erecting and using fence or sign board to be located on said lots for bill• posting purposes; the owner reserving the right in case said property is sold or required for building purposes, to cancel all privileges upon returning to the Company a pro rata amount of said yearly rent; all fences or sign boards erected by the Company remain its property and it has the right to remove the same- at the expiration of this lease. Privilege of renewal is also given upon the same terms.” Shortly after- the execution of this agreement, the defendant tore down and took away the plaintiff’s line fence, and this action was brought to recover the damages thereby occasioned. After the evidence was closed on both sides, the court dismissed the complaint with the following memorandum: “The lease (Defendant’s Exhibit $ 1) is still in existence, and, therefore, the plaintiff’s complaint as to the damages sustained is prema-' [644] ture. If the defendant will fail or neglect to replace the plaintiff’s fence in its original position, after the expiration of the aforesaid lease, then a cause of action for damages sustained would arise against the defendant; ergo, after trial.” The court evidently adopted the language of the document itself in treating and regarding it as a lease. It is. not a lease. It created no tenure and gave no estate, or even easement in the land. The. plaintiff remained in possession of his land, and the defendant acquired a license only, the license being limited to the precise and express terms of the ■ document. The license did riot pretend to include a right to tear down and carry away the plaintiff’s inclosing fence, but expressly limited the defendant to the privilege of erecting a fence or signboard of its own to be located on the lots and to be removed by it when the privilege ceased, either by the lapse of time or a cancellation of the privilege. It follows that whether the action be regarded as for waste, or in trover or trespass, it was fully made out and the plaintiff was entitled to judgment. In Jackson v. Babcock (4 Johns. 418) it was held that an instrument executed under seal by an owner of real estate, giving to another the' right to- build upon, and to occupy the land at pleasure, conferred a mere license or personal privilege but conveyed no title to the premises. In Shepherd v. McCalmont Oil Company (38 Hun, 37) the owner of a tract, of land made a written agreement, signed, sealed, acknowledged and recorded, granting the exclusive right of entering upon any 'part of the lands and of erecting buildings thereon with a right of way to and from the same for the purpose of gathering and preserving minerals and ¡oils, and it was held that the instrument amounted merely to a license. Even regarding the agreement as a lease, the action, if for waste, is not premature. In. Agate v. Lowenbein (57 N. Y. 604) it was held that an action for waste would lie against a tenant during the demised term and that he would be liable during the term for. the appropriation of materials severed by hfm even if he was unimpeachable for waste. - In Robinson v. Kime (70 N. Y. 147) it was held that the felling of trees for the purpose of sale by a tenant for life, to . the injury of the reversioner, is waste, and that an action lies [645] by the latter immediately to recover damages for the injury to the freehold. The action of the defendant in removing the plaintiff’s fence amounted to an unlawful trespass, and cannot be justified by the suggestion that the fence might obstruct the view of a signboard located on the lots. If that be a fact, it furnishes a good reason for not obtaining the privileges on lots so inclosed, but no more justifies the removal of the fence without authority than it would the removal of- a dwelling on the land occupied by the owner on the pretense that the licensee’s signboard could be seen better if the building was not there. The judgment should he reversed. Thomas, Carr and Rich, JJ., concurred in result; Jenks, P. J., read for affirmance.