Ramirez v. McCormick

*Mr. Justice Heydenfeldt [246] delivered the opinion of the Court. Mr. Ch. J. Murray concurred. There is no stipulation in the lease as to the point at which the plaintiff may have an entrance to the cellar, nor indeed is anything said about it. He is certainly to have the use and enjoyment of the cellar, and if no part of the premises within reach of the cellar had been reserved to him, the only question would be, whether the point selected would be least injurious to the. defendants. But in express terms he has reserved a space of eight feet in width at one end of the building, Jkom which space the cellar can be reached, and it follows, naturally, that without an express stipulation which would entitle him to enter through the premises of the defendants, he must seek an entrance upon his own ground. It is argued that this eight feet was intended to be a part of the building, and also, that it was designed for a stairway to upper stories which the plaintiff had the right to build. But all this is mere conjecture. The lease does not say so; and so, if the plaintiff has a legal claim to have an entrance through the defendants’ premises to the cellar, merely implied from the right he reserved to occupy the cellar, why may he not also claim the right of a stairway to the upper stories, when built, through the defendants’ stores ? To as full effect as in the case of the cellar, he has reserved the right to build these stories, and that would just as strongly [247] imply the right to reach them, so as to enjoy their use. For aught that we can see, the eight feet passage may be sufficient' for both an entrance to the cellar and a stairway to an upper story, if one is built, and if it is not, the plaintiff must abide the consequences of his contract. The Court erred in charging the jury that the plaintiff had a right to a passage way to his cellar, wherever he chose to construct it, and therefore the judgment is reversed, and the cause dismissed.