Lowell v. Strahan

W. Allen, J. We think that the outside of the front wall was part of the premises demised in the lease of the first floor in — 8 — the building. If the language had been used in a conveyance iri fee simple, no question could have been made that the walls of the building were included. Undoubtedly, the owner of a building might, in conveying the lower and upper portions of it to different grantees, except the outside of the walls, as he might do in conveying the whole building to one grantee. In every case, it is a question of intention, found in the language used, as applied to the subject matter, and construed in connection with the whole instrument.' A lease for years by indenture differs from a deed in fee simple, not only in the nature of the estate created, but also in the fact that the instrument of demise is an agreement between the parties containing mutual covenants affecting their rights in the premises. The words of description used should be construed in view of these considerations, which might require a different meaning to be given to them from what would be given to similar words in a conveyance in fee. The words “ first floor ” in the building, are equivalent to “ first story ” of the building, and naturally include the walls. The apparent intention is to separate a section of the building as a distinct tenement. The words “first floor” define the lower and upper boundaries of this, but there is nothing to fix the lateral boundaries except the boundaries of the building. In this respect the words differ somewhat from the word “room.” “Floor” means a section of the building between horizontal planes. The words “ in building” show that the section is of the whole building, and not of a part of it. The word “room” includes a description of the perpendicular as well as of the horizontal planes which bound the parcel of the house described by it, and excludes the oytside of lateral walls, at least when they constitute the walls of another room, as clearly as the words “first floor ” exclude the flooring of the story above it. Under what circumstances a lease of a story of a building would include a space beyond the building over land belonging to it, need not be considered. In this case, the building adjoins the sidewalk, and the words “first floor in building” must be held to include the entire front wall of that part of the building, unless there is something to control the natural meaning of the language. That the outside of the front wall would be valuable to the lessee as part of the premises, and that the lease gives him the — 9 — right to use it for some purposes, such as putting out signs and displaying goods, is not disputed; but it is contended that the right is a privilege or easement appurtenant to the leased premises in a part of the building, not parcel of them. The defendant contends, on the other hand, that the outside of the front wall is parcel of the leased premises. It often occurs in leases of part of a building that rights in other parts, or in land not parcel of the premises, as in entries, passageways, and yards, pass as appurtenant to them. The question in such cases generally is, not what is parcel of the demised premises, but what is incident to them. In general, a deed or lease of a house or store will include the land under it. In Stockwell v. Hunter, 11 Met. 448, and in Shawmut Bank v. Boston, 118 Mass. 125, it was held that the land under a building would not pass as parcel of the premises in a lease of the basement of a building, the upper stories of which were let to other tenants. In the first case, Mr. Justice Dewey said: “ The proper construction of such a lease as the present, as it seems to us, is, that the lessee’s right of occupation of the land is an interest, for the time being, defeasible by the destruction of the building by fire.” 11 Met. 456. In the latter case, Mr. Justice Morton said: “ The real question is whether the intention of the parties, to be collected from the whole lease, was to grant to the lessees any estate in the land itself. As we have seen, the lease does not in terms grant any estate in the land..... In cases where different rooms in the same building are leased to separate tenants, the situation of the property and the nature of the tenures exclude the idea that each tenant takes an estate for years in the land. Such estates existing at the same time in different tenants are inconsistent and impossible.....The bank and Lawrence cannot both take an estate for years of the same land.” 118 Mass. 129, 130. In the case at bar, the words of description naturally include the premises in question, the outer walls. It is plain that the lease grants not merely an interest in the walls, like the incidental right of support or shelter which it grants in the land and other parts of the house, but the right to use and enjoy, as leased premises, for the purposes of business. That right is exclusive. The landlord has no right to use or to let it for such — 10 — purposes. From the mere demise, without regard to special provisions of the lease, there is no reason that the landlord should be regarded as having rights in the outside different from what he has in the inside of the wall. As owner of the upper tenement, he has a right in the whole wall for support, but that right would not operate to except the walls by implication from a deed in fee of the lower tenement, or from a grant of it for years. The occasions that the reversioner would have to enter upon the wall of the demised tenement must be few and extraordinary, and it could not be inferred, from the fact that the right was not expressly reserved in the lease, that the wall was excepted from it. We can see nothing in the nature of the estate granted, therefore, that should prevent the outer wall from being included as parcel of the demised premises. On the contrary, the fact that it is of value to the tenant for the use for which the premises may be occupied, and of no value for use to the landlord, would indicate that it was part of the premises, if the description was doubtful. If it did not pass by the lease in this case, it would seem that the right which the plaintiff claims could be maintained. The only right of the tenant would be to make such use of it as would be incident to his grant of the adjoining premises, and the right of the landlord would be tp enter upon it, and make any use of it not inconsistent with the incidental rights of the tenant to use it. He might not have a right to take down the tenant’s sign, but he would have the possession of the wall, and the right to enter upon it, and to use any of it not actually used by the tenant, for any purpose not inconsistent with the use by the tenant of the leased premises. It is not reasonable to suppose that this was the intention of either party. The actual possession and use of the wall by the tenant which the parties obviously intended are substantially that of leased premises, and it would be very difficult to define or fix the respective rights of the parties in it, except on the assumption that it is a part of the demised premises. There is nothing in the particular provisions of the lease that bears with much force upon the question. The covenant of the lessee to repair is what would be expected, whether the outside of the wall were included or not, unless the suggestion is entitled to some weight, that, if the outer surface of the wall was not — 11 — included, the lessor would probably have insisted upon a special covenant by the lessee to keep it in repair. Perhaps the covenant by the lessee to save the lessor harmless from all damages arising from neglect in not removing snow and ice from the roof of the building, or “ from the sidewalks bordering on the premises so leased,” may afford a slight inference that the wall, including the outer surface of it, was part of the premises. The covenants by the lessee not to underlet, and not to make any unlawful, improper, or offensive use of the premises, nor any alterations or additions, and that the lessor may enter upon the premises to examine the condition thereof, while proper to protect the interest of the reversioner in the surface of the wall do not appear to have particular reference to that. We can find nothing in the lease which militates against the idea that the whole outer wall is included in the premises; and the description of the premises as applied to the subject matter, and the right in the outer surface of the wall, which it is reasonable to suppose the parties intended that the lessee should have, and the entire reasonableness that the whole of the front wall of that part of the building should be included in the lease of a floor or story of it, in connection with the particular provisions of the lease, lead us to the conclusion that the outer surface of the wall was part of the demised premises. We find no authority against the conclusion we have reached. Pevey v. Skinner, 116 Mass. 129, decided that, where different rooms in a building were let to different tenants, a license by the owner of the building to the tenant of a lower room to place his sign on the outer wall of the building extending fifteen inches higher than the floor of the room above, was not revoked by a lease of the room above, which contained the provision that “ the lessee may have the right to place signs upon the outer wall of said rooms.” The general right in the outer wall of the lessee of a single room was not considered. The court said, “ His right to use the outer surface of the wall was defined, and thereby limited, by the terms of the lease.” The decision can have very little bearing upon the lease of a “ floor,” which does not define and limit the right to use the outer wall. Riddle v. Littlefield, 53 N. H. 503, and Baldwin v. Morgan, 43 Hun, 355, are directly in favor of our conclusion. — 12 — Loring v. Bacon, 4 Mass. 575, and Cheeseborough v. Green, 10 Conn. 319, are cases where the respective rights of owners of lower and upper tenements in the same building are considered, but have no particular bearing upon the case at bar. It is contended that the agreement of the defendant to allow the sign of a stranger, in consideration of an annual payment by him, to remain upon the outside wall demised, was a breach of the covenant in the lease not to underlet any part of the premises. But this was a license, and not a lease. It was permission to do a particular act, namely, to affix a sign to the wall, and gave no authority to do any other act upon the premises. The fact that the permission was paid for, and that the act permitted was a continuing one, are ordinary elements of a license. Every license to do an act upon land involves the exclusive occupation of the land by the licensee, so far as is necessary to do the act, and no further.' A lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms. It is clear in this case that the intention was that the licensee should have no other right in the premises than to affix his sign to them, and that every other right should remain in the defendant. An agreement of this nature cannot be construed as a lease; it must create either a license or an easement. In Pevey v. Skinner, ubi supra, it was said that permitting a sign to be kept upon the wall for a long time would imply a license, but it was not intimated that it would imply a lease of the outer surface. We have not been referred to any case in which the question here presented, or any closely resembling it, has arisen. Numerous cases have arisen in England where the question was whether persons occupying land under particular agreements were liable to be rated as occupiers. See Cory v. Bristow, 2 App. Cas. 262; Electric Telegraph Co. v. Overseers of Salford, 11 Exch. 181; Lancaster Telephone Co. v. Overseers of Manchester, 14 Q. B. D. 267; Watkins v. Overseers of Milton-next-Gravesend, L. R. 3 Q. B. 350; Forrest v. Overseers of Greenwich, 8 E. & B. 890. In Selby v. Greaves, L. R. 3 C. P. 594, the letting of a defined portion of a room in a factory with steam-power for working lace machines was held to be a demise; and in Hancock v. Austin, 14 C. B. (N. S.) 634, permission to place lace machines in a room — 13 — in a factory, and to work them with steam-power furnished by the owner of the factory, was held to be a license, and to create no demise. The case last cited approaches nearest to the case at bar of any that we have seen, and in that the reasons for regarding the transaction as a lease are obviously stronger than in this case. That was permission to occupy with fixed machines a portion of the floor and space above it; this is permission to insert fastenings in the outer wall from which to suspend a sign in proximity to, but outside of, the building. Judgments affirmed.