Brande v. Grace

Allen, J. The determination of this case depends upon the proper application of rules of law, which of themselves are simple. “ The grant of anything carries an implication, that the grantee shall have all that is necessary to the enjoyment of the grant, so far as the grantor has power to give it.” Salisbury — 212 — v. Andrews, 19 Pick. 250, 255. And in order to determine what is thus granted by implication,, the existing circumstances, and the actual condition and situation of that which is granted, may be looked at. Salisbury v. Andrews, 19 Pick. 250, 255. The premises leased to the plaintiffs were described as “ the rooms numbered 1, 2, 3, and 4, located on the second floor of building numbered 181, and located on Tremont Street in said Boston, with all the rights and privileges thereto belonging.” These rooms included all the front rooms in the second story of the building. The building was set back twelve or fourteen feet from the line of the street, and the space between the building and the line of the street had been used as a part of the sidewalk, but never dedicated to the public. The rooms were therefore front rooms, from which the view of the street was unobstructed. The plaintiffs hired the rooms for business purposes. The alterations which the defendants were proceeding to make would have the effect to interpose another room between the leased rooms and the street, and the plaintiffs’ rooms would no longer be the front rooms of the building. Alterations of this character are inconsistent with the rights of the plaintiffs under their lease. It could not have been understood at the time the lease was given that a right to make such alterations was reserved. It is not like the case of the erection of a building, either by a stranger or by the lessor, upon an adjoining lot, which is adapted to have a separate building erected upon it. In this case the lessor, or those holding his title, seek to make such changes in the building itself which contains the leased rooms as will essentially change their character. The subject of the lease is so materially changed that the rooms will no longer answer to the description of them in the lease, when the condition and situation of the premises are also looked at. The lease carries with it an implication that the lessor should not thus proceed to impair the character and value of the leased premises. Salisbury v. Andrews, 128 Mass. 336. Doyle v. Lord, 64 N. Y. 432. We do not regard this view of the rights of the parties as at all inconsistent with the decision in Keats v. Hugo, 115 Mass. 204, and other cases, which hold or intimate that the necessity must be pretty plain in order to warrant the implication of a — 213 — grant. In this case it is plain that the alterations are inconsistent with the rights of the plaintiffs under their lease. Under this state of things the defendants might properly have been enjoined from proceeding with their proposed alterations. But the learned justice before whom the case was heard in the Superior Court took a different view of the rights of the parties, relying, it is said, upon Keats v. Hugo, 115 Mass. 204; and accordingly the plaintiffs’ prayer for an injunction was refused. The defendants thereupon proceeded with the work, until now it is completed, so far at least as the external structure of the building is concerned. The lease to the plaintiffs will expire on the last day of February next, and, if the defendants were now ordered to pull down their structure, they might then restore it. The rules under which mandatory injunctions have been issued for such a purpose should not be applied in a case like this. Attorney Greneral v. Algonquin Club, 153 Mass. 447. It would cause an unnecessary destruction of property. In view of the early termination of the plaintiffs’ lease, their remedy should now be confined to compensation in damages, to reimburse them for the injury which they have suffered. Decree accordingly.