Case v. Minot

Allen, J. The court ruled that on the pleadings and facts reported the plaintiffs were not entitled to any relief, either by way of injunction or damages, against the defendants, and therefore dismissed the bill. The particular ground is not stated, but from the terms of the report and the course of the argument we are led to infer that it was thought that the plaintiffs should have sought their remedy against the Jordans alone, through whose immediate agency the acts complained of.were done, and that the present defendants are not responsible therefor. However, we have to consider the whole case. 1. It could not properly be held on the facts reported, that, as matter of law, the plaintiffs were not entitled to any relief against anybody. It is true that the description of the premises demised to the plaintiffs contained no express mention of the well or open space for light and air, and the lease contained no express covenants on the part of the lessors. But the situation and habitual use of the demised premises were such as to warrant, if not to require, the finding of an implied grant of a right to light and air from the open space, or at least from that portion of it owned by the defendants. It is true that the doctrine of implied grants of easements or privileges connected with real estate is applied with some strictness in this Commonwealth ; but in this case it might well be found, as it was found, that the right to light and air was necessary to the beneficial enjoyment of the demised premises. The open space was not accessible from the street. Its sole use, so far as the lessors were concerned, was for the benefit of the occupants of their building, and it must have been intended that the plaintiffs should have the benefit of it. There is no other reasonable view to be taken of the facts. The case of Doyle v. Lord, 64 N. Y. 432, much — 585 — resembles the present, and fully sustains the plaintiffs’ contention on this point; and the general doctrine that there is an implied grant of whatever is necessary to the beneficial enjoyment of the thing granted is familiar. Salisbury v. Andrews, 19 Pick. 250. Thayer v. Payne, 2 Cush. 327, 331. Pettingill v. Porter, 8 Allen, 1, 6, 7. White v. Chapin, 12 Allen, 516. Oliver v. Pitman, 98 Mass. 46, 50. Buss v. Dyer, 125 Mass. 287. Hooper v. Farnsworth, 128 Mass. 487. Johnson v. Knapp, 146 Mass. 70, and 150 Mass. 267. Brande v. Grace, 154 Mass. 210. Taylor, Land. & Ten. (8th ed.) § 161. 2 Washb. Real Prop. (5th ed.) 29, 30, 37, 38. Without undertaking to define what may, in all cases, be included as necessary, it is enough to say that, on the facts reported, light and air from this open space might well be found to be necessary. That being so, the facts reported are sufficient to show, or at least to warrant, a finding of a nuisance, or a substantial interruption of the plaintiffs’ right to quiet enjoyment of the premises ; Fuller v. Ruby, 10 Gray, 285, 290; Sanderson v. Mayor, &c. of Berwick-upon-Tweed, 13 Q. B. D. 547; Jenkins v. Jackson, 40 Ch. D. 71; Robinson v. Kilvert, 41 Ch. D. 88, 97; Taylor, Land. & Ten. (8th ed.) §§ 305, 309, 380; though perhaps not of an eviction; as to which see Royce v. Guggenheim, 106 Mass. 201; Bartlett v. Farrington, 120 Mass. 284; Brown v. Holyoke Water Power Co. 152 Mass. 463; Brande v. Grace, 154 Mass. 210; Upton v. Townend, 17 C. B. 30. 2. Assuming that the plaintiffs had a right to relief against somebody, it could not properly be held on the facts reported that they were not so entitled as against these defendants. This is the point on which most stress has been laid in the argument for the defendants. A brief recital of facts may be made. The plaintiffs’ lease would not expire till December 31, 1892. In it they covenanted to make no use of the premises that should be injurious to any person or property, or liable to affect any insurance on the premises or to increase the premium thereof, and to conform to such rules and regulations as might from time to time be established by the lessors for the general convenience and safety of the tenants in the building; but the lessors entered into no express covenants. At the time the plaintiffs took their lease, which covered the second, third, — 586 — fourth, and fifth stories of the east half of the building, Bradford and Thomas held a lease of the store and basement under the plaintiffs, which would run for a year longer than the lease to the plaintiffs, and which contained provisions identical with or similar to those in the plaintiffs’ lease; and they covenanted not to make any alterations or additions during their term without the written consent of the lessors. On the 20th of May, 1892, the defendants, in order to enable themselves to make another lease, which should include said basement, to the Jordans, and to give possession thereof to the Jordans, bargained with Bradford and Thomas to vacate the same and to accept other rooms in place thereof, and to permit the enlargement of the chimney then serving the engine-room; the expressed consideration therefor being ten thousand dollars, to be paid to Bradford and Thomas in cash, besides certain other considerations connected with the use of the premises. On the same day the defendants executed a lease to the Jordans of the whole premises then occupied in part by Bradford and Thomas and in part by the plaintiffs, with these provisions amongst others : “ The lessees take subject to the lease to Case, Dudley, and Battelle [the plaintiffs], and to the lease to Bradford and Thomas, and to the agreement dated this day between the lessors and said Bradford and Thomas. . . . Permission is granted for the lessees to put into the basement of the building boilers, dynamos, and other appurtenances sufficient to supply power, light, heat, etc. to the neighboring buildings occupied by them, and to build a chimney of adequate size in connection therewith.” The Jordans went into possession on June 1,1892, and proceeded to put in electrical works under the permission contained in their lease. There is nothing in the facts reported to show that in putting in these works the Jordans made any more disturbance of, or interference with, the plaintiffs than was necessarily incident to the doing of such work, or that in any respect they exceeded the permission granted to them by the defendants. The contrary is to be assumed. Mr. Minot, one of the defendants and their active trustee, testified that he could do nothing to stop the work, except to say to the Jordans that' he would be glad to have anything done to prevent annoyance, The defendants objected to his being asked if the Jordans were — 587 — doing anything other than or different from what they were authorized to do under the lease, and the question was excluded. Moreover, in their answer the defendants aver that the Jordans “ are regarding the terms and provisions ” of their lease. Upon these facts it might well have been found that the defendants sanctioned and authorized whatever the Jordans did, and were answerable for it. They gave express permission; and they did it for a consideration. They bought off Bradford and Thomas for the very purpose of letting the premises to the Jordans, with this permission. The effect was to injure the plaintiffs. This result was the natural and probable consequence of what the defendants permitted to be done. It was a result which they must have contemplated from the outset. A jury upon these facts would not only be well warranted in finding that the defendants were responsible to the plaintiffs, but that view seems to be most in accordance with the facts. The decision in the well considered case of Upton v. Townend, 17 C. B. 30, 66, 71, 72, is closely applicable on this point. See also Lufkin v. Zane, 157 Mass. 117; Fish v. Dodge, 4 Den. 311, 317. 3. The defendants raise the further objection that the Jordans are not parties to the suit, and that it became apparent during the trial that they were the persons actually causing and doing the things complained of by the plaintiffs. So far as this ground of defence is set up in the answer, it is found in the averment that the defendants made a lease “to one Jordan and another, which lease was expressly made subject to all the rights of the plaintiffs in the premises, and which lease gave to the lessees therein named, subject as aforesaid, certain rights of repair, renewal, and remodelling; that said lease is now in full force; that, as defendants are advised, their lessees are regarding the terms and provisions thereof; and that the defendants are directing, controlling, or doing no work in or about the premises whatever.” This ground of defence seems to be stated in the answer rather by way of exoneration of the defendants than as pleading the want of parties. When the defendants say that they made a lease “to one Jordan and another,” it cannot be supposed that they thereby meant to suggest that the plaintiffs must make “ one Jordan and another ” parties defendant. The — 588 — objection of want of parties, when taken by plea or answer, should give the names of the necessary parties where this can be done, and especially where it is peculiarly within the knowledge of the defendants. Story, Eq. Pl. §§ 236, 238, 543. But, waiving the discussion of technicalities, let it be assumed that no injunction could properly be granted without making the Jordans parties. The only result is, that the court would, even in the absence of proper pleadings, take notice of the fact, and direct the cause to stand over, in order that the new parties might be added. Schwoerer v. Boylston Market Association, 99 Mass. 285, 295. Story, Eq. Pl. §§ 236, 238. 1 Dan. Ch. Pl. & Pr. (4th Am. ed.) 292. The bill was not dismissed upon this ground, but upon the ground that the plaintiffs were not entitled to any relief, either by way of injunction or damages, against the defendants. The Jordans might have been made parties by an amendment, and might be now if an injunction were still sought. But the time has passed when an injunction could properly be issued, and the only question remaining is whether relief by way of damages should be given. So far as this form of relief is concerned, the Jordans are not necessary parties. They have entered into no implied covenant for quiet enjoyment with the plaintiffs. If in any aspect the plaintiffs could maintain a claim for damages against them, certainly they are not joint contractors with the defendants, and if the defendants are liable in damages there is no rule requiring the Jordans to be joined in a suit to recover such damages. The objection of want of parties is therefore unavailing in the present posture of the case. 4. The only remaining question is whether relief should be granted against the defendants by way of damages. It was held in Milkman v. Ordway, 106 Mass. 232, that where a plaintiff in good faith brings a suit seeking equitable relief, supposing, and having reason to suppose, himself entitled to such equitable relief, even though at the time when the bill was brought he had no right to relief purely equitable, yet the court will afford relief by awarding compensation ; a fortiori, if the reason for denying the purely equitable relief occurs pending the suit. In the present case, provided in other respects the plaintiffs make out their case, the only reason for not granting an injunction — 589 — is that, pending the suit, the plaintiffs’ lease has expired. The plaintiffs should not for this reason be turned out of court, but the bill should be retained for the assessment of damages. Woodbury v. Marblehead Water Co. 145 Mass. 509. Brande v. Grace, 154 Mass. 210. St. 1887, c. 383. Case remanded for further proceedings.