Trask v. Little

Morton, J. The plaintiffs are lessees of a hotel known as the Worcester House in Revere. One Manning is the owner. Previous to and at the time of the lease to the plaintiffs the defendant had a lease of the premises. During his occupancy he built upon the demised premises the platform which is the subject of these proceedings. It was agreed between him and Manning that the structure should remain his property and that he should have the right to remove it “ when he got out.” The plaintiffs had no notice of this agreement. The defendant’s lease expired by limitation on the first day of April, 1901. The plaintiffs’ lease is for five years from that date. In December, 1900, Manning took possession of the premises including the platform. The reasons for this do not appear. In January, 1901, and on three occasions later, the defendant demanded of Manning and the persons in charge to be allowed to remove the platform but was refused permission to do so. Subsequently he [11] brought an action of tort against Manning which is pending in the Superior Court for Suffolk County. The plaintiffs entered under their lease about April 1,1901, and took possession of the premises, including the platform, upon which they made various repairs and changes. The defendant has brought a writ of replevin against the plaintiffs for the platform, and this bill is for the purpose of restraining him from interfering with the platform. The case was sent to a master and comes here on exceptions to his report, and on appeal from the final decree overruling the exceptions and confirming the report, and restraining the defendant from moving or in any way interfering with the platform during the plaintiffs’ lease. We think that the character of the platform was such that as soon as erected it became a part of the realty and not a mere movable chattel. Dodge v. Hall, 168 Mass. 435, 441. McIver v. Estabrook, 134 Mass. 550. Meagher v. Hayes, 152 Mass. 228. Under the agreement between the defendant and Manning the former could remove it at any time during the term. If he was prevented by Manning from doing so he would have an action against Manning for any damages that he sustained thereby. Ryder v. Faxon, 171 Mass. 206. Lewis v. Ocean Navigation & Pier Co. 125 N. Y. 341. If the plaintiffs had taken their lease with notice of the agreement very likely they also would be liable to the defendant if they refused upon due demand to allow him to enter and remove the platform. But it is expressly found that' they had no notice of the agreement, and we do not see why as between lessor and lessee as well as between grantor and grantee and mortgagor and mortgagee if a lessee takes without notice of the title of a prior lessee he should not hold the demised premises as against a prior lessee. Meagher v. Hayes, ubi supra. Wentworth v. Woods Machine Co. 163 Mass. 28. Ridgeway Stove Co. v. Way, 141 Mass. 557. Southbridge Savings Bank v. Exeter Machine Works, 127 Mass. 542. The result is .that we think that the decree should be affirmed. So ordered.