Arafe v. Howe

Crosby, J. The plaintiff is the lessee named in a certain lease given to him by the defendants of “The whole of the basement under the building situated qn the corner of Summer and Kingston streets in said Boston ...” with certain exceptions not material to the issues involved. The premises were to be used by the plaintiff as a bowling alley and pool room and the lease is for the term of five years from October 1, 1914. This suit is brought for the re-formation of the lease and for an abatement and reduction of the rent reserved [50] on account of the taking of a part of the premises leased and for other acts done or permitted by the defendants. 1. The judge of the Superior Court before whom the case was heard found that “the whole basement under the building leased to the plaintiff includes the space under the sidewalk and outside the vertical plane of the walls of the building occupied by the plaintiff. ” This finding was warranted. There was nothing to show that that portion of the basement under the sidewalk was not be to used in connection with the basement as a whole. Apparently it was originally constructed for such use, and is not now accessible to anyone except the plaintiff. The plaintiff and the defendants understood that the lease covered the whole basement including that part under the sidewalk and acted in accordance with such understanding. Such was the manifest intention of the parties, and the construction which they put upon the lease should be followed unless forbidden by some positive rule of law. In the present case we cannot say that the construction adopted and acted upon violates any rule of law. Dakin v. Savage, 172 Mass. 23. Epstein v. Dunbar, 221 Mass. 579. The course of conduct of the parties constitutes a construction of the lease which will prevent the lessee at this time from asserting a different construction. Epstein v. Dunbar, supra. 2. The placing of steam or water pipes in the basement during the term of the lease by the defendants was not a violation thereof but was expressly authorized thereby by the provision which authorized the defendants to “introduce additional machinery, pipes, wires or fixtures, if they should elect so to do.” 3. About six months after the beginning of the term, the defendants desired to make certain alterations in the store, on the first floor of the building immediately above the basement leased to the plaintiff, which necessitated placing some posts and stringers in the basement as shown on a certain plan; and on March 2, 1915, the plaintiff and the defendants entered into an agreement in writing, in which the plaintiff agreed that the defendants should be permitted to erect the posts and stringers, as shown on the plan, which was attached to the agreement, and the plaintiff was to have a yearly reduction of rent of $500. As the placing of the posts and stringers in the basement necessitated closing up the [51] window in the toilet room, the plaintiff is not entitled to damages therefor, as the closing up of this window was in accordance with the contract and plan, and was one of the changes made for which he was to receive a reduction of rent. 4. As the defendants for the reason stated are not liable in damages for closing the window in the toilet room, the plaintiff is not entitled to recover for any interference with or impairment of the ventilation of that room caused by closing the window. As the placing of pipes in the basement by the lessors was authorized by the express provisions of the lease, as already pointed out, no damages can be recovered therefor, and although the evidence shows that the pipes prevented some of the windows in the basement from being opened and others could only be opened to a very limited extent, and that thereby the ventilation and light of the basement is impaired, still for such interference, the plaintiff is not entitled to damages as there is no evidence to show that the defendants in exercising their right to introduce the pipes did not act reasonably and in good faith. 5. We cannot say that the finding of the trial judge was not warranted that “The plaintiff was not in fault for refusing to permit attempts at repairing injury not explained to him.” 6. The lessee contends that a structure built in the basement under the sidewalk in October, 1914, and which is used by the city of Boston in connection with its high pressure water system, was a taking of a part of the leased premises by right of eminent domain. This contention cannot be sustained. There is no evidence to show such a taking or any taking by the city; all that appears is that the structure is used by the city of Boston. The evidence fails to show who placed it there, although it is found by the judge that it was not built by either the plaintiff or the defendants. That part of the proviso in the lease which entitles the lessee to a suspension or abatement of “a just proportion of the rent” has no application to the facts as shown by the evidence. The judge made the following finding, “The presence in said space of the structure placed there in October of 1914, is a deprivation of space for which the defendants are liable for a reduction of rent while it is maintained.” As there was no evidence to show that there had been a taking [52] of any part of the leased premises by right of eminent domain or that the structure had been erected under such a right, the defendants are not liable for a reduction of rent, nor would they be liable if it was placed there by a stranger, nor would they be so liable unless it was erected and maintained upon the leased premises by their authority or consent express or implied. The ground upon which the judge made the finding that the plaintiff because of the presence of the structure was entitled to a reduction of rent does not appear in the record. 7. The damages assessed by the presiding judge were fixed at $200 a year, arid the final decree provided that the annual rent reserved in the lease should be reduced by that amount each year during the term thereof. This was erroneous, as the judge did not have power so to change the contract between the parties. If the plaintiff shall be found to be entitled to damages, the final decree should state the total damages assessed in one sum and direct that that amount be paid by the defendants to the plaintiff. The decree must be reversed; the case is to stand for hearing upon the question whether the structure in the basement under the sidewalk was placed there and afterwards maintained by license or authority of the defendants, and, if so, the damages sustained by the plaintiff on account thereof are to be determined. So ordered.