Postal Telegraph-Cable Co. v. Western Union Telegraph Co.

Me. Justice Gaby delivered the opinion of the Court. The Phenix Insurance Company owned an office building, ten stories high, on the southwest corner of Clark and Jackson streets, having a front of a little more than fifty feet on Clark street, and 216 on Jackson. It demised to the appellant for six years from May 1,1892, a room “ known as Ho. A, in the east half of the street or basement floor,” which occupied the whole Clark street front and about thirty feet on Jackson, and covenanted that “ during said term the lessor will not lease oflices in said building to any other telegraph company for use as a telegraph office without the consent of the lessee.” October 25,1892, the Phenix Company conveyed the whole building, subject to “ outstanding leases,” to the appellee, which now intends to use part or all of the street floor not demised to the appellant, for a telegraph office in its own business. The appellant filed this bill to enjoin such use. This covenant means what it says, in equity as well as law. Chitty, Cent., 104 Ed. 1874; Bishop, Cont. Sec. 427; 2 Parsons, Cont., 494; 2 Kent, Com., 554; Kerr, Inj., 389. Ho ingenuity could frame a declaration in covenant, by which the use by the Phenix Insurance Company, or by any grantee of that company, as a telegraph office of any portion of the building not demised to the appellant, could be made a breach of the covenant copied. The restraint goes no farther than the words extend it; it is as easy to conjecture that the Phenix Company would not have consented to any more, as that the appellant desired more. The covenant does not run with the land, and it is of a class not to be extended by construction. Norcross v. James, 140 Mass. 188, where a great deal of learning is collected. The bill was properly dismissed and the decree is affirmed.