Kraft v. Welch

McClain, J. Tbe leased premises consist of a piece of farming land, and tbe lease contains these provisions: “Said land not to exceed three acres, and to be used for creamery purposes. * * * This land is rented to be used for creamery purposes by said Welch Bros., who shall also have tbe right to 696 build a store building on said land in connection with said creamery.” Plaintiff alleges that defendants have already built the store building authorized by the lease, and other buildings not authorized thereby, and are now proposing, and proceeding to build on the same premises a two-story frame building, the lower room thereof to be used as a farm implement warehouse and storage room for buggies, and the second story to be used for a hall; and the petition contains, in addition, the 'usual allegation as to great and irreparable injury, and the want of any adequate and speedy remedy at law. The designation in the lease of the purpose for which the premises may be used amounts to a covenant not to use them for other purposes. See De Forest v. Byrne, 1 Hilt. 43, which was an action at law for breach of covenant in a lease of premises “to be occupied as a lumber yard” by erecting buildings thereon which subjected the premises to the payment of a water tax>, which the plaintiff was compelled to satisfy, and the court says: “This was an express covenant to occupy the premises as a lumber yard. * * * The erection of the-buildings, therefore, was a wrongful act, and, defendant having thereby imposed a permanent charge upon the plaintiff’s, property, which he refused to pay off, the plaintiff was forced to discharge it to release the property, and has a claim against the defendant for restitution;” and this statement of the law .is quoted with approval in Gillian v. Norton, 33 How. Prac. 373. There could have been no occasion to specify in the lease now before us the purposes for which the premises were to be used, unless it was intended that this specification should be restrictive. All other uses were, by necessary implication, prohibited. Farwell v. Easton, 63 Mo. 446. Construing these provisions in the lease as a covenant, the question is whether plaintiff can have an injunction co restrain a breach thereof. It seems to be well settled that a landlord is not confined to his remedy at law by action for damages, which in such a case as this would be practically in 697 effectual, nor is he required in order to make a covenant-available, to have provided for a forfeiture, but he may have relief in equity. As is stated in Gillian v. Norton, supra, “this court has frequently restrained a lessee from using demised premises in opposition to his covenant,” citing Howard v. Ellis, 4 Sandf. 369; Dodge v. Lambert, 2 Bosw. 570. And in Steward v. Winters, 4 Sandf. Ch. 587, it is held that, where there is an express stipulation in the lease as to the use,, an injunction will be granted, although, on the facts presented, it is not clear that there is a serious injury, and it is manifest that the extent of the injury is difficult to be-ascertained or measured in damages. So it is said in Maddox v. White, 4 Md. 72, that a bill in equity will lie for an injunction to prevent lessee “from converting the demised premises to uses inconsistent with the terms of the contract, and from making material alterations for such purposes, as also-from committing other kinds of waste.” That an injunction to prevent an act of a tenant in violation of the covenants off his lease will be granted, whether constituting waste or not,, see Taylor, Landlord and Tenant, section 691; 2 McAdam, Landlord & Tenant (3d ed), 1429; De Wilton v. Saxton, 6 Ves. 106. There seems to be no reason why this equitable-doctrine should not be invoked by plaintiff, and we are of the-opinion that the demurrer to his petition was improperly-sustained. — Reversed. ■