Cawker v. Trimmel

BaeNes, J. Appellants do not claim that the common-law action for waste would lie or that any action would lie on the facts before the court, were it not for the express covenants of the lease. But they argue thai they have the right to lease their property under such conditions as they see fit and they have the right to see that these conditions are fulfilled, no matter whether substantial damage results from their nonfulfilment or not. It may well be doubted whether a court of equity, which ordinarily grants its injunctive relief to prevent irreparable injury and damage, should or would use its remedy to protect purely technical or theoretical rights, but we will not discuss or decide the question because we do not think the proposed action of the defendant runs counter to the covenants of the lease, for the reason that what the defendant proposes to do is not an “alteration” in the leased premises. Ordinarily the word “alteration” as applied to a building means a substantial change therein. It is expressly so held in Comm. v. Hayden, 211 Mass. 296, 97 N. E. 783, and this definition was adopted by this court in Kresge v. Maryland C. Co. 154 Wis. 627, 143 N. W. 668. It is substantially so held in Bigelow v. Worcester, 169 Mass. 390, 48 N. E. 1, where it is said that reshingling a building is not an alteration of it. The foregoing definition is not a hard-and-fast one in [113] tended to apply to all situations, but we think it fairly applies to the one before' us. It was suggested on the oral argument, although no such contention is made in the appellants’ brief, that under the agreements the defendant is bound to use the electric current generated by plaintiffs exclusively for all purposes. The contract does not so provide. It does not mention current that might be used for heating or power purposes. In fact it does not require the defendant to use any current, but he must pay a minimum of $200 a year whether he uses current to that amount or not. If he saw fit to use tallow candles instead of electricity for lighting, he might do so, but he would still have to pay $200 a year for electric current because'he agreed to do so. The real controversy arises over the covenant in the lease which prohibits the tenant from making alterations in the premises without the consent of the lessors. No claim is made that the connection which the defendant proposes to make will result in damage or injury to the building, and the showing made on the motion to dissolve pretty clearly showed that no substantial injury or damage would result. The circuit judge decided that the proposed act of the defendant did not constitute an alteration of the premises and neither did it constitute waste, citing Brock v. Dole, 66 Wis. 142, 28 N. W. 334, and Melms v. Pabst B. Co. 104 Wis. 7, 79 N. W. 738. The first ease arose between landlord and tenant and the second between life tenant and remainderman. In the first case it is said that any- material change is waste, even though it enhances the value of the property. In the second it is substantially held that very material changes may be made by the life tenant, so long as the value of the property is not thereby depreciated. So we have a different rule applicable to the ordinary relation of landlord and tenant from that which applies to life tenant and remainderman. [114] We are not unmindful of tbe claim that an alteration in a leased building resulting in damage thereto would constitute waste at common law and would be enjoined by a court of equity, or of the argument that the word “alteration” in the lease must be given some effect,, and that if it is held to mean change resulting in damage, it might as well have been omitted entirely. Some courts have held that an express covenant prohibiting alterations to be made refers to those changes which a tenant might otherwise make without the consent of the owner. Kunemann v. Boisse, 19 La. Ann. 26; Engle v. Owen, 3 Duer, 15; Denechaud v. Trisconi, 26 La. Ann. 402; Webster v. Nosser, 2 Daly (N. Y.) 186; Whitwell v. Harris, 106 Mass. 532. It may be conceded for the purposes of this case that the principle underlying the decisions in these cases is correct, although the reasoning on which it is based is by no means invulnerable.' These courts must of necessity recognize the rule that there may be alterations which are mate-id al and those which are not, and in this latter class fall these changes which do not result in damage to the landlord, but which none the less are alterations. See note to Abel v. Wuesten, 24 Am. & Eng. Ann. Cas. 393. In all of the cases above cited it was practically conceded that the thing done constituted an alteration. In one of the cases the tenant proposed to put up an addition to the building, and in two of the others partitions were so put in as to make two rooms where there was but one before. The decisions only go to the point that where it is proposed to make an actual alteration in a building when the lease forbids alterations to be made, the courts will prevent the change although the landlord may not be able to show that he would be injured thereby. The eases do not pretend to change or enlarge the meaning of the word “alteration,” but simply hold that actual alterations not harmful will be prevented under an express covenant in a lease prohibiting them. Here the thing proposed is so small and inconsequential that we do not think it could be said that it would consti [115] tute an alteration. If it was shown that damage would result from the act, no doubt the -plaintiffs would have a remedy regardless of the fact that the building or premises were not or would not be altered. If the thing proposed here constitutes an alteration in the building, then we do not see why attaching trade fixtures to the floors or walls, hanging pictures on the walls, placing lights at' convenient places, and many other things which tenants customarily do and are expected to do, would not constitute alterations. When all is said, the tenant was leasing the premises for use and not simply to look at from a respectful distance. There is no other provision in the lease which affects the question before us. If rule 12 has any application to anything other than the telegraph and telephone wires mentioned, then the clear implication is that the tenant has the right to install the- wires, but under the direction of the plaintiffs. Such right is given the plaintiffs in the order appealed from. It seems so obvious that the second .-clause quoted from the lease in the statement of facts has no bearing on the question before us that we refrain from discussing it. By the Gourt. — Order affirmed.