Fuchs v. Koropp

Mr. Justice Freeman delivered the opinion of the court. It is contended in behalf of the defendant that the barn referred to was a part of the leased premises and that the tailing possession of it and removing it constituted an eviction of the defendant from a substantial part thereof. It is further claimed that the act of the plaintiff about the time the lease was made, in barring egress from a rear door of the greenhouse included in the premises described in the lease, from which door a cement walk then extended to an alley in the rear of the lots mentioned in the lease, thus excluding the defendant from access to the alley, amounted to a partial eviction. The lease in question demised “the greenhouses, palm house and store as they are today, together with all appurtenances, situated on Lots 4 and 5,” and it is claimed that the barn and the privileges of access to the alley through a back door of the greenhouse were included in these ‘ ‘ appurtenances. ’ ’ Whether they were such appurtenances or not is a question of fact. It appears from the evidence that the plaintiff has erected a large apartment building which covers the rear 75 feet of lots 4 and 5, upon the front part of which lots are the demised premises, and that said building also covers the site of the barn. It is admitted by the defendant Koropp in his testimony that “when we made the lease Mr. Fuchs told me he was going to put a big apartment building there.” He states, however, that he did not know where the building was to be placed^ although he knew one was to be put “on the corner here,” but did not know where the other was to be. If he considered the barn in his rear and access to the alley as appurtenances under his lease, it is singular that he did not seek definite information. He occupied the premises and paid the rent provided for by the lease for more than two years after the plaintiff took away the barn in controversy and barred egress from the back door of the greenhouse, without making any.objection apparently during that time, and until after expensive buildings had been erected on the premises where the barn originally stood. It does not appear therefore that the barn was at all necessary to the prosecution of the defendant’s business upon the premises described in the lease.. It was used by him at first for a few weeks with plaintiff’s apparent consent to keep his horse and wagon in, as the plaintiff had done before him when carrying on business in the greenhouses that then stood on the adjacent grounds. The defendant Koropp testifies that plaintiff told him when the lease was made the barn was included, that “the barn went with it and I could use the whole place until he put up the building.” He knew therefore that the proposed building would interfere with his use of a part of the “place.” There is testimony tending to show that the barn was only “partly on lot 5, with the lowest part of it, the north line of it, about three or four feet, the rest of it on lot 6.” It is said this is disputed by the testimony of a mason contractor, but his testimony set forth in the abstract does not so indicate. The lease does not purport to demise any part of lot 6 nor any struotures that might be on it. It is rather a violent presumption that the “appurtenances” of the premises described in this lease included adjoining land not therein referred to. The plaintiff did not lease to the defendant all the premises which he had used in the business formerly conducted by him on part of the leased premises before he sold out to the defendant Koropp. Plaintiff’s business had been conducted in a “very large greenhouse” covering “several lots 4, 5, 6 and 7,” and he removed this large greenhouse and other buildings before the lease in question was made. It is not possible therefore to reach the intention of the parties as to this barn “by showing a previous holding of the premises and what the plaintiff enjoyed under it,” as in Thomas v. Wiggers, 41 Ill. 470, cited by defendant’s attorneys. While it is generally true that a demise of premises for residence purposes, describing them by street and number, would probably include as appurtenances a barn and stables on the rear of the lot ->n which the residence stood, the same rule would not necessarily apply to business property, especially where as in the case at bar, the barn and shed were apparently only partly on the land described in the lease. We think the rule here applicable is correctly stated in Patterson v. Graham, 140 Ill. 531, viz.: “that by construction the lease carried so much of the lot on which the building stood as was necessary to the complete enjoyment of the building for the purpose for which it was rented.” Applying this rule, it is we think apparent that the barn and buildings in question were not necessary to the complete enjoyment of the leased premises. The defendants have carried on their business there for years since the barn was removed without complaint and with no claim based on evidence that their enjoyment of the premises described in the lease has not been complete, notwithstanding the taking away of the barn and the shutting off of access to the alley by the rear door of the greenhouse and later by the erection of the building now covering the rear of the lots. We are of opinion therefore for reasons indicated that the buildings and privileges in controversy were not appurtenances of the leased premises and were not within the meaning of that term as used in the lease. It follows there was no eviction and the judgment of the Municipal Court will be affirmed. Affirmed.