Bass v. Metropolitan West Side El. R.

WOODS, Circuit Judge, after malting the foregoing- statement, delivered the opinion oí the court. It is not disputed that injunction is the proper remedy against the appropriation oí land for the use of a public corporation which has not acquired a right to the proposed use either by purchase or by condemnation; and, contrary to the general rule that equitable relief is granted only when equitable considerations require it, the injunction in such cases may be, and perhaps more frequently than otherwise is, sought in vindication of a purely legal right; and, if the technical right and a threatened infraction of it be established, the relief will be granted without inquiry into the general equities of the case. By this we do not mean that a specific equity, like an estoppel, may not be a defense to such a suit; but, if a compiete defense be not shown, the court will not refuse the relief on grounds of equitable discretion, as it might do in a suit for specific performance or rescission or other cause involving no special constitutional or statutory right of such a nature as to be capable of vindication or enforcement only by injunction. “In cases of this character,” said the supreme court of Illinois in Cobb v. Coal Co., 68 Ill. 233, “courts of equity have acted on broader principles [than in ordinary cases], and have adopted as a rule that an injunction will be granted to prevent a railway company from ex [861] ceeding tbe power granted in their charter. * * * The courts do not require when the effort is manifested by a railway company to wrongfully appropriate private property, or force their structures to places not authorized, that there should be a want of remedy at law.” And in Lewis on Eminent Domain (section 632), it is said, in substance, that the jurisdiction of equity in such cases may be placed upon the broad grounds that when the power of eminent domain lias been delegated to public officers or others who are threatening to make an appropriation of private property to public uses in excess of the power granted, or without complying with the conditions on which the right to make the appropriation is given, equity will prevent the threatened wrong, “without regard to the question of irreparable damages or the existence of legal remedies which may afford a money compensation.” The controlling' inquiry in the jiresent case, therefore, is whether the Metropolitan Company, which, it is not denied, has been in rightful possession, has appropriated or is about to appropriate any part of the leased premises to a corporate use which is not justified by the lease. It is not to be doubted that, by consenting to the transfer of the leasehold to the railroad company, the appellant consented to any use of the property which was permitted to the original lessee; but it is not to be inferred that she thereby consented, as it is contended she did, to the particular use proposed, since there were various other railroad purposes which might have been in contemplation, and which in no sense would have been inconsistent with any condition or covenant of the lease. Of the elaborate and forceful argument made here on the part of the appellees the primary proposition is that “the railroad company, being the owner of the leasehold estate and of the buildings upon the premises in question, and in possession of the same, has the right to devote all or any portion of the premises to railroad purposes without resorting to proceedings under the eminent domain act to acquire the interest of the lessor.” As corollary or subordinate propositions, it is asserted that the appellant: has not been damaged by the changes made in the building; that (he bill of complaint is a bill for specific performance, on which relief need not be granted as a matter of absolute right; that neither the railroad company nor its receiver lias violated any covenant of the lease; and that the alterations made in the building and the proposed construc-ción and use of railroad tracks do not constitute waste. In the first of these propositions is the explicit assertion, on which the entire argument mainly depends, that the railroad company owns the building erected upon the leased premises; and the same view finds expression in the opinion of the court below, where, after reference to some of the provisions in the lease, it is said, “In other words, the building now on the premises is subject to a lien for the rents to become due.” While it is true that the intention to give the appellant a lien upon the building, as well as “upon all improvements and tenements, and the materials thereof at any time upon said leased premises,” and on “other property” of the tenant on the premises, is plainly declared, and it is also stipulated that at the end of the term the owner of the fee shall purchase the building or extend the term of the lease, [862] it is clear' upon the Whole instrument that in no event was a removal irom the premises of the building, which the lessee undertook to erect and keep in repair, contemplated. On no conceivable contingency can there arise under the contract a right on the part of the lessee to remove the building, even were it a physical possibility to do so. In contemplation of law, the building was intended to be, and accordingly in the process of construction it became, a part of the realty. “The well-settled rule is that such erections as this become a part of the land, as each stone and brick are added to the structure.*’ Kutter v. Smith, 2 Wall. 491; Elwes v. Maw, 3 East, 38; Tifft v. Horton, 53 N. Y. 380; Sanders v. Village of Yonkers, 63 N. Y. 491; Ford v. Cobb, 20 N. Y. 344; Deane v. Hutchinson, 40 N. J. Eq. 83, 2 Atl. 292; Fortman v. Goepper, 14 Ohio St. 558; Sword v. Low, 122 Ill. 487, 13 N. E. 826; Dooley v. Crist, 25 Ill. 453; Corrigan v. City of Chicago, 144 Ill. 537, 33 N. E. 746. See, also, Hawes v. Favor, 161 Ill. 440, 43 N. E. 1076, cited by the appellees. In legal effect, the contract was that the lessee should erect upon the premises for the lessor a building, and maintain it in good repair to the end of the term of the lease, and that, in consideration therefor (the rent, taxes, and other charges meanwhile having been discharged) the lessor should then pay to the lessee the specified percentage of the appraised cash value of the building, or, at her option, extend the term of the lease. Though in form-the lessor is bound to purchase the building, the evident intention is simply that, in one or the other mode prescribed, she shall make compensation for the erection of the structure, and for keeping it in repair during the term of the lease. As a covenant running with the land, this is doubtless a charge upon the entire property, including the building, and it is difficult to conceive that the building became subject at once to a lien in favor of the lessee and also in favor of the lessor. Against this construction of the lease, it is urged that the declaration of a lien on the building is made meaningless; but it is to be observed that, without a stipulation therefor, the landlord could have no lien on fixtures or other movable property of the. tenant; and, since it is not always easy to determine certainly what is or is not removable as a fixture, it was not necessarily ill advised or unnecessary to include the building in the stipulation for a lien. The proposition being established that the title to the building, like that to the land, is in the appellant, it results that the rights of the parties in other respects must be determined on that basis; that is to say, by the same rules as if the building in its original form of construction, with its corner intact, had been upon the lot when the lease was executed. The contract required that the structure should cover the entire lot, and should cost not less than a stated sum, but it was always competent for the parties to waive any term of the agreement; and when, with the consent of the lessor, and b,v choice of the lessee, a building was constructed at a larger cost than was stipulated, and upon foundations which did not include a part of the lot next to the river, the rights and obligations of the parties became the same as if the actual construction and cost had been specifically required by the lease. And so, if, by the original construction, the northeast corner had been of the shape caused by cutting away the stories above the [863] first, that, being- assented to, would have become the structure of the contract; and the question before us would have been, as suggested >in the opinion below, whether, without the consent of the appellant, the railroad company, by virtue of its rights as assignee of the leasehold estate, could lay its girder and track and run its cars as it proposes to do. The repairs made on the building by the railroad company, after it took possession, were for the most part necessary, and therefore came within the covenant to repair; but if they had been entirely voluntary, and if other improvements were made, whereby the premises have an increased value, the building, nevertheless, remained the property of the appellant. The railroad company did not, by repairing or improving one part, acquire a right to destroy another part; and it is not material to the question of relief by injunction that the floor space of the part removed is small and insignificant in comparison with the space that remains. With all repairs and improvements, the building, as it stood at the instant when the cutting away of the corner was commenced, belonged to the appellant. The title to the space taken and the reversionary right to- the use of it were hers, and, as we conclude, it was not the privilege of the railroad company, without her consent, to remove any part of the structure in order io occupy the space with its tracks, the right to do so not having been acquired by condemnation. The removal of the corner, for. whatever purpose done, it seems clear, on the authorities cited, was an act of waste, which before its commission might have been enjoined. Brock v. Dole, 66 Wis. 142, 28 N. W. 334; Phelan v. Boylan, 25 Wis. 679; Hunt v. Browne, Sausse & S. 178; Davenport v. Magoon, 13 Or. 3, 4 Pac. 299; Kidd v. Dennison, 6 Barb. 9; Agate v. Lowenbein, 57 N. Y. 604; Stetson v. Day, 51 Me. 434; Cannon v. Barry, 59 Miss. 289; 6 Wait, Act. & Def. 238, 239; 28 Am. & Eng. Enc. Law, 870. But whether, in any case where the question is solely one of waste already committed, and no appropriation of property to corporate use is intended, the court would interfere to compel reconstruction or a repair of the waste is not lite present question. If it were, possibly it would he proper to give weight to such equitable considerations as that the appellant’s security is not to he impaired, and to other like suggestions which have been urged; but when, as here, waste has been committed by removing a substantial part of a building which was intended to be a permanent structure, for the purpose of making way perpetually or indefinitely for the track of a railroad, the work of removal is not: to be considered by itself, but as a step iu the execution of a scheme to take property for a corporate use without making compensation, which, as already stated, the court will enjoin, though the right invaded he a purely legal or technical one. Only in that way can the policy of the enactments against the taking of private property for corporate uses without compensation be fully vindicated; and without an order for the restoration of the building to its original form, or, in default thereof, a forfeiture of the lease, the relief would not be adequate or complete. It is, of course, true, as said below, that the leasehold estate is in the entire lot, and that the tenant has possession of all the space [864] above it, as well wliat is not actually filled by the building as wbat is; but, whatever might be thought of the case if the space in question had been open at the start, the tenant, it is clear, had no right to take down the upper stories of the building in order to create the unfilled space; and therefore, as we conceive, it is 'not true, as was further stated, that, while the term of the lease continues, nothing is invaded but the interest of the tenant. There has been already a destruction of property which constitutes a taking in violation of the law of eminent domain as distinctly as would the digging out and removal of earth from the corner of the lot; and, 'besides, the re-versionary interest has been directly affected, and. will be further affected if the proposed location of the girder and track of the railroad be not forbidden. The demand.of the appellant for present relief against the wrong done and intended is not met by the suggestion that, “if the leasehold estate should be extinguished, of course the railroad company would be a trespasser, if it did not remove its girder.” The railroad company might abandon possession, leaving to the landlord the expense both of removing the girder and of reconstructing the torn down corner, with recourse for the outlay upon no responsible party; but, more likely, the trespasser would surrender possession, if at all, only at the end of a litigation, to the expenses and contingencies of which the appellant or her successor in interest ought not, by judicial sanction, to be subjected. The proposed occupation of the premises is shown to be necessary in order to overcome engineering difficulties which otherwise are practically insuperable, but, if it were only a matter of convenience, it •would be equally evident that the occupation is intended to be, and will be, -perpetual, as, doubtless, the public interest will require that it shall be. If, as was stated at the hearing, the charter of the present railroad company is limited to fifty years, that signifies only that from time to time, when necessary, new companies will be organized, to which, in succession, the road and its equipment will be transferred. As against the lessor, such an occupation of her property is wrongful from the beginning. The possessory right is in the lessee, and for that reason, it may be, the railroad company, until the lease shall have ended by lapse of time or-by forfeiture, cannot be dealt with as a trespasser; but, that being so, it is the more important that the remedy here invoked should not be denied. If the lease were for a short term, one year or ten, instead of ninety years, it would be evident that the railroad company has exceeded its privileges as tenant, and has invaded, appropriated, and injured present property rights of the landlord and reversionary interests, which, without consent or proceedings to condemn, it had no right to take or injure. The bill, it is plain, is not one for specific performance merely. It is not a valid objection to our conclusion that it may be difficult, or even impossible by any certain rule, to estimate the compensation which, in a proceeding to condemn, should be awarded the appellant. The decree below is reversed, and the cause remanded for further proceedings. In order to obviate destruction or serious injury to .property, the court may grant . reasonable time for proceedings to condemn.