Edmison v. Lowry
| Decision Date | 02 June 1892 |
| Citation | 52 N.W. 583,3 S.D. 77 |
| Parties | Edmison et al. v. Lowry. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The owner of a lot abutting upon a street in a city is presumed to be the owner of the soil and freehold of the street in front of such lot to the center thereof, incumbered only by the easement in the public for passing and repassing over the same, and the rights of the municipality to use the same, or permit its use, for municipal purposes, as authorized by law.
2. The rights of such abutting owner in the street in front of his premises for access, ingress, egress, light, and air are peculiar, distinct, and separate from the easement in the public generally in such street, and constitute a part of the property itself.
3. This right of an abutting owner entitles him to a free and unobstructed street to the center thereof, subject to the easement of the public and the rights of the municipality and no one not authorized by law can lawfully obstruct the same or deprive him of free access, ingress, egress, light and air at all times in the same.
4. The lease of property abutting upon a public street carries with it all the easements, incidents, and rights of the owner in such street belonging to said property, unless specially reserved by the lessor in the lease, subject to the equal enjoyment of such rights by other tenants of portions of the same property.
5. The plaintiffs, owners of a three-story brick building fronting on Ninth street, in the city of Sioux Falls, leased the cellar and first story of the same to the defendant for a period of two years. During the term the plaintiffs erected a large stone building on a lot adjoining the leased premises and deposited lumber and other building material in front of the leased premises, and upon a cross walk leading from defendant's sidewalk to the opposite sidewalk, thereby depriving the defendant of free access, ingress, and egress to the front of the leased premises, against the protest and objection of the defendant, and so continued such obstruction in front of said premises for a period of about three months. Held, that such obstructions constituted an actual eviction of the defendant from a portion of the leased premises, and that the payment of rent was thereby suspended during the continuance of such eviction. Held, further, that the defendant was not required to surrender up possession of the leased premises, but could retain possession of the part from which he was not evicted.
Appeal from Minnehaha county court; E. PARLIMAN, Judge.
Action by Percival H. Edmison and James Jameson against George W Lowry for rent. Verdict and judgment for defendant, and plaintiffs appeal. Affirmed.
Wm. A. Wilkes, for appellants. Bailey & Stoddard, for respondent.
This was an action for rent. Verdict and judgment for defendant, and the plaintiffs appeal. The complaint is in the usual form, and demands judgment for rent for the months of August, September and October, 1890, amounting to $225. The defendant admits that the rent for those months has not been paid, and sets up a counterclaim, pleaded by way of recoupment, in substance, that, during the months mentioned, the plaintiffs obstructed the sidewalk and street in front of the premises leased, so as to close up the entrance to the same, and prevent access, ingress, and egress to and from the street to the same, and thereby deprived the defendant of the quiet and peaceable enjoyment of the premises. The facts, as disclosed by the evidence, briefly stated, are as follows: The plaintiffs were the owners of a three-story brick building fronting on Ninth street in the city of Sioux Falls, the first story and cellar of which they leased to defendant to be used as a drug store. The lease was made November 1, 1889, and was for a period of two years, the rent to be paid monthly. During the season of 1890 the plaintiffs erected a large stone building on the corner of Phillips avenue and Ninth streets, extending back on Ninth street to or near to the leased premises. In erecting this building the sidewalk from Phillips avenue along Ninth street to the leased premises was taken up, and a fence erected across the sidewalk on the side of the leased premises nearest the avenue. The defendant, being thus shut off from the avenue,--which appears to be one of the principal business streets in Sioux Falls,--constructed a cross walk at his own expense across Ninth street to the opposite sidewalk, thereby enabling the public to cross the street at that point in front of his drug store, and pass by the same in going to and from the post office on the corner of Main and Ninth streets. There was evidence tending to prove that about August the plaintiffs commenced to deposit lumber on the street directly in front of defendant's drug store, but outside of his sidewalk, and lumber, stone, sand, and other building material in the street upon the cross walk, and so continued to use the street for depositing such building material during the three months mentioned, and for which rent is claimed. There was also evidence tending to prove that carriages and teams were, by reason of this building material deposited in the street in front of said premises, prevented from approaching the sidewalk in front of defendant's drug store, and that the public was prevented from crossing the street on the cross walk erected by defendant, by reason of the obstructions mentioned, during a large portion of the time during those months. There was also evidence tending to prove that defendant's business was greatly injured, and his sales largely diminished, during those months, and that defendant objected to this building material being deposited and kept in front of his premises, and upon this cross walk, and that plaintiffs refused to remove the same, insisting they had the right, as owners of the leased premises, to use the street for depositing the building material therein.
The case was submitted to the jury, with certain instructions, the more important of which are as follows: The giving of these instructions is assigned, with a large number of other alleged errors; but as they are all embraced in these instructions, and the four propositions contended for by the counsel for the appellants, it will not be necessary to further notice them.
The learned counsel for plaintiffs (appellants) contends: (1) That the covenant of quiet enjoyment in a lease relates only to the possession of the leased premises, and is the contract of the landlord that during the term of the tenancy the lessee shall not be evicted. The covenant is only broken by entry and expulsion, or by some actual disturbance of the tenant's possession of the leased premises. (2) That to constitute a breach of this covenant there must be shown an eviction, actual or constructive, from the leased premises or some part thereof; and it must be an act of a permanent character, done by the landlord with the intention of depriving the tenant of the enjoyment of the property. (3) That, in case of a...
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