Bo Kay Chan v. Gerdon Land Co.

• Decision Date: 24 April 1951
• Court: California Court of Appeals Court of Appeals
• Parties: BO KAY CHAN et al. v. GERDON LAND CO. et al. Civ. 14727.

Page 1

230 P.2d 1

103 Cal.App.2d 724

BO KAY CHAN et al. v. GERDON LAND CO. et al.

Civ. 14727.

District Court of Appeal, First District, Division 2, California.

April 24, 1951.

Hearing Denied June 18, 1951.

Charles McLaughlin, San Francisco, Alfred J. Harwood, San Francisco, of counsel, for appellants.

Russell P. Tyler, San Francisco, Harold L. Levin, San Francisco, of counsel, for respondents.

GOODELL, Justice.

This appeal was taken from an order granting a preliminary injunction.

Appellant Gerdon Land Co. is the owner of a piece of property in San Francisco on the westerly side of Grant Avenue between Sacramento and Clay Streets, with a frontage of 45.10 feet on Grant Avenue and a depth of 110 feet running through to the easterly line of Waverly Place.

On September 30, 1946, a lease written in Chinese characters was made by the Land Co. to the plaintiffs, of a part of the premises for the term commencing October 1, 1946 and ending September 30, 1954, at the monthly rental of $300, for restaurant purposes. The father of the plaintiffs had occupied the same premises as a restaurant for many years before 1946.

The property is divided into three main parts. The Grant Avenue frontage of 45.10 feet is, roughly, in three 15 foot subdivisions. The northernmost 15-foot frontage is a store numbered 729 Grant Avenue; the middle 15-foot frontage is a store numbered 727, and the southernmost 15-foot frontage, numbered 723-725, is the corridor entrance to plaintiffs' restaurant which occupies the westerly part of the building in the rear of all three 15-foot frontages.

There is a light-well near the center of the building, occupying an area 12 by 15 feet immediately back of the store numbered 727, which well the plaintiffs claim is part of their leased premises, while defendants claim the contrary.

For some time a screen door had led from the restaurant into the light-well, which among other things enabled the restaurant's employees to go into the well for a breath of air. In the wall opposite, a window opened from the kitchen into the light-well, supplying air and light to the kitchen. Sunken beneath the floor of the light-well were three concrete tanks which formerly were used by the restaurant for the storage of food.

The floor of the well was about 3 feet below that of the stores and restaurant, and steps connected the higher with the lower level at the doorway. In October, 1948, defendants extended the floor of the store at 727 Grant Avenue across the light-well, thereby raising the floor of the well about 3 feet and cutting off access to the 3 concrete storage tanks. Defendants also boarded up the door-way into the well, thereby cutting off access thereto from the restaurant and removing one source of air, and they also made a change in the window. Over the well they built a new ceiling or roof.

The plaintiffs, claiming these acts to be a clear breach of the implied covenant of quiet enjoyment and an invasion in other respects of their rights as lessees filed this suit for an injunction. A restraining order was issued which was purely prohibitory in its terms. On the hearing for a preliminary injunction oral testimony was taken, supplemented by affidavits. The court in the preliminary injunction made a 'finding' that the plaintiffs, by their use and occupancy of the light-well area, 'have acquired an easement and legal right to use said area for the purposes hereinabove mentioned' (ventilation and as a recreational area for the employees of plaintiff) and enjoined the defendants (1) from in any wise interfering with the rights of the plaintiffs to use such area 'and from preventing egress or ingress from said light well area in and to the demised premises in possession of the said plaintiffs' and (2) ordering the defendants to 'forthwith remove all structures and other buildings, pertinances [sic] and property from said lightwell area and shall restore and reconstruct the former entrance from the said demised premises in and to said area and the windows separating the said demised premises from said lightwell, all of which shall restore the said lightwell in the same position and condition as it existed prior to the erection of the building and addition in said lightwell area by said defendants, as more particularly referred to in the complaint on file herein.'

The part of the injunction numbered (1) is, of course, purely preventive and prohibitory, while (2) is entirely mandatory.

Whether the light-well was part of the leased premises was the basic issue in this case and one which could be decided only after a trial on the merits and after findings had been made on every material issue. Upon the solution of that question hinges the question of the landlord's right to make the changes in the light-well.

The injunction contains the 'finding' of the acquisition by plaintiffs of certain rights in the light-well, and that question, likewise, could be decided only after a trial.

There is another issue which could be decided only after a trial, namely, that raised by the plea of estoppel based on the...