Davis v. Boyer

• Decision Date: 14 January 1904
• Parties: DAVIS & SHANGLE, Appellants, v. F. D. BOYER et al., Appellees
• Court: Iowa Supreme Court

97 N.W. 1002

122 Iowa 132

DAVIS & SHANGLE, Appellants, v. F. D. BOYER et al., Appellees

Supreme Court of Iowa, Des Moines

January 14, 1904

Appeal from Mahaska District Court.--HON. JOHN T. SCOTT, Judge.

AFFIRMED.

Carver & Wooster and McCoy & McCoy for appellants.

B. W Preston, J. F. & W. R. Lacey, W. W. Haskell, and W. G. Jones for appellees.

OPINION

THE opinion states the case.--Affirmed.

WEAVER, J.

By their original petition Davis & Shangle allege that they are a partnership doing a law and loan business in the city of Oskaloosa; that they are the lessees, under an oral contract for a term of months, of a certain coalhouse appurtenant to their place of business, with the right to use the wall of said coalhouse as a billboard or space for displaying business signs and advertising matter; and that they have sublet the use of the billboard to one F. W. Davis, but defendants have wrongfully interfered with such use by the subtenant, and have torn down the advertising so displayed by him, and threaten to continue said trespass. It is further alleged that defendants are insolvent, and a temporary writ of injunction is prayed to restrain them from the acts complained of. A demurrer to this petition being sustained the subtenant, F. W. Davis, came into the case, joining with plaintiffs in their petition and prayer for relief, and on this pleading it appears a temporary injunction was granted. Defendants thereupon answered, denying the averments of the petition, and moved a dissolution of the writ, which motion was sustained. Plaintiffs then moved to strike the answer because not duly filed. Ruling upon this motion was reserved to be disposed of with the case upon the trial. Thereafter when the case came on for trial, and nearly a year after the answer had been filed, plaintiffs asked leave to amend petition showing an assignment to them from their lessor, The National Building & Loan Association, of all its rights in the coalhouse in controversy, said assignment being dated long after the commencement of this action. The application was overruled by the trial court. Plaintiffs then asked leave to file a demurrer to the answer, and this was also overruled. Upon trial to the court the relief asked by plaintiffs was denied and petition dismissed. Plaintiffs appeal.

The case as made by plaintiffs testimony is substantially as follows (no evidence being offered on part of the defendant) The Building & Loan Association held a lease expiring January 1, 1903, of rooms in the second story of a certain building in Oskaloosa. The rooms were reached by an outside stairway built within the street limits, and leading from the sidewalk to the upper story of the building. The space under the stairway had been inclosed with boards, and utilized as a place to store coal for the use of the tenants of said leased rooms, although it is not mentioned in the lease. Plaintiffs occupy the office rooms under a verbal lease from the Building & Loan Association, and by reason thereof they claim to control "the coalhouse, the inside of it, the outside of it, and every part of it." The defendant Boyer was the tenant of the lower story of the building, and claimed a right to control the use of the wall. The outside of the board wall inclosing the coalroom on the sidewalk seems to have afforded a much prized space for the display of advertising matter. Plaintiffs testify that the use of this space is worth $ 25 per year, and that at the time of the commencement of this action they had just subleased the same for three months for $ 3. Prior to this subletting, the revenue from the billboard seems to have been limited to "tickets to shows"--a usufruct which to some extent justifies the allegation in plaintiffs' amended petition that the value of their rights in the premises "is such as cannot be estimated by the ordinary standard of dollars and cents." It is shown that Boyer,...