Dowling v. Smyley

• Decision Date: 19 March 1928
• Docket Number: 27011
• Citation: 116 So. 294,150 Miss. 272
• Court: Mississippi Supreme Court
• Parties: DOWLING v. SMYLEY. [*]

116 So. 294

150 Miss. 272

DOWLING v. SMYLEY. ^[*]

No. 27011

Supreme Court of Mississippi

March 19, 1928

Division B

Suggestion of Error Overruled April 16, 1928.

APPEAL from chancery court of Harrison county, HON. V. A. GRIFFITH Chancellor.

Suit by J. A. Dowling against Miss Jessie Smyley to compel the execution of a lease and for other relief. From the judgment below, both parties appeal. Affirmed.

Judgment affirmed.

J. D. Arrington, for appellant.

The original lessor, who then owned the Old Harrison County Bank Building, had the two rooms that were leased to the appellant specially constructed for him in the rear and upstairs of the said building, to use as a photograph studio. In conjunction with a photograph studio, the appellant maintained a printing office. He had four signs that were removed, two of which advertised his photographic business, and two his printing business. One of the signs, the main sign advertising his business as photographer, was a wooden sign, about five feet long and one foot wide; it was suspended and displayed by the lessor himself, before appellant had removed into his then new studio. The second sign, was a metal sign, advertising appellant's printing business. The other two signs were painted, and one advertised his printing, and the other, the appellant's photographic business. The last three signs were erected and painted several years after appellant's occupancy of the premises, but with the assistance and express permission of the lessor. Appellee purchased from appellant's lessor, O. D. Gunn, the Old Harrison County Bank Building part of which appellant occupied. Immediately after her purchase appellee gave notice to the appellant that she would want possession of the leased premises in October 1925, when she erroneously supposed the lease would expire. She gave the appellant three notices to vacate the premises. The appellee, in turn, gave notice of his election to renew the lease. There had never been any complaint from other tenants of the building, or by the landlord, of the manner in which the appellant was advertising his business.

Appellant's first assignment of error, is that the court manifestly erred in not finding that the large suspended sign, or the main sign of the appellant, was erected before the appellant went into possession, and before the lease was executed. The second assignment of error, is that the court manifestly erred in not finding that the appellant's right to display signs sufficiently advertising his business passed as an incident to the lease contract. The importance of this assignment of error, is obvious, in view of the court's opinion to the effect that the appellant was without the law in displaying signs, that the right to do so was a mere personal license, revocable at any time, not binding on him (Mr. Gunn, the original landlord) and could not be binding on his successor in title "who did revoke by taking down the signs." What is essential to the enjoyment and necessary for the purpose of the lease, passes as an incident. 36 C. J. 93, sec. 729. This rule applies to a lease of a part of a building. 36 C. J. 30, sec. 632, Landlord and Tenant; Baldwin v. Morgan, 43 Hun. (N. Y.) 3551; Edmison v. Lowry (S. D.), 17 L. R. A. 275; 2 Thompson's Real Property, p. 326, sec. 1244; also p. 179, sec. 1107. Ibid; Bldg. Co. v. Peters Trust Co., 106 Neb. 294, 183 N.W. 302; Hawley and McGregor's Real Property (4 Ed.), pp. 150, 192, quoting: "appurtenances mean a right which passes as an incident of the grant of something else as the principal subject of the grant. In deeds and leases it is restricted to rights and privileges incident to real property, as, for instance, a right-of-way. The use of those words in a lease is unnecessary verbiage since, as we have already seen, when land or a building or a part of a building is leased everything which belongs to, and every right or privilege necessarily incident to the use and beneficial enjoyment of the thing leased passes by the lease, without being mentioned specifically." There are no prohibitory or restrictive clauses or words in the lease that could or might deprive the appellant of his rights under the law, it inevitably follows that the right to use signs passed as an incident to the lease. That they were, and are necessary, the lessor and the lessee were both convinced, and settled in advance.

A display of a sign or signs is necessary for the beneficial enjoyment of the premises by the appellant, and therefore, the right to such passed as an incident to the lease. It is plain and undisputed that the original lessor, appellee's grantor, considered such a necessity, and that it was appellant's right under the lease to use signs. It is impossible to even suppose that the lessor, Mr. Gunn, in erecting and in helping to erect appellant's signs, was granting the appellant a mere personal license as a personal favor. It is needless to cite authorities to the effect that the intent of the parties and their practical construction of the lease is binding on themselves and their successors. 36 C. J., p. 32, Landlord and Tenant, and note 60; Ross v. Henderson, 8 B. C. 36, C. J., p. 28, Landlord and Tenant, quoting: "Rights or interest may pass to a lessee by implication, but the implication which supplies express words absent from the grant arises either from a reasonable necessity or from a manifest intention of the parties upon consideration of all of the circumstances." 5 R. C. L. Supp. 897; Zolezzi v. Bruce-Brown, 49 L. R. A. 1414, quoting: "If there be any doubt as to whether the lease included the outer surface of the wall, that doubt was settled by the practical construction placed by the parties upon their contract. As between themselves, it is clear that the lease to the tenant included the right to erect signs upon the outer face of the walls inclosing his loft." 35 C. J. 1180-1181, secs. 476-477, Landlord and Tenant; 2 Thompson's Real Property, pp. 119, 120, sec. 1050 and note; Greenblatt v. Zimmerman, 117 N.Y.S. 18; Newman v. Supreme Lodge, 110 Miss. 420, 71 So. 739, quoting: "In construing a contract, the surrounding facts and circumstances must be kept in view in order to arrive at the true meaning of the contract." "If the intent of the parties can be ascertained, the courts will effectuate it." Isler v. Isler, 110 Miss. 419, 70 So. 455. "It is permissible in construing a lease to look to the interpretation that the parties thereto have placed thereon, in its performance, for assistance in ascertaining its true meaning. 'No extrinsic aid can be more valuable,'" 16 R. C. L. 701, sec. 189; L. & T. Slack v. Knox, 213 Ill. 190, 69 L. R. A. 606.

The authorities are unanimous that, in the absence of a restrictive provision to the contrary, a tenant has the exclusive right to the use of the outside portions leased for the display of signs. Snyder v. Kulesh, 163 Iowa 748; L. R. A. 1915B, 1059, 144 N.W. 306, 16 R. C. L. 698, 699, secs. 187, 188; L. & T. Lowell v. Strahan, 145 Mass. 1, 1 A. S. R. 422, 36 C. J. 86, secs. 713, 717.

The law itself insures that right to the lessee, unless he consents to be deprived of it. Just v. Stewart, 23 Man. 517 12 Dom. L. R. 65. It is therefore respectfully insisted that the learned court below manifestly erred in not finding that the appellant's right to display signs sufficient for the advertisement of his business, passed as an incident to the lease. The third assignment of error is, that the court manifestly erred in not finding that appellant's right to display sign was a covenant running with the land. All covenants affecting the mode of occupation and enjoyment of the premises leased run with the land. 2 Thompson on Real Property, pp. 284, 285, sec. 1212. It makes no difference whether the covenants are express or implied. Ibid., Vol. 2, pp. 326, 327, sec. 1244; 35 C. J. pp. 1187, 8, sec. 488, Landlord and Tenant, also page 1189, ibid. quoting: "As a general rule all implied covenants involved in a lease run with the land." The covenant for quiet enjoyment is implied in every lease, and binds the lessor's grantee or transferee. 2 Thompson on Real Property, p. 325, sec. 1243. "It is a familiar principle in the law of landlord and tenant that a lessor must be held to have tended that the lease should be beneficial to the lessee and in so far as he is concerned that he will do no act to interrupt the free and peaceable enjoyment of the thing granted it." National Hollow Brake Beam Co. v. Bakewell, 224 Mo. 203, 227, 123 S.W. 561. "It can hardly be doubted, I think, at this day, that, by the general assent of the courts in this state, a covenant for quiet enjoyment is implied in every mutual contract for the leasing and demise of land, by whatever form of words the agreement is made." Mack v. Patchin, 42 N.Y. 167, 174, 1 Am. R. 506; Kemmons v. Crawford (Fla.), 109 So. 505. The covenant binds persons deriving their right or title through the lessor. 36 C. J., p. 76, sec. 696, Landlord and Tenant; Barry v. Halmesly (Ariz.), 210 P. 318; Pattey v. Egan, 200 N.Y. 83, 93 N.E. 267. In our own Code special provisions exist for the protection of lessees against the assignees and grantees of the lessor. Corinth Bank Co. v. Wallace, 111 Miss. 62, 71 So. 266. Appellant's fourth assignment is that appellee was estopped to remove appellant's signs. 36 C. J., page 87, sec. 717; 2 Pomeroy's Equity Jurisprudence, page 1320, sec. 664, and note Fourth Edition; Ibid., Vol. 4, pp. 3982-3985, secs. 1707-9; Ibid., Vol. 2, pp. 1295, 1342, secs. 689, 692; Ibid., vol. 2, secs. 614-625; Ibid. Vol. 3, p. 3120, sec. 1295, and sec. 600; Vol. 2, pp. 1126-7, Fourth Edition. To be enforced in equity, covenants need not "run" with the land. 2 Pomeroy's Equity Jurisprudence, secs. 689, 692; Vol. 3, sec....