Fletcher v. Pfeifer

• Decision Date: 29 April 1912
• Citation: 146 S.W. 864,103 Ark. 318
• Parties: FLETCHER v. PFEIFER
• Court: Arkansas Supreme Court

146 S.W. 864

103 Ark. 318

FLETCHER v. PFEIFER

Supreme Court of Arkansas

April 29, 1912

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed, and complaint dismissed.

W. L. & D. D. Terry, and Rose, Hemingway, Cantrell & Loughborough for appellants.

1. A lease of a building does not carry the soil under to any depth. 25 Ark. 441; 18 Utah 464; 68 A. 950; 35 S.E. 271; 118 Mass. 125. But if it did the landlord would have a right to make any use of the reversion that did not disturb or injure the tenant's use of the leased premises. 36 Ga. 97 104-5; 31 W.Va. 621; 56 Mo.App. 133; 45 N.J.L. 37; 140 N.C 422, and many others.

2. There was no breach of the covenant, nor eviction. 2 Devlin on Deeds, 1729; 168 N.Y.S. 1073; 31 N.Y.S. 25 (Sweeny) ; 2 Tiffany, Land. & Ten., § 184; Rawley on Cov., § 91; 24 Cyc. 1059; 2 Underhill on Land. & Ten. 699.

3. An actual eviction, an ouster, is necessary to constitute a breach of the covenant. A mere trespass is not an ouster. 90 N.Y. 293; Tiffany on Landlord & Tenant, 1263; 24 Cyc. 1129; 2 Underhill on Landlord & Tenant 1131, 1157, 699; 31 N.Y. 514; 36 Ark. 316; 84 N.Y.S. 287; 88 Id. 1049; 2 Sandf. 316; 147 Ill.App. 487.

4. No damage nor injury is shown. Irreparable damage or injury must be shown, or injunction will not lie. The proof shows the excavation and underpinning can be done with perfect safety. 2 Underhill on Landlord & Tenant 1188; 1 High on Inj., § 1; 60 A.D. 344; 7 Johns. Ch. 315; 187 N.Y. 243, 252; 148 Id. 347; 61 N.Y.S. 743; 4 Md. 98; 75 Ark. 286; 78 Id. 408; 93 Id. 101; 67 Id. 413; 33 Id. 637; 71 Id. 304; 35 Id. 184-7; 36 Id. 481; 29 Id. 340; 30 Id. 128; 14 Id. 339; 20 Id. 610; 62 Id. 360; 56 Id. 612; 57 Id. 387-396.

J. H. Harrod and J. W. Blackwood, for appellee.

1. The lessors, by their lease, surrendered their right to use the leased property for any purpose during the life of the lease. The lessee becomes the absolute owner for the term granted. Taylor on Landlord & Tenant, §§ 15, 108, 178; Wood on Landlord & Tenant, note to § 357 and § 357; 41 A. 1001; 75 Mo.App. 237; 33 Cal. 299; 1 Cyc. 784. The lease carries with the building the land on which it stands. 113 Mass. 481; 22 Pick. 401; 128 Mass. 487; 37 Conn. 229; 13 Met. 109; 42 Ala. 356; 175 Ill. 514; 37 Minn. 4; 1 Pingrey, Real Prop., § 489; Tiffany on Landlord & Tenant 269.

2. The lessors have no right of entry. Tiedeman on Real Prop., § 176; Taylor on Landlord & Tenant 172; 1 Washburn on Real Prop. 466-7; 6 Cur. Law, 359; 18 A. & E. Enc. Law 225; 55 Ark. 186, 389.

3. When a landlord by excavation injures the walls of the leased premises the tenant can recover without alleging negligence. 24 L. R. A. (N. S.) 423; 14 Ill.App. 173; 93 N.E. 267.

4. The breach of the covenant of quiet enjoyment was broken, and injunction will lie even to prevent a threatened injury or eviction. 24 Cyc. 1129; Tiffany, Landlord & Tenant, 1263; Underhill on Landlord & Tenant 1131; 31 N.Y. 514; 36 Ark. 316; 4 N.Y.S. 316; 147 Ill.App. 487.

5. Injunction is the proper remedy. 24 Cyc. 764; 2 C. P. Div. 572; 81 Mo.App. 1; 14 Phila. 655; 44 Ia. 327; 80 Ky. 391; 44 Am. Rep. 484; 83 Ark. 153; 4 Pom., Eq. Jur., § 1351; 41 A. 1001; 71 Ky. 650; 20 Cyc. 1072; 6 L. R. A. 856. It always lies to prevent an irreparable injury. High on Inj. 120; 35 Ark. 184-5; 36 Id. 481; 29 Id. 340; 30 Id. 128; 1 Thompson on Negl. 280.

MCCULLOCH C. J. HART and FRAUENTHAL, JJ., dissent.

OPINION

MCCULLOCH, C. J.

Defendants are the owners of a space of ground in the city of Little Rock one hundred feet wide, fronting east on Main Street, and running to Fourth Street on the south. The whole is covered by brick store buildings. The building on the south or Fourth Street side contained two storerooms, with a partition wall between, the north wall of which constituted the wall of the next building. In the year 1902 defendants leased those two stores to the plaintiffs for the term of ten years, with the privilege of renewal for a certain term at the end of the specified period. The contract (omitting portions immaterial to this controversy) reads as follows:

"The lessors have leased to the lessee the building containing the two stores numbered 324 and 326, on the northwest corner of Main and Fourth streets, in the city of Little Rock, Arkansas, for the term of ten (10) years, commencing on the first day of September, 1902, for which the lessee agrees to pay three hundred ($ 300) dollars per month on the first day of each and every month during said term. The lessee shall have the privilege at its own expense to make any changes in the said stores which it may desire, all improvements to be made in a good and substantial manner, and no change shall be made that will weaken said building or impair the value thereof, and at the end of said term all improvements which the lessee shall make on said building shall belong to the lessors. * * * All necessary repairs to the roof of said building shall be made by the lessors when notified by the lessee that such repairs are needed; and if the lessors shall fail to make such repairs within a reasonable time after being notified, the lessee may make the same and charge the cost thereof to the lessors, which charge shall be taken as liquidated damages for such failure to repair roof. In case the said building shall from any cause--not the fault of the lessee--become unfit for occupancy, then the lessors shall within a reasonable time repair the said building or replace the same with a like or other building as in their judgment may seem best, and the rent shall cease until such repairs are made or such building is rebuilt--and in case said building is replaced by one which shall cost more than ten thousand dollars ($ 10,000), then the lessee shall pay an increased rent at the rate of ten (10) per cent. per annum upon the cost of such building above ten thousand ($ 10,000) dollars. * * * The lessee shall take good care of said property and keep the surface of the floor and ceiling in good repair, and shall at the end of this lease return the same to the lessors in good condition, the ordinary wear and casualties incident to such property being excepted."

Plaintiffs have continuously occupied the stores, and now occupy same, for the purpose of operating a retail store. Defendants recently made plans for erecting a new building, seven stories high, with basement, on the entire hundred feet of space, which plans contemplated tearing down the buildings on the sixty feet north of the Pfeifer building, and the extension of it south to Fourth Street as soon as the lease to plaintiffs expires. The contract was let for tearing down the old building and constructing the new, and this work progressed to the extent of tearing down the old building and excavating to the depth of about fifteen feet for the foundation and basement. The bank of earth, three feet wide at the top and sloping downward to about eight feet at the bottom, next to the wall of the Pfeifer building, was left undisturbed. The foundation of the wall of the Pfeifer building extends only a foot or two in the ground; and, as the excavation extends about twelve feet below it, the plans contemplate that the wall is to be protected by underpinning, that is to say, by excavating narrow spaces at intervals under the wall and building piers until all the space is filled so as to form a solid wall, thus carrying the wall down to the depth of the excavation for the new building. Plaintiffs objected to the excavation under the wall of the building which they occupied, and instituted this action against defendants to restrain them from excavating under the wall. They allege that "going under the said wall is dangerous, and is likely to cause the said building to fall and to cause plaintiffs great and irreparable injury by killing and injuring plaintiffs, their employees and customers, who resort there for the purpose of trade."

Defendants answered, denying that the proposed excavation under the wall for the purpose of underpinning will endanger the building occupied by plaintiffs, or that it will interfere with plaintiffs' use and enjoyment of said building.

On final hearing, the chancellor decided in favor of plaintiffs, and entered a decree in accordance with the prayer of the complaint.

The evidence is undisputed that the underpinning of the wall can be made with safety, and that the fears of plaintiffs that said work will endanger the building which they occupy or interfere with their quiet enjoyment thereof are groundless. Several skilled architects and engineers appeared as witnesses in the case, and each stated that the underpinning can be safely accomplished, and that that is the proper and practical method to adopt in dealing with the situation. The only danger, according to the testimony, is in allowing the wall to remain in its present condition of insufficient protection. The evidence also shows that what the architects term the "cantilever system" can be adopted, whereby the old wall can be protected and the new building constructed without going under the old wall, but this is shown to be very much more expensive than underpinning the old wall and would also sacrifice basement space in the new building.

The state of the case, therefore, is that the defendants propose to go under the wall of the building leased to their tenants, the plaintiffs, for the purpose of protecting it from danger on account of the excavation already made and yet to be made by the new building, also for the purpose of placing the footing for the wall of the new building, and that it can be done with safety and without actual injury to plaintiffs' use of the leased building.

Plaintiffs insist that, as lessees, they have the exclusive...