Owsley v. Hamner

• Decision Date: 09 February 1951
• Court: California Supreme Court
• Parties: , 24 A.L.R.2d 112 OWSLEY et ux. v. HAMNER et al. L. A. 21295.

Page 263

227 P.2d 263

36 Cal.2d 710, 24 A.L.R.2d 112

OWSLEY et ux. v. HAMNER et al.

L. A. 21295.

Supreme Court of California, in Bank.

Feb. 9, 1951.

George R. Maury, S. L. Kurland and Alden F. Houck, all of Los Angeles, for appellants.

Murchison & Myers, R. Bruce Murchison, John Bricker Myers and Claude B. Cumming, all of Los Angeles, for respondent.

CARTER, Justice.

This is the second appeal in this case, see Owsley v. Wheland Drug Co., Inc., 83 Cal.App.2d 454, 189 P.2d 50. Plaintiffs are the owners of a two-story business building at the northwest corner of the intersection of Kinross Avenue, a street running east and west, and Broxton Avenue, a street running north and south in University Village, Westwood Hills, Los Angeles County. They acquired the property by purchase in 1945. The street level floor of the building consists of a store at the southeast corner of the building facing east on Broxton, and south on Kinross, referred to as store No. 1. Also facing south on Kinross are stores No. 3 and No. 4, the latter on the west side of the building. The portion of the building store No. 2 leased to defendant by plaintiffs' predecessor, is the north side thereof, facing east on Broxton. Between stores No. 1 and No. 3 a passageway extends from Kinross north to the center of the building and store No. 2, where it turns east and runs between stores 1 and 2 to Broxton. At the turn or elbow the area is enlarged into what is referred to as a patio which is open to the sky through the second story of the building. The remainder of the passageway is covered by the second story. The passageways and patio are permanent in character and designed as such.

In June, 1929, plaintiffs' predecessor-owner of the building, executed as lessor, a lease to defendant of store No. 2 for men's furnishings business describing it as: 'That certain store space on the first floor of the University Professional Building floor of the University Professional Building, the intersection of Broxton Ave., and Kinross Ave., in University Village, Westwood Hills, County of Los Angeles, State of California, said store premises hereby leased having total square footage of approximately 3,000 sq. feet and frontage of approximately thiry (30) feet on Broxton Ave., just North of the entrance to Building, store including mezzanine and basement and running through to the alley. Also room 17 18 to be used as shoe store. Also approximately 440 sq. feet on second floor to be used as tailoring shop or executive offices as long as the business shall warrant same in the judgment of lessee * * *.'

It is recited in the lease, and such was the fact when the lease was made, that the building in which the leased premises were located, was under construction by the lessor and the latter agreed, that in '* * * placing wiring, arranging entrances, stairway to the mezzanine, ventilators, plumbing electrical outlets, fixtures etc. their architect will cooperate with the architect of the lessee, so as to conform to lessee's plan for the placing of store fixtures. Also to install oak plank flooring, windowbacks, windows and lighting fixtures as per sketches to be supplied by lessee; to fir down to all cabinets, and install all partitions and closets, steam heat and hot water, electrical outlets where required, fireplace (imitation) and gas connections, two toilets and one shower.' The lease provided for a rental consisting of a percentage of the proceeds from the business conducted on the premises and the usual covenant of quiet enjoyment.

The court found that prior to the execution of the lease, negotiations were had between defendant-lessee and the owner. Defendant inspected the building while under construction, was shown the blueprints governing the construction, and the building was so constructed with the passageways, patio and display windows and entrances as heretofore mentioned, and has existed in that manner to the present. Thus, as constructed in 1929 by the owner, and as contemplated when the lease was made, store No. 2 occupied the north 30 feet of the building with a 30 foot frontage on Broxton, the patio extended into the south line of the store some distance, and show windows and entrances were on the south side of store on the patio and passageway from Broxton. There was also an entrance and show windows on Broxton.

Plaintiffs, in their complaint, contend they have the right, and intend to close the passageways, except for a small portion extending from Broxton, and all of the patio, or at least a part thereof, and utilize them for other purposes.

The court found: 'That the defendant * * * is, * * * the lessee, * * * of Store No. 2 and of three rooms on the second floor, as well as certain space on the mezzanine floor and in the basement, as more particularly described in said lease, * * * that Store No. 2 was occupied by subtenants of the defendant * * * in the operation of a men's clothing and furnishing store; and that the remainder of the said leased premises was occupied by the defendant * * * for use as a tailor shop, work rooms and sales rooms. That the said lease was for an original term of ten years with two additional ten-year terms at the option of the defendant * * * that the first option was exercised and the said defendant intends to exercise the second option so as to extend the lease term to November 1, 1959. * * *

'That the patio is obviously designed, constructed and decorated as a permanent and integral feature of the building. That the closing of the Knross entry and expansion of Store No. 1 would interfere with and deprive the defendant Jack Hamner and his subtenants of light, air, and the public's view of the seven (7) display windows, and interrupt egress and ingress through the two doorways, all of which windows and doorways open on the said patio. That the continued use of the patio as it now exists for purposes of light, air, access and public view of the display windows, is of substantial and material value to the leasehold interest of the defendant Jack Hamner. * * *

'That the patio is and has been in constant use by the general public, and is used as a shortcut between Broxton and Kinross Avenues. That the use thereby causes many people to pass by the seven display windows in said patio, all of which is of material financial benefit to the business being conducted in defendant's leasehold premises, and of substantial value to the leasehold.

'The Court finds that the continued existence of the building as it now exists, including the uninterrupted use of both the Kinross and Broxton entrances, is necessary to the full and beneficial use of the protion of the premises leased to the defendant Jack Hamner, and that the use of the windows and display purposes, and for light and air, is of substantial benefit to the said defendant.

'The Court further finds that if the Kinross entry to the patio was closed and the patio area reduced in accordance with the plan outlined in green lines, as shown in Exhibit 1 attached to the Complaint and as set forth in plaintiffs' second cause of action, the defendant * * * would still suffer material and substantial loss in the business conducted in his leasehold premises, as such construction would obstruct all view of the display windows from Kinross Avenue, thus losing their value entirely, inasmuch as said windows are not clearly visible from Broxton Avenue; that such construction would destroy the shortcut feature of the patio and thereby discourage and prevent the public's use of the patio, and thereby destroy the display value of the windows; that the proposed change would destroy the beauty and the character of the building and create a narrow 'hole' accessible only from Broxton entrance; that the general public would have no inducement to enter such narrow cul-de-sac, and that the light and air to his patio windows would be greatly diminished; all of which would be to the substantial detriment of the Defendant Hamner, and materially depreciate the value of his leasehold.

'The Court further finds that when the lease to the said premises was entered into * * * that it was the manifest intention and the agreement of the parties thereto that the defendant * * * should have the occupancy of the interior areas described in his lease, and should also have the use of the patio as a source of light and air to his windows and doors opening thereon; for display of merchandise in the said windows; for room for customers and the general public to have convenient access to such windows; and for the free flow of pedestrian traffic through the patio by means of both the Broxton and Kinross entries. The Court finds that all of these things are reasonably necessary for the full and beneficial use of the interior store areas described in the lease to the defendant Jack Hamner. These facts were apparent to and were known by the plaintiffs when they acquired title to the property.'

Thus the easements claimed by defendant to exist in the patio (floor area and upward to the sky) and the ways to both Kinross and Broxton were based in part at least on the doctrine of implied easements; no mention is made of such easements on the face of the lease. Plaintiffs contend, that in this state, there are no implied easements arising from a lease and running to the benefit of the lessee, relying upon § 820 of the Civil Code, reading: 'A tenant for years or at will has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired, or by the last section.'

Without mentioning that code section, it has been repeatedly held (and the rule is practically universal), as expressed by this court in Bellon v. Silver Gate Theatres, Inc., 4 Cal.2d 1, 10, 47 P.2d 462, 467: 'A lease of a part of a building passes with it, as an incident thereto, everything necessarily used with or reasonably necessary to the enjoyment of the part demised. * * *...