Pub. Serv. Co. of New Hampshire v. Voudoumas

• Citation: 151 A. 81
• Parties: PUBLIC SERVICE CO. OF NEW HAMPSHIRE v. VOUDOUMAS.
• Decision Date: 28 June 1930
• Court: New Hampshire Supreme Court

151 A. 81

PUBLIC SERVICE CO. OF NEW HAMPSHIRE

v. VOUDOUMAS.

Supreme Court of New Hampshire. Strafford.

June 28, 1930.

Transferred from Superior Court, Strafford County; Young, Judge.

Two actions by Luetta Voudoumas against the Public Service Company of New Hampshire to recover possession of two stores. Facts agreed, and cases transferred without ruling.

Judgments for defendant.

Two actions in each of which it is sought to recover possession of two stores in a business block in Milton. The first is a possessory action under the landlord and tenant statute (P. L. c. 357, §§ 12-25), which was begun in the municipal court of Farmington (Wiggin. J.) and transferred to the superior court upon the plaintiff's appeal from an order dismissing the action and entering judgment for the defendant. The second is a writ of entry instituted in the superior court to recover possession of the same premises. Facts agreed. The question whether the plaintiff is entitled to recover in either or both actions was transferred without ruling by Young, J.

The facts are the same as those reported in Voudomas v. Bragg, 83 N. H. 270, 141 A. 304, and Young v. Voudomas, 84 N. H.——, 147 A. 896, except as hereinafter noted. Upon April 2, 1929, the plaintiff succeeded to the rights of the Great Falls Manufacturing Company as owner of the land upon which the building in question stands. This building is owned by Walter E. Young, the plaintiff in the second case above referred to, and his ownership, with the right to dispose of the building at the termination of his tenancy, is recognized by the plaintiff herein. Young maintains his building upon the plaintiff's land as a tenant at will, and the plaintiff makes no complaint of his continued tenancy, and has taken no steps to terminate it The defendant is in possession of the two stores in question by virtue of a renewal of a written lease from Young's predecessor in title. Since March 24, 1927, Young has desired to terminate her tenancy. July 2, 1929, the plaintiff gave to Young a power of attorney, authorizing him to institute and prosecute in its name, but at his own expense, any and all proceedings necessary to expel Voudoumas from her occupation of said stores, and it is understood that Young is to pay all expenses and costs incident to the present suits. The plaintiff disclaims any interest in the quarrel between Young and the defendant, and has stated that its "only purpose in giving him the power of attorney was to enable him to conduct his own affairs in any way he saw fit in so far as the building is concerned." Other facts appear in the opinion.

Conrad E. Snow, of Rochester, for plaintiff.

Cooper & Hall and G. S. Hall, all of Rochester, for defendant.

BRANCH, J.

Both the statutory action and the writ of entry are essentially possessory in character (P. L. c. 357, §§ 13, 14; Cheever v. Roberts, 82 N. H. 289, 292, 133 A. 22), and in this case the right of possession alone is involved. There is no dispute in regard to the legal title to the stores here involved, and all technical questions as to the propriety as to the forms of action employed by the plaintiff have been waived by the defendant. Since the defendant now occupies the premises, the plaintiff can succeed only by showing that it has a better right to immediate possession. Cheever v. Roberts, supra, and cases cited; Spaulding v. Bartlett, 55 N. H.

304. 307.

The facts now reported remove the uncertainty, to which reference was made in Vou domas v. Bragg, 83 N. H. 270, 272, 141 A. 304,

305, in regard to the ownership of the building in which the stores are located. It now appears that Young is the owner of the building, with the full right to dispose of it as he sees fit. In the opinion last referred to, however, it was held that "the lease does not purport to deal solely with the building but includes the lessor's right, limited though it may have been, to occupy the land." The present case has therefore been argued by both sides as though Young were a tenant at will of the plaintiff of both land and building. The defendant bases her claim of right to the possession of the premises upon the lease from Young to her. The plaintiff places reliance upon the statement of this court in Voudomas v. Bragg, supra, that "no tenant at will can create 'any estate in another which will avail against the owner of the land.'" The extent of the right of a tenant at will to sublet a portion of the leased premises is therefore presented.

Generally, in the absence of a covenant to the contrary, a lessee has the right to sublet the whole or a portion of the leased premises. 16 R. C. L. tit. Landlord and Tenant, § 374; note to Braunstein v. McGrory, etc., Corp. (93 N. J. Eq. 419, 116 A. 707) in 23 A. L. R. 133, 135. The only limitation on this right at common law is that they shall not be sublet to be used in a manner inconsistent with the terms of the original lease or injurious to the premises. 23 A. L. R. 139, note, supra. The plaintiff contends, however, that this right does not extend to tenancies at will.

It is well-settled law that a tenancy at will cannot be assigned or transferred. Voudomas v. Bragg, supra; Austin v. Thomson, 45 N. H. 113, 120; Whittemore v. Gibbs, 24 N. H. 484, 488, 489. It is also true that, in connection with this rule, it has often been stated that a tenancy at will cannot be sublet, but actual authority in the decided cases for the latter assertion is lacking, unless a subletting is regarded as the equivalent of an assignment or a transfer. In the note above referred to it is said: "A tenancy at will, being determinable at any time, cannot be assigned or sublet by the tenant to another" (23 A. L. R. 145), and cases from twelve jurisdictions are cited in support of this statement. In some of them the rule is only stated arguendo; in many of them no mention of subletting is to be found; and all in which the rule is the basis of decision are cases in which the tenant at will had undertaken to transfer all his rights or in which" his rights had been terminated before the owner took action against the sublessee. The citations follow: Hunnicutt v. Head, 179 Ala. 567, 60 So. 831; McLeran v. Benton, 73 Cal. 329, 14 P. 879, 2 Am. St. Rep. 814; Packard v. Cleveland, C, C. & St. L. R. Co., 46 Ill. App. 244; Jackson v. Hughes, 1 Blackf. (Ind.) 421; Cunningham v. Holton, 55 Me. 33; Cooper v. Adams, 6 Cush. (Mass.) 87; King v. Lawson, 98 Mass. 309; Holbrook v. Young, 108 Mass. 83; Howland v. White, 48 Ill. App. 236; Meier v. Thiemann, 15 Mo. App. 307; Reid v. Gees, 277 Mo. 556, 210 S. W. 878; Whittemore v. Gibbs, 24 N. H. 484; Austin v. Thomson, 45 N. H. 113; Reckhow v. Schanck, 43 N. Y. 448; Say v. Stoddard, 27 Ohio St. 478; Doak v. Donelson, 2 Yerg. (Tenn.) 249, 24 Am. Dec. 485; Pinhorn v. Shuster, 8 Exch. 763, 155 Eng. Reprint, 1560.

Of course, a landlord, by terminating the tenancy at will, may incidentally destroy the rights of the undertenant. Such was the situation in Clark v. Wheelock, 99 Mass. 14, upon which the plaintiff strongly relies, and the court there apparently regarded it as necessary that the tenancy be terminated before the undertenancy could be affected, for the notice to quit given by the landlord to the undertenant was held to be sufficient only because it was decided that it bound the tenant also. The court there said (page 15 of 99 Mass.): "Kern (the tenant at will), having surrendered the occupation to Wheelock, notice to the latter would affect both him and Kern." No case like the present has been cited and none has been found in which the landlord has sought to oust an undertenant of a portion of the premises while permitting the tenant at will to remain in possession of the rest. We are called upon to consider whether he has a legal right to do so.

A great deal of unguarded language has been used by courts and text-writers in regard to tenancies at will. One extreme example will suffice for our purposes. In Doak v. Donelson (1829) 2 Yerg. 249, 24 Am. Dec. 485, the Tennessee court said that a tenant at will "had no estate in the land, and could not transfer his possession to another, because he could make no lawful contract in reference to it; the very nature of his occupancy, precluded all idea of dealing with it as an interest in the land, or of a subtenancy under him." The statement that a tenant at will has no estate in the land is inconsistent with the generally accepted view that the right of a tenant at will is a "leasehold," 35 C. J. tit. Landlord and Tenant, 1120, and is directly contrary to the following declaration of this court in Voudomas v. Bragg, supra: "Since the association...