Raynes v. Stevens
| Decision Date | 31 December 1914 |
| Parties | RAYNES v. STEVENS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John P. Farley and Edward J. Tierney, both of Lowell, for appellant.
J Gilbert Hill, of Lowell, for appellees Julia M. S. Jolliffe and Alice N. Stevens.
A. K Cohen and H. A. Mintz, both of Boston, for appellee Ignatz Wit.
Qua Howard & Rogers, of Lowell, for appellee Harry C. Kittredge.
The plaintiff's claim is that by the lease to him of 'the store and cellar under the same' he acquired a right to the free and uninterrupted entrance of light and air into the store over and across the area in the rear of the store, under the rules laid down in Dexter v. Manley, 4 Cush. 14; Oliver v. Dickinson, 100 Mass. 114; Brande v. Grace, 154 Mass. 210, 31 N.E. 633; Case v. Minot, 158 Mass. 577, 33 N.E. 700, 22 L. R. A. 536; Whitehouse v. Aiken, 190 Mass. 468, 77 N.E. 499; and Doyle v. Lord, 64 N.Y. 432, 21 Am. Rep. 629. But upon the facts which have been found by the master and upon which the case must be decided, the plaintiff has failed to establish his right.
The lease was merely of the store and the cellar under it. The store was one of several rooms or stores upon the ground floor of a building called the Tyler block, which was at least three stories in height, and which contained other rooms upon the upper floors. The lease was not of a whole building or a whole floor, but of one room and the cellar underneath it. This gave to the plaintiff no rights outside of the one room and the cellar, except such as plainly were intended by the parties to be included in the leased premises as appurtenant thereto or parcel thereof, either because they were really necessary to the beneficial enjoyment of the demised property for the purpose for which it was leased, or because it was manifest from the considition and situation of the property and the attendant circumstances that they had been designed and appropriated for the benefit of that property. This is the doctrine of the cases relied on by the plaintiff. It accords with the reasoning of the court in Pevey v. Skinner, 116 Mass. 129, and Lowell v. Strahan, 145 Mass. 1, 8, 12 N.E. 401, 1 Am. St. Rep. 422.
The master has not found, nor has he made any finding from which we can infer, that the lossors and the plaintiff intended that he should acquire any right under his lease to have this area kept open for the free passage of light and air into his store. He has not found that the plaintiff was led to expect, or actually expected, to enjoy such a right; and such an expectation, not induced by the lessors or even known to them, would have been utterly insufficient to give to the plaintiff any right which he could enforce against the lessors. Brighton Packing Co. v. Butchers' Slaughtering & Melting Ass'n, 211 Mass. 398, 405, 97 N.E. 780, and cases there cited.
Nor has the master found that this right is necessary to the beneficial enjoyment of the leased premises. The findings go no further than to show that the possession of such a right would be convenient and advantageous to the plaintiff, and that its absence detracts from their rental value to the extent of one-tenth part thereof. But there is no finding and no ground for inference that the rent reserved in the lease was based at all upon the existence of this right, or that the stipulated rent exceeded the fair rental value of the leased premises without such a right. The findings as to the use made by the plaintiff of the windows opening upon this area and as to the arrangements which the plaintiff made in the store tend to show that there was no real necessity such as now is claimed. Finally the master has found that this right is not 'absolutely necessary' for the enjoyment of the leased premises for the purpose for which they were leased. It may be that the necessity which would warrant a finding that this right passed to the plaintiff need not be absolute in the sense that it must be completely indispensable. It must, however, be a real necessity, though perhaps only a reasonable one. A mere balance of convenience, a mere advantage which otherwise would be lost, is not enouth. Leonard v. Leonard, 7 Allen, 283; Randall v. McLaughlin, 10 Allen, 366; Oliver v. Pitman, 98 Mass. 46, 50; Buss v. Dyer, 125 Mass. 287; Lipsky v. Heller, 199 Mass. 310, 317, 85 N.E. 453; Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 410, 97 N.E. 54, 38 L. R. A. (N. S.) 882, and cases there cited. But however that may be, the language of this finding cannot help the plaintiff, for the burden of proof was not upon the defendants, but upon him, to establish the right for which he contends. Beals v. Case, 138 Mass. 138, 140; Clapp v. Wilder, 176 Mass. 332, 337, 338, 57 N.E. 692, 50 L. R. A. 120; Lipsky v. Heller, ubi supra.
Nor does it appear that the open space was intended to benefit the leased premises by giving to them a free access of light and air. It was not accessible merely from this store, or from the other stores and rooms abutting upon it. It communicated through another larger open space with a passageway which led to Market street. It was designed apparently to furnish a means of access to the back of the stores in the block, and its principal use seems to have been for that purpose and as a place for the deposit of rubbish. It was not a mere well or shaft, inaccessible from the street, and plainly adapted only to furnish light and air to the adjacent rooms, as in Case v. Minot, 158 Mass. 577, 33 N.E. 700, 22 L. R. A. 536. On the contrary, as the master has found, it was, at the time the plaintiff took his and its principal use seems to have been for the one now complained of erected upon it. As was said by Braley, J., in Lipsky v. Heller, 199 Mass. 310, 317, 85 N.E. 453, 461, if the lessors had stipulated that this place 'was not to be built over, or was to be kept open and maintained by the abutters, as in Schwoerer v. Boylston Market Ass'n, 99...
To continue reading
Request your trial