Schopp v. Schoop
| Citation | 142 S.W. 740,162 Mo.App. 558 |
| Parties | MATILDA SCHOPP et al., Executors and Trustees, Appellants, v. GEORGE P. SCHOOP et al., Respondents |
| Decision Date | 09 January 1912 |
| Court | Court of Appeal of Missouri (US) |
Submitted on Briefs December 5, 1911.
Appeal from St. Louis City Circuit Court.--Hon. George H. Williams Judge.
AFFIRMED.
Judgment affirmed.
Kinealy & Kinealy for appellants.
(1) Mr Conrad Schopp bought the Schopp Building subject only to the written recorded lease to Geo. P. Schoop & Co. Verbal licenses or easements granted by a former owner do not run with the land. R. S. 1909, sec. 2782. (2) The lessees had no right to authorize the building to be used for any purpose which under the contemplation of the lease would be considered an unreasonable use. Murphy v. Type Fdry., 29 Mo.App. 541; 24 Cyc. 1061. (3) A lessee or tenant has no right to grant an easement of a passageway over the leased premises. Richardson v. Richardson, 9 Gray 213, 75 Mass. 213; Gentlemen v. Soule, 32 Ill 271; Drda v. Schmidt, 27 Ill.App. 267. (4) The damage being of a continuous character and there being no adequate remedy at law, injunction is the proper remedy. 24 Cyc. 1064; Whipple v. McIntyre, 69 Mo.App. 397.
Schnurmacher & Rassieur for respondents.
(1) On a bill for an injunction the fact that a trespass complained of may be continuous, does not prove it is not susceptible of adequate compensation, in damages, by an action at law, and where a party has an adequate legal remedy he cannot ask for equitable relief. The writ of injunction is not one of right, but of discretion, and will not be granted where the injury is susceptible of pecuniary compensation, for which adequate satisfaction can be obtained in the ordinary course of law. Carlisle v. Stevenson, 3 Md. Ch. 499; Edwards v. Mining Co., 38 Mich. 46; Burgess v. Kattleman, 41 Mo. 480; Taylor v. Todd, 48 Mo.App. 550. (2) Where on an application for an injunction the relief sought is disproportioned to the nature and extent of the injury sustained, or likely to be sustained, a court of equity will decline to interfere. 1 High on Injunctions (4 Ed.), sec. 22, p. 37; Hall v. Rood, 40 Mich. 46; Lynch v. Union Inst., 159 Mass. 306; Amerman v. Deane, 132 N.Y. 355. (3) Nor will a court of equity grant an injunction where the injury complained of is small or technical. Warren v. Cavanaugh, 33 Mo.App. 102.
This is a suit in equity, originally brought by Conrad Schopp, the owner of a business building in the city of St. Louis, to restrain his lessee, George P. Schopp & Co., a corporation, and the St. Louis Label Works, also a corporation and subtenant of the former, from permitting or making an unauthorized use of the leased premises. The latter consists of a four-story building situated on the southwest corner of Third and Morgan streets. On the Third street front in the southeast corner of the building is a freight elevator and on the Morgan street side in the northwest corner of the building is a stairway leading to the upper floors.
The building was originally owned by one John Schopp, who apparently in 1894 leased it to the defendant The George P Schopp & Co., for a term of five years, with the privilege of renewal at the termination of the five years. Before the expiration of this term John Schopp died and the title to the premises appears to have passed to his widow, Mrs. Johanna Schopp. The George P. Schopp & Co., under the power granted it in the lease, sublet the second, third and fourth floors to the defendant St. Louis Label Works. Finding the floor space inadequate for the wants of its business, the latter company leased the second, third and fourth floors of a building adjoining and known as the Meyer Building, and during the term of the first lease, that is sometime between 1894 and 1899, with the assent and approval of Mrs. Johanna Schopp, then the owner of the leased premises, cut openings in the partition wall between the Schopp Building and the Meyer Building, the floors of the adjoining buildings apparently being on a level. The first lease, which expired about the year 1899, was renewed by Mrs. Johanna Schopp for another term of five years, taking it to 1904, and in 1904 was renewed for another term of five years, ending in 1909. Pending the falling in of this latter term Mrs. Johanna Schopp died and in a partition of the estate the Schopp premises were bought in by a real estate company, which thereupon sold them to one Conrad Schopp, apparently immediately following the purchase at the partition sale, and about the year 1906. Two years after purchasing it, that is in April, 1908, Conrad Schopp brought this present suit, and he dying pending its trial, it has been continued by his executors, having been duly revived in their names. It appeared that before his purchase and before the partition sale, Conrad Schopp had visited the premises and inspected them from top to bottom and saw the openings between them and the adjoining building; had gone through them and neither then nor at any other time prior to the institution of this suit appears to have made any objection to the openings or to the use of them. The defendant St. Louis Label Works was engaged in the business of printing labels for pill boxes and medical supplies of various kinds and employed about fifty hands, about ten of these fifty being employed in the Meyer Building, which is apparently used for the storage of paper, no machinery of any kind being placed or used in the three stories of the Meyer Building. There being no stairway or elevator in the Meyer Building, all the supplies which were used by the Label Works Company were carried up through the elevator in the Schopp Building and thence carried on trucks from the elevator, a distance of some fifteen feet, and thence on to the floors of the Meyer Building, sometimes being carried by hand, sometimes on trucks, and when required in the work carried on in the Schopp Building, carried through these openings from the Meyer Building into the Schopp Building either by hand or on trucks. It appears in evidence that this floor space between the elevator and the openings on one of the floors had been covered over by the Label Works people with false flooring to protect the under flooring. It further appears by the lease in evidence that the lessee, that is to say, Schopp & Co., agreed to keep the premises, "including plumbing, sewer and hydraulic elevators, in good order and make at their own cost and expense all repairs necessary to keep the same in good order and condition, excepting such repairs as may be required on account of elevator machinery getting old and needing new ropes and parts to maintain safety, also excepting repairs to the roof, walls, gutters and down-spouts, of said premises made necessary by ordinary wear, decay, damage by fire and the elements," the lessee...
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