Winchester v. O'Brien

• Decision Date: 24 January 1929
• Citation: 164 N.E. 807,266 Mass. 33
• Parties: WINCHESTER v. O'BRIEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 33

164 N.E. 807

WINCHESTER

v.O'BRIEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 24, 1929.

Appeal from Superior Court, Suffolk County; MacLeod, Judge.

Suit by Walter F. Winchester against Frances E. O'Brien and others. Decree for plaintiff, and defendants appeal. Affirmed.D. A. Ellis and S. M. Whalen, both of Boston, for appellants.

F. W. Fisher, of Boston, for appellee.

SANDERSON, J.

This is a bill in equity, filed June 21, 1927, to enjoin interference by the defendants with the plaintiff's use and enjoyment of his dental offices in the defendants' building and for damages. The defendants Lowe, Lipp and Holzman are the owners of the property standing in the name of the defendant O'Brien and will be referred to as the defendants. Injunctive relief was not granted, but a master was appointed to find the facts, and a decree was entered in favor of the plaintiff for $650 damages, and for costs, based upon the finding of the master that $150 was the damage to the plaintiff's property solely resulting from the acts of the defendants, and that $500 was the loss of his business income. The defendants appealed.

The lease from the defendants to the plaintiff, executed August 18, 1924, was ‘of the small suite consisting of two (2) rooms and a bath room * * * in the * * * apartment house known as the ‘Chesterfield” at the corner of Massachusetts avenue and Commonwealth avenue, for a period of three years from October 1, 1924, and contained a covenant that the lessee would occupy the premises for his business as a practicing dentist and that nothing should be done thereon which would be injurious to the comfort of other tenants of the building or its good reputation. At the time of the execution of the lease the plaintiff had been in occupation of the suite for more than fifteen years and had an established business there. The building consisted of six stories, each of the upper five being occupied by one tenant and the street floor by the plaintiff and a florist. The apartment leased to the plaintiff was quiet and suitable for the offices of a dentist by reason of its surroundings and location.

In May, 1927, the defendants, to make their building more profitable and in pursuance of a design to remodel it into an office building, began work involving the tearing out of most of the partitions above the first floor and installing new ones, removing and relaying floors, taking out old and installing new plumbing and fixtures, taking out an elevator near the plaintiff's suite and installing a larger one, thereby making the stairway smaller. The noise of pounding metal involved in removing the old and installing a new elevator was at times almost incessant. The hallway was occasionally obstructed with material although the janitor tried to keep it open. Access to the plaintiff's apartment was never entirely prevented, but it was often made inconvenient or uncomfortable. Large quantities of rubbish were thrown and accumulated in an enclosed areaway on which the plaintiff's windows open and much plastering was done in connection with these operations. The new plastering made the plaintiff's apartment damp, causing tarnishing of instruments, appliances and the metal work of chairs. The hot water tank in the building was taken out in May and from time to time the electricity in the apartment was shut off for periods of from fifteen minutes to half an hour and sometimes, when the plaintiff was in the midst of his work with a patient, temporary suspension of his work was made necessary. In consequence of the reconstruction work the plaintiff's apartment became dirty and dusty and on various occasions during May and June everything in it was covered with dust, largely consisting of fine plaster which damaged upholstered furniture in his rooms; and dirt from the hallway was tramped into his rugs. The work of tearing out was accompanied by a great deal of noise. Removing the stairways caused the plaintiff and his patients discomfort and made the practice of his profession difficult. At times the work resulted in considerable jarring of the building which interfered materially with the plaintiff's work upon his patients. The noise and dirt were annoying to patients and the conditions rendered it difficult properly to receive them and to give them services and attention which they required. The situation was wearing upon the plaintiff personally and often resulted in his becoming unfit to continue his work, so that during the entire period, particularly during June and July, he frequently found it necessary to postpone treating certain patients until he could do so under more favorable conditions, and, as a consequence, the receipts from his business showed some falling off. Neither the defendants nor their workmen entered the plaintiff's apartment. All that was done took place outside the two rooms and bath leased to the plaintiff. The master found that there was no evidence that the work of remodelling was not carried on in a reasonable and proper manner.

The plaintiff paid his rent to the end of the term and meanwhile prosecuted this suit, not intending to waive his rights to hold the defendants for the damages asserted in his bill.

‘The grant of any thing carries an implication, that the grantee shall have all that is necessary to the enjoyment of the grant, so far as the grantor has power to give it.’ Salisbury v. Andrews, 19 Pick. 250, 255;Brande v. Grace, 154 Mass. 210, 211, 31 N. E. 633;Case v. Minot, 158 Mass. 577, 584, 585, 33 N. E. 700;Whitehouse v. Aiken, 190 Mass. 468, 471, 77 N. E. 499. The lease carried with it an implication that the lessors would refrain from acts voluntarily undertaken which substantially ‘impair the character and value of the leased premises.’ Brande v. Grace, 154 Mass. 210, 212, 31 N. E. 633, 634.

If a landlord authorizes acts to be done which cause substantial injury to the tenant in the peaceful enjoyment of the demised premises and such a result is the natural and probable consequence of the acts so authorized, the landlord is...