Hippodrome Amusement Co. v. Wit , 233 Mass. 216 ( 1919 )

Braley, J.

While the lease dated March 23, 1914, does not in terms refer to the sketch plan the bill alleges and the answer admits that the plan was followed in the description of the leasehold and the apportionment of the rent. It is apparent from the plan, on which the areas do not appear, that the demised premises comprise an entire tract divided into contiguous parcels, which are respectively designated as A, B, D and C and of which only parcel A abutted on a public way. The trial judge finds that at the execution of the lease this parcel, which is referred to by him and by counsel as "front land” had a value of about $30 a square foot, while parcels C and D or the "rear land” were each worth only $5 a square foot. But he also states that while the parties during the negotiations preceding the lease knew that the front land was of much greater value than the rear land, there was no evidence before him showing any estimate of valuation on which either party acted. The inquiry would be of little moment if it' were not for the provisions of the lease which, instead of naming a round sum as a yearly rent for the entire leasehold, treats the parcels as if each parcel was a separate demise. The rent reserved for parcels A and B, concerning which there is no dispute, is a fixed yearly amount based on a graduated scale during the term and the lessor pays the taxes on lot A. But for parcel C, and for parcel D, subsequently acquired by the plaintiff as provided in the lease, the lessee covenanted to pay a yearly rent equal to nine per cent of the valuation of the parcels as assessed by the proper authorities of the city, “or those having the power in the premises to value said land for the purposes of taxation, such percentum to be based on such tax valuation as of April 1, in each year for . the year ending the following March 31, and if the assessment date shall hereafter be changed, then the rental year shall begin as of such assessment date.” While parcel C at the date of the lease was vacant land, the plaintiff as contemplated by the lease, has erected thereon a building to be used by it as a theatre, access to which by the public is over parcel A in connection with parcels B and D, and at the termination of the lease the ‘building is to become the property of the lessor.

It appears from the record that the entire tract held by the defendant as the lessee of one Leland contains thirteen thousand one hundred and twenty-two square feet, while the premises demised to the plaintiff exclusive of lot A comprise eight thousand ninety-one square feet of which lot D has an area of three hundred and sixty and lot C an area of seven thousand six hundred and seven square feet.

The defendant demands rent for lots C and D on the basis of the taxable valuation of $12 per square foot, at which as a uniform rate the judge found that the land as a whole had been assessed to the defendant before the plaintiff’s lease and that “that rate was a reasonable assessment per-square foot for the entire area, as a large part, nearly two-thirds, of the total area, was back land.” The evidence is not reported, and this finding as well as the further finding that the total rent of lots C and D from the beginning of the term to and including March 31, 1917, computed at nine per cent on the valuation of the land as assessed prior to the lease at $12 a square foot, amounts to $42,994.11, of which sum the plaintiff has paid $36,460.13, leaving a balance due when the bill was filed of $6,533.98, cannot be disturbed. The bill, however, alleges and the plaintiff contends that in order to determine the fair and proper rent it is necessary that the assessors should make a separate assessment of lots C and D with the buildings thereon, and it is found that although so requested by the plaintiff, the assessors have declined to make a separate assessment because the owners of the reversion as well as the lessor decline to acquiesce in any division of the premises.

The plaintiff being confronted with this situation asks that the defendant may be decreed to consent to a “special assessment being made of . . . lots C and D . . .” or that the court “shall determine, by special assessment or otherwise, the fair assessable value . . . from the date of said lease to April 1,1917, the date! of the next assessment by the assessors . . .” If the plaintiff under the wording of the covenant is within the grip of a bargain which it now maintains is extremely burdensome and unduly advantageous to the lessor, the hardship arises as shown by the record from its voluntary and deliberate act in executing the' lease, and not from any misrepresentation or fraudulent conduct of the defendant.

■ It is plain that the rent is to be ascertained on the valuation of the leasehold as a whole or in parts which may change from year to year as the assessors in the performance of their duties as public officers may in their own judgment determine. Wall v. Hinds, 4 Gray, 256, 269. And, finding no error in the computation previously stated of the amount due from the plaintiff to the defendant, a majority of the court are of opinion that a decree in accordance with the terms of the report should be entered dismissing the bill.

Ordered accordingly.