Riddle v. Littlefield , 53 N.H. 503 ( 1873 )

Foster, J.

By the terms of the lease of “ a certain store * * in Riddle’s building, * * being the same now occupied by Thomas Dunlap, and known as No. 191 Elm street,” the lessee acquired the right to the use and occupation of the outside of the walls belonging to that portion of the tenement which included the store. He took it as parcel of the demised premises proper, and not as a thing technically appurtenant thereto. The outside wall of a building leased or conveyed, passes by the lease or deed as much as the inside of the same wall.

Appurtenances are defined, — “ Things belonging to another thing, as principal, and which pass as incident to the principal thing.” Bouv. Law Die. Another definition is, — “ A thing used with and related to or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurtenant.” 8 Washb. Real Prop. *626, *627 ; Com. Dig. Appendant and Appurtenant (A.). The word “appurtenances” has a technical signification, and, when strictly considered, is employed in leases for the purpose of including any easements or servitudes used or enjoyed with the demised premises. Smith & Soden’s Landlord and Tenant 86. When the term is thus used, in order to constitute an appurtenance there must exist a propriety of relation between the principal or dominant subject, and the accessory or adjunct, which is to be ascertained by considering whether they so agree in nature and quality as to be capable of union without incongruity. Ibid.

These distinctions are refined, and in the common practice of modern conveyancing are not much regarded, — the term appurtenances, in a vast majority of cases in deeds and leases, having, in fact, I presume, no meaning whatever in the minds of the contracting parties, who append the unnecessary formula by force of the custom and example which has for so long a time applied it to grants and leases of a principal thing, to which no inferior easement or servitude whatever, in fact, belongs.

If employed in its true and technical sense, it may sometimes have such meaning and importance, that, if omitted, an appurtenance will not pass. And the use of'sucli superfluous formula is ordinarily harmless, and will seldom lead to confusion or misunderstanding. But, ordinarily, whatever easements and privileges legally appertain to property, pass by a conveyance of the property itself, without any additional words. Smith & Soden Land, and Ten. 86-88. “ The grant of a thing passes the incident as well as the principal, though the latter only is mentioned ; and this effect cannot be avoided without an express reservation.” Thus, a garden is parcel of a house, and passes without the addition of the word appurtenances.” Taylor Land, and Ten., sec. 161. A grant of a thing will include whatever the grantor had ppwer to convey, which is reasonably necessary to the enjoj'ment of the thing granted. 3 Washb. Real Prop. *626. Grant of a messuage passes the house, with the close upon winch it is built, and “the little garden, yard, field, or piece of void ground, lying near and belonging to the messuage.” Shep. Touch. 94; Co. Litt. 216;—see Gibson v. Brockway, 8 N. H. 465. Messuage is a term of large signification, always including land—2 Wendell’s Blackstone *17, note 4; and, in Scholes v. Hargreaves, 4 D. & E. 46, it was applied to a house and land, including a shop for the sale of wares. If a house or a store be conveyed, everything which belongs to it or is in use with it, and whatever is essential to the enjoyment, passes as an incident, unless specially reserved. When anything is granted, all the means to attain it, and all the fruits and effects of it, are also granted, and will pass inclusive, without the words “ cum pertinentiis for it is a maxim, cuicunque aliquid eonceditur, conceditur etiam id sine quo res ipsa non esse potest. 4 Gr. Cruise *265; Broom’s Leg Max. *362; Shep. Touch. 89; 4 Kent. Com. *467; Pomfret v. Rickroft, 1 Saund. 321, 323; United States v. Appleton, 1 Sum. 492;—and see Cocheco Man. Co. v. Whittier, 10 N. H. 305; Kittredge v. Woods, 3 N. H. 503; New Ipswich Factory v. Batchelder, 3 N. H. 190 ; Winchester v. Hees, 35 N. H. 43; Dunklee v. Wilton Railroad, 24 N. H. 489.

Certain words usually employed in a lease, as house, farm, land, and the like, have, if necessary, a very wide meaning ; and where such general and .comprehensive terms are employed, all things usually comprehended within the meaning thereof will pass, unless the circumstances of the case show, very clearly, that the intention of the parties was otherwise. 1 Pars. Con. 499.

Now, it will hardly bq contended that the outside wall of a store or house is not essential for the reasonable and proper enjoyment of the interior of the building. The outer side of the wall is but one side of the same wall that has an inner side ; and the removal of the wall removes both sides.

If, then, a lessee or grantee may have the wall which he pays for, it would seem that he should be entitled to the use of it, not only for purposes indispensable to the occupation of the building, but also for any purpose of service or profit not inconsistent with the lawful and reasonable enjoyment of the property.

If lie uses tlie tenement for a store, lie would ordinarily be entitled to affix liis signs to the outer wall; an awning, also, if sucli appendage should be deemed necessary or convenient. He may suspend his wares upon the building, if nobody is incommoded thereby ; and he may cover the outer walls with his advertisements of the merchandise which he keeps for sale within, if he does not injure the building, nor obstruct the public passage, nor offend the public eye and taste by unseemly exhibitions, or otherwise.violate the laws. And if he may thus encumber and cover the exterior walls of his store, clearly his lessor cannot do the same thing at the same time. The occupation by both parties to the lease, for incongruous purposes, is impossible. If the premises are leased for a clothing store, for example, the lessor cannot use for a bulletin-board the space which the lessee may reasonably, properly, conveniently, and profitably occupy with the ready-made garments which he there suspends for exhibition and sale.

Who, then, shall occupy the exterior walls of the demised building ? The landlord, who for a sufficient consideration has parted with the possession and use of the property, usque ad ftlum vice (if it is bounded by a street) ? or the tenant, who cannot have the full and complete as well as reasonable beneficial enjoyment of the property for which he pays rent, without the opportunity to display his wares and his advertisements upon the external walls of the building ?

The lessee who affixes his signs and advertisements upon the wall, or thereupon suspends his wares, does so in order to attract custom, and thereby increase the profit derived from the use of the demised premises. The outer wall is therefore to him a source of legitimate profit. And, as the lessor does not ordinarily prescribe the uses to which the interior of the store shall be devoted — provided only the use be not offensive, improper, or illegal — so he may not, otherwise than with the same proviso, prescribe the uses to which the outer walls may be devoted by his lessee. If the lessee deems it more advantageous to employ the walls for advertising the goods or the business of others, receiving payment therefor, than to advertise or expose his own goods upon the wall, it is none of the landlord’s business, unless he has restricted and forbidden such use of the premises, or inserted in his lease a covenant against the sub-letting of them.

It would be singular if a landlord, who had leased a building for the purposes of trade, might occupy the outer walls of the same building for displaying the advertisements of a rival trader ; but this result might very probably follow, if the lessee might not coptrol the use of the exterior walls.

It appears from the case that the lease, by its terms, granted the right to the lessee to occupy a portion of the very space which the lessor now claims the right to control, by putting a window there — a use quite incompatible with the lessor’s claim to exclude the defendant entirely from its occupation. It appears, also, that a prior tenant permitted the lessor to occupy the outer wall for posting placards, without objection ; but the fact that Mr. Dunlap did not choose to avail himself of all his rights or advantages, is not a circumstance which can affect the present lessee. Nor can the present lessee be concluded by knowledge that Mr. Dunlap acquiesced either in an infringement by the landlord of his rights as a lessee, nor the fact that he may have occupied the premises upon different terms and considerations affect the question now before us. The defendant hired the premises with their-usual and ordinary incidents, without limitation or reservation ; and he is entitled to make such use of them as, being consistent with the purposes for which they were demised, shall at the same time be neither injurious to the lessor nor offensive to the public.

With these views, and in accordance with the provisions of the case, there must be Judgment for the defendants.