Rickman Manufacturing Company v. Gable

97 S.E.2d 672 (1957) 246 N.C. 1

RICKMAN MANUFACTURING COMPANY, Inc.
v.
L. P. GABLE and wife, Emma Brooks Gable.

No. 522.

Supreme Court of North Carolina.

April 10, 1957.

Clarence Kluttz, Lewis P. Hamlin, Jr., W. T. Shuford, Hayden Clement, Craige & Craige, Salisbury, for plaintiff appellant.

Hartsell & Hartsell, William L. Mills, Jr., Concord, Hudson & Hudson, Woodson & Woodson, Salisbury, for defendant appellees.

WINBORNE, Chief Justice.

The principal assignment of error presented on this appeal challenges the correctness of the ruling of the trial court in granting motion for judgment as of nonsuit. G.S. § 1-183. On such motion the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. The rule is so well recognized in this State that citation of authority is unnecessary.

When the evidence in case in hand is so taken, this Court holds that judgment as of nonsuit was properly entered.

Here, to summarize, there is a five-year lease of real property, required by law to be in writing and signed by the party to be charged therewith. G.S. § 22-2. By its terms defendants, as parties of the first part, leased to plaintiff, as party of the second part, their heirs, successors and assigns, for a period of 5 years, commencing September 1, 1951, the following described property: "The second and third floors * * * of the Rouzer building. To Have and To Hold the same, with the privilege and appurtenances thereunto in any wise appertaining, to the said parties of the second part, their heirs, successors and assigns for the above period" upon terms and conditions stated.

At the same time and on similar terms and conditions defendants leased to Carolina Tire & Rubber Company and Brad Ragan the first floor of the Rouzer building.

And evidence offered by plaintiff as stated in letter to defendants from plaintiff company by its attorney dated October 24, 1952, tends to show that "it is absolutely necessary" that "we have heat" in the building "in order to carry on our regular business in the premises"; and that the source of supplying heat was an oil furnace in the basement of the building.

Therefore the question arises as to whether the heating system in the basement is an appurtenance to the lease of the second and third floors, and hence within the provisions of the lease. Plaintiff contends that it is not so included in the lease, and defendants contend that it is.

In this connection "It is a settled principle of the law of property that a conveyance of land, in the absence of anything in the deed indicating a contrary intention, carries with it everything properly appurtenant to, that is, essential or reasonably necessary to the full beneficial use and enjoyment of the property conveyed, and this principle is equally applicable to a lease of premises. In leases, as in deeds, `appurtenance' has a technical signification, and is employed for the purpose of including any easements or servitudes used or enjoyed with the demised premises. 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. Moreover as in the case of conveyances, whatever easements and privileges legally appertain to the demised premises and are reasonably necessary to its enjoyment ordinarily pass by a lease of the premises without any additional words. Parol evidence is admissible to show the meaning of the term appurtenances'." 32 Am.Jur., Landlord and Tenant, Section 169.

"An `appurtenance' has been defined as `a thing which belongs to another thing as principal and which passes as incident to the principal thing.' It must have such relation to the principal thing as to be capable of use in connection therewith." 4 C.J. 1467; 6 C.J.S., p. 133, quoted in Foil v. Board of Drainage Com'rs, 192 N.C. 652, 135 S.E. 781, 782.

In Riddle v. Littlefield, 53 N.H. 503, 16 Am.Rep. 388, this headnote epitomizes the opinion of the Court: "By the lease of a building, everything which belongs to it, or is used with it, and which is reasonably essential to its enjoyment, passes as incident to the principal thing and as a part of it, unless especially reserved."

And in Stevens v. Taylor, 111 App.Div. 561, 97 N.Y.S. 925, it is held that "Where certain floors of a building were leased with the `appurtenances,' a furnace, constituting the only means for heating the leased premises, was included in the word `appurtenances.'"

So in the case in hand this Court holds that the second and third floors having been leased "with privilege and appurtenances thereunto in any wise appertaining," the furnace, constituting the only means for heating the leased premises, was included in the words "appurtenances thereunto in any wise appertaining."

Moreover, among the terms of the lease, paragraph 3 declares that it is understood and agreed that the parties of the second part, their heirs, successors and assigns, shall be responsible for two-thirds of the maintenance and upkeep of the heating plant and equipment in said building. And the testimony by feme plaintiff tends to show that the lease which Brad Ragan and Carolina Tire & Rubber Company entered into, as above recited, provided that the Brad Ragan Motor Company and the Carolina Tire & Rubber Company were to assume responsibility for one-third of the maintenance of the heating plant and the cost of fuel.

The word "maintenance" is defined in Black's Law Dictionary as "the upkeep, or preserving the condition of the property to be operated."

Indeed in Chambers v. North River Line, 179 N.C. 199, 102 S.E. 198, this Court in opinion by Clark, C. J., held that the lessee's covenant to maintain the lease premises in its present condition is equivalent to a general covenant to repair and leave in repair under the common law.

The appellant contends, however, that the language used here means that the parties of the second part shall only pay for twothirds of the maintenance and upkeep. But it will be seen that the agreement in paragraph 3 is that the parties of the second part, their heirs, successors and assigns, shall do four things: (1) Shall be responsible for two-thirds of the maintenance and upkeep of the heating plant and equipment in said building; (2) shall pay two-thirds of the fuel costs; (3) shall pay two-thirds of the expense of water for said building; and (4) shall pay all of the expense of maintenance of plumbing and plumbing fixtures on the second floor of said building. When read in the light of the fact that Brad Ragan Motor Company and Carolina Tire & Rubber Company were at the same time agreeing to be responsible for the other one-third, the language used is clear. Too, it is significant that of the sixteen paragraphs devoted to stating terms and conditions of the lease, the only obligation imposed upon the parties of the first part is that they "are to maintain the roof on said building at their own expense."

Hence it is patent that plaintiffs, as parties of the second part, agreed to be responsible for maintenance and upkeep of the heating plant.

And the expert witness offered by plaintiff testified that he did not see any portion of the boiler or oil burner which was mechanically defective in itself. He gave it as his opinion that the only reason that this burner exploded was because it had not been properly maintained; that he believed that the boiler and oil burning unit were equipped with modern and approved controls, and that as far as the installation of equipment itself was concerned, it was done in a usual method.

However plaintiff contends that J. B. Wall, son-in-law of defendants, after September 1, 1951, orally forbade them having anything to do with the furnace. Even so, plaintiff was in possession under the lease, and entitled to hold possession and control against the world. The landlord had no right to enter upon the leased premises against the consent of the tenant. State v. Piper, 89 N.C. 551. A tenant can bring trespass against his landlord for forcibly entering and breaking the close during the term. Barneycastle v. Walker, 92 N.C. 198. See also State v. Boyce, 109 N.C. 739, 14 S.E. 98; State v. Fender, 125 N.C. 649, 34 S.E. 448.

Indeed, the case on appeal is devoid of competent evidence as to J. B. Wall having authority to agree, or to assent to a change in the language of the written word, that is, the written lease of real property for more than three years required to be in writing. G.S. § 22-2.

Other assignments of error based upon matter elicited upon cross-examination of feme plaintiff have been considered, and in the light of the decision reached as hereinabove set forth, prejudicial error is not made to appear.

Hence the judgment from which appeal is taken is

Affirmed.