Harrison v. Ziegler

Plaintiffs, as lessees of a certain building used as a restaurant and cafe, seek to enjoin the defendant, the surviving lessor] from interfering with the beneficial use of the leased premises. A temporary restraining order issued against the defendant was dissolved upon the trial of the cause. Judgment was entered for the defendant, and the plaintiffs appeal, contending that the evidence amply supports the allegations of their complaint and entitles them to the relief sought.

The defendant, Mary Ziegler, is the surviving wife of John Ziegler, deceased, and is the owner of the Valencia

The barroom in the hotel building extends back to a hallway, which also connects with the rear part of the lobby of the hotel, and from which access is had to a toilet and lavatory located in the rear of the building. At the time the lease was entered into there was, and is now, a doorway opening from the easterly end of this hallway into the restaurant premises of the plaintiffs. Upon the advent of .national prohibition the defendant, in remodeling the premises formerly used as a saloon, planned to remove the toilet and lavatory, and sought to close, and had actually begun the work of closing, the hallway and door leading to the restaurant. Thereupon plaintiffs brought this action, seeking to enjoin the defendant from proceeding with the work.

No mention is made in the lease between the parties of the doorway opening from the hallway into the restaurant, or of the use of the doorway; neither is the use of the toilet and the lavatory-room in the rear of the hotel premises by plaintiffs, or by their patrons, provided for in the lease. Appellants contend, however, that the hallway and the door leading therefrom into the cafe are appurtenant to the restaurant premises and were intended to be covered by the lease. They also claim that the washroom and toilet were reasonably necessary and essential to the enjoyment of the leased premises. In support of their position evidence was introduced, the effect of which was that during the negotiations leading up to the signing of the lease, John Ziegler,

It is in evidence that at one time Mrs. Ziegler said to Gathas, one of the appellants, that if the plaintiffs desired to use the lavatory and toilet-room, they should keep it clean, or it would be locked. Gathas replied that he did not care, and Mrs. Ziegler might lock the place if she so desired. Harrison, the other appellant, testified that the passageway was more used by the hotel guests in patronizing the saloon than in using the restaurant. On behalf of the respondent it was further shown that practically all of the patrons of plaintiffs’ cafe used the Center Street door of the building, and a very few used the door opening from the restaurant into the rear passageway. Very few of the restaurant customers used the lavatory and toilet facilities in the rear of the former saloon. At the time of the trial ample toilet facilities had been constructed in the rear of the restaurant and were easily accessible through the kitchen of the leased premises.

On this and other evidence the trial court found that only a small number of the guests of the hotel, who patronized the restaurant of plaintiffs, used the passageway and door in the rear of the lobby as an entrance into the cafe. It further found that the doorway entering into the hall from the restaurant was used by plaintiffs, their employees, and to some extent by their customers, in going to and from the toilet-room and lavatory in the rear of the saloon, but that the use of these facilities by plaintiffs was unnecessary, for the reason that the restaurant is equipped with separate and adequate toilet and lavatory facilities. It

The use of the door, passageway, and toilet facilities was not expressly included, nor even alluded to. in the lease. Nothing whatever is mentioned but “the room known as the ‘Valencia Cafe.’ ” Did the right to use the door, passageway, and toilet facilities pass to the appellants with the room known as the Valencia Café by necessary implication? [1] Eights and easements may and do pass to lessees by implication, “but where the express words of the grant are not sufficient, the implication which supplies those words flows either from a reasonable necessity, or, considering all the circumstances, from the manifest intention of the parties.” {Hill v. Shultz, 40 N. J. Eq. 164 , 166.) In this case, as in that, the question is: “Since the parties did not adjudge it important enough to contract respecting the use” of the doorway, passage, and toilet facilities “in plain terms, is the necessity so strong as to make the demands of the appellants appear reasonable”?

[2] It is very clear from the findings of the trial court, which we think are amply supported by the evidence, that the use of the door, passageway, and toilet facilities in connection with appellants’ business was merely a convenience, but is not necessary to the beneficial use of the property. The door, passageway, and toilet facilities are, therefore, not appurtenant to the restaurant premises and there is no implied reason which will prevent the respondent from closing the same. {Jemo v. Tourist Hotel Co., 55 Wash. 595 , [19 Ann. Cas. 1199, 30 L. R. A. (N. S.) 926 , 104 Pac. 820 ]; Walker v. Clifford, 128 Ala. 67 , [ 86 Am. St. Rep. 74 , 29 South. 588 ].)

The judgment is affirmed.

Kerrigan, J., and Eichards, J., concurred.