Owsley. v. Whelan Drug Co.

This is an appeal by both parties from a judgment which permits the plaintiffs, owners of a store building, to close up one entrance thereto and a portion of a patio

Of particular interest herein is a central patio in the building, roughly 30' x 36', which is connected to each street by a passageway approximately 13 feet wide and 30 feet long. There are numerous doorways and windows opening off the patio and passageways including seven display windows and two doorways to the Hamner store. There is evidence that the patio is traversed by the general public and used as a short cut between Kinross and Broxton Avenues. The written lease makes no mention of this patio which stands today substantially as when the building was erected at the beginning of Hamner’s tenancy in 1929. Plaintiffs Owsley acquired title to the building in August, 1945, and have leased the corner store to the Whelan Drug Co., Inc. The present action for declaratory relief was filed by the Owsleys in May, 1946, for the purpose of determining Hamner’s rights to the patio area, and to enable plaintiffs to enlarge the drugstore by elimination of the patio, either in whole or in part.

The trial court found “that it was the manifest intention and agreement of the original lessor and defendant Jack Hamner, as lessee, that the latter should have occupancy of

Notwithstanding the above finding, however, the trial court concluded that there was nothing in the lease which required plaintiffs to keep the building in the condition “as it was originally constructed or as it or any portion of it is now, and plaintiffs are entitled to close off the said Kinross Avenue entrance and passageway,” and to enlarge the drugstore by taking in a part of the patio. The effect of this change, as stated in defendant’s brief, will be to convert the patio into a narrow “cul de sac which by its very nature . . . would discourage exploration by passersby and would of course cease being a short cut” from one street to the other. “Thus under the Court’s interpretation, the ‘secondary corner’ feature, and thus material part of the thing hired, would be destroyed.” On the plaintiffs’ cross-appeal it is insisted that the trial court should have ordered that plaintiffs were entitled to close up and build upon the entire patio area up to the wall of the defendant’s store.

Defendant’s brief has presented two questions: “ (1) When a lease has been signed prior to the completion of a building which is constructed around a central patio, may the lessor close off a street entrance or fill in the patio, so as to interfere with the light, air, visibility and access of passersby to the tenant’s display windows and doorways? (2) In an action to determine the extent of appurtenances passing with the leasehold is parol evidence, by the original parties, admissible to show their intention before and at the time of the execution of the lease, when the lease is silent as to what is to pass as appurtenant?”

The plaintiffs’ brief seeks to justify the trial court’s judgment by the citation of section 820 of the Civil Code

More directly applicable to the present situation is the rule laid down in Mayer v. Hazzard, 10 Cal.App.2d 1 , 3 [ 51 P.2d 189 ], where the court said: “Eights of ingress and egress by the usual way pass to the tenant, although not specifically mentioned in the lease, or the word ‘appurtenances’ be not used under the general rule that those rights essential to the use of the demised premises pass as appurtenant thereto. A tenant is entitled to the maintenance of an entrance which is necessary to the full enjoyment of his use of the property, although it may not be the only means of access. (36 Cor. Jur. 33.).”

In the language of Von Rohr v. Neely, 76 Cal.App.2d 713 , 715 [ 173 P.2d 828 ], “A thing is appurtenant to something else when it stands in the relation of an incident to and is necessarily connected with the use and enjoyment of the principal . . . and agreeing in its nature and quality with the thing to which it is appendant or appurtenant.” The lease involved in the Von Eohr case made use of the word “appurtenances,” and the appellate court held that “Parol evidence is admissible to show what was said and done after as well as before the execution of the lease in order to indicate what was intended by the parties to be included as an appurtenance. Such evidence is not to be received for the purpose of varying the terms of the written instrument, but of arriving at the intention of the parties with reference to the subject matter of the lease. Conversations had by appellant with the lessor and with respondent, together with evidence of circumstances and occurrences that will aid the

Plaintiffs’ argument that no uncertainty appears in the written instrument, and that the lease provision giving the lessor the right to make “repairs, alterations, or additions thereto,” in itself authorizes a partial or complete elimination of the patio and one of the street entrances, is untenable. Nor does the fact that “the rent is based completely upon a percentage of the receipts,” alter the situation. In any event, as defendant’s brief avers: “Whether it is considered as an easement, consideration of a contract, or an incorporeal right, the lessee is entitled to all of that for which he contracted at the time the lease was entered into.” The intention of the parties, in this respect, was therefore a vital question.

It will be remembered that the lease in question was executed before completion of the building, and provided, among other things, that the lessors’ architect would cooperate with the lessees in the placing of wiring, ventilators, electrical outlets, etc., and in “arranging entrances.” It cannot be doubted that the general arrangement on the ground floor in its relation to appellant’s store was a matter of some importance. Likewise, it may well be that the patio with its two street entrances, 'affording a short cut and public passageway between Kinross and Broxton Avenues, was deemed a most valuable appurtenance. Indeed, the finding of the trial court expressly recognizes that it was the “manifest intention and agreement” of the original parties that the lessee should have “sufficient additional space ... in the patio for light and air, display of merchandise and to the doorways on said patio and passageway” opening into appellant’s interior store area. The record discloses substantial evidence to justify this finding. But while thus judicially recognizing the patio as a valuable adjunct to appellant’s store, the trial court, as appellant’s brief states, “by its further Findings and Conclusion, substantially deprived the tenant of these very rights when it permitted the closing of the Kinross archway and ruled that the above ‘manifest intention’ applied to only such of the Broxton archway as was necessary.”

The judgment is reversed and the cause remanded for a new trial.

York, P. J., and White, J., concurred.

A petition for a rehearing was denied February 20, 1948, and plaintiffs and appellants’ petition for a hearing by the Supreme Court was denied April 1, 1948.