Hotel Wisconsin Realty Co. v. Phillip Gross Realty Co.

198 N.W. 761, 184 Wis. 388, 1924 Wisc. LEXIS 241

• Court: Wisconsin Supreme Court
• Decided: October 14, 1924
• Status: Published

Opinions

The following opinion was filed May 6, 1924:

Crownhart, J.

This is an action in the nature' of quia timet to restrain thé defendant during the term of a certain lease from claiming or asserting any right, title, or interest in the alley adjacent to the leased premises, or from assert-' ing in any way that the use of said alley by the plaintiff in any manner not inconsistent with the public easement is a breach of the lease.

The plaintiff, a corporation, according to the complaint, is the assignee of a certain ninety-nine year lease executed by the defendant as lessor of certain premises in the city of Milwaukee, described as the north forty feet of lot 10 in block '60 in the Fourth ward of the city of Milwaukee, Milwaukee county, Wisconsin, in the plat of the town of Milwaukee on the west side of the river, in the northeast quarter of section 29, town 7 north, range 22 east.

It is alleged that the north forty feet of said lot 10 in block 60 abuts upon the street now called Third street in the city of Milwaukee'upon the west; upon an alley running easterly from Third street upon the north; and upon an alley running parallel with Third street upon the east; and that the lands so described included the title in fee to the center of Third street abutting on said lot 10, to the center of the alley on the north of said lot 10, and to the center of the alley on the east of said lot 10.

The lease to said premises contained the following clauses:

“That the said party of the first part as lessor, in consideration of the rents hereinafter reserved and of the covenants and agreements herein contained on the part of the party of the second part as lessee, to be kept, performed, and fulfilled, has demised and leased, and by these presents does hereby demise and lease unto the said lessee, and the said lessee does hereby rent and take as lessee the entire right, title, and interest either at law or in equity, either in possession or in expectancy, either as legal or equitable owner or holder, in and to” the premises above described. . . .

“To have and to hold the above described premises with all rights, privileges, easements, appurtenances, buildings, and improvements thereto attaching, pertaining, or belonging unto the said lessee for the term of ninety-eight years and five months, commencing on the 1st day of March, 1913, and ending at the close of the 31st day of July, 2011, unless said demised term shall be sooner terminated as hereinafter provided.”

Also the following:

“And that said lessee will save said lessor harmless from all claims by the city of Milwaukee, or any other public authority, for compensation or damages by reason of use or occupation of or intrusion upon any street or alley, or. part thereof, adjoining said demised premises by said lessee or any one occupying - said demised premises under said lessee or in connection with any building now situated or hereafter to be situated upon said demised premises.”

It was further provided in the lease that—

“No petition for the change or- improvement of the streets, alleys, or sidewalks contiguous to the demised premises, or requesting the municipal authorities to take any action or to do anything with respect thereto, or with respect to any adjoining buildings or property, shall be presented without the signature thereto of the lessor jointly with the lessee.”

The lease also provided, in case of any breach of the covenants thereof by the lessee, that the lessor might, on notice, after sixty days, declare said lease forfeited.

The plaintiff owns a million-dollar hotel on the leased premises. It has acquired a piece of land directly north of its hotel on the opposite side of the alley for the purpose of erecting thereon a building to be utilized for hotel rooms in connection with its present hotel. It is alleged that, in order to utilize the same in connection with the hotel, it is necessary for the plaintiff to bridge over the said public alley, and that the construction proposed will not interfere with the public easement. The plaintiff petitioned the common council, without joinder or consent of defendant, for a permit to erect said structure, which permit was granted. Thereupon it claims that the defendant gave notice to plaintiff that unless such petition was withdrawn the defendant would forfeit the lease. The plaintiff thereupon withdrew said petition and abandoned its permit.

The plaintiff alleges that the defendant demands a large sum as an additional rental for the erection and use of said bridge, and threatens that unless the plaintiff will pay such additional rent it will forfeit the lease in case of the erection of said proposed bridge without lessor’s consent.

The court will endeavor to construe the various provisions of the lease in harmony with each other and to give each provision effect according to the evident intent of the parties.

Undoubtedly the plaintiff has the fight to make such use of the alley adjoining the premises as will in no wise interfere with the public easement or burden the leasehold in excess of the conditions of the lease. Also the city council of Milwaukee had power to grant a permit to the plaintiff to erect a structure over the alley, if the same would not unreasonably obstruct the public use of the alley, such permit, however, to be revocable, and any such structure liable to be abated at the option of the city at any time, upon ten days’ notice. Sub. (1), sec. 66.05, Stats. 1923; sec. 80.47, Stats. 1923.

Such a change in the alley as the building of a structure over the alley, connecting an adjoining building on the north, would seem clearly to come within the restrictive clause heretofore quoted. The plaintiff was therefore required to secure defendant’s signature to the petition. That seems to be the plain intent of the language of the clause. This it did not do, and the defendant objected to the proposed structure, as it had,a right,to do under its lease.

This is an action in equity, and the plaintiff must show that it has complied with the requirement of the lease before it may hale the defendant into court demanding equitable relief. This it has not done.

Failing to allege that it complied with this provision of the lease as a condition precedent to petition by plaintiff to the common council, the complaint fails to state a. cause of action. .

By the Court. — The order of the circuit court sustaining the demurrer to the complaint is affirmed.