#### Shaft, Respondent, vs. Carey and others, Appellants.

*May 18*

*June 21, 1900.*

*Landlord and tenant: Leaseholds: Appurtenances of ingress and egress: Restrictions in lease: Injunctions.*

1. Appurtenances of ingress and egress essential to the use of leased premises and reasonably within the contemplation of the parties at the time of the leasing are as much a part of the estate conveyed as the premises specifically described. Thus, where a passageway and door connecting the office of an hotel with a room in the same building leased for a saloon or bar room existed at the time of a renewal of the lease and were essential to the proper use and enjoyment of the demised premises, the right to use them became part and parcel of the leasehold interest and could not lawfully be interfered with by the lessor or his grantees during the term.

2. After the demise of a room in a hotel for a saloon for the term of one year, which was renewed for four years, changes were made whereby the demised room was connected by a door and passageway with the hotel office. There was no agreement in the lease as to such door and passageway or their use in connection with the demised premises. *Held*that, basing his right to relief upon his lease, the tenant could not maintain an action against the landlord for closing the door and passageway unless it definitely appeared that they existed when the lease was renewed.

3. Where a tenant leased for a saloon a room adjoining the office of his landlord’s hotel, with the exclusive privilege of selling liquors and cigars in the hotel block, and the landlord built an annex to the hotel, adjoining the office, used the side of the hotel block as a wall for the new erection, cut a doorway from the hotel office into the annex, and closed the one leading into the room occupied by the tenant, the annex became a component part of the hotel block, and its construction was a mere subterfuge to avoid the consequences of the restrictions of the lease, and entitled the tenant to enjoin the selling of liquors and cigars therein.

Appeal from a judgment of the circuit court for Eond du Lac county: Michael Kibwah, Circuit Judge.

*Reversed.*

On July 1,1897, the plaintiff leased of the defendant *Oarey*
      *274the saloon or bar room of the Palmer House, in the city of Fond du Lac, for the term of one year, with the privilege to' extend the same for four years longer. The lease contained a stipulation that the plaintiff was to have the exclusive right to sell liquors and cigars in the “ Palmer House Block.” Plaintiff went into possession, and, at the expiration of his term, gave due notice of his election for an extension. On November 12,1898, *Carey*leased to the defendant *Matohette*the hotel building known as the “Palmer House,” except certain rooms that had theretofore been leased to others, for a period of five jmars. This lease contained a stipulation that the “ lessee is not to sell or permit to be sold any wine, beer, or liquors, or any kind of cigars, in said hotel, except as is hereafter agreed.” After the original lease was made with plaintiff, and in the years 1897 and 1898, *Caray*made changes in the inner construction of the hotel, and brought the office and reception room for guests down to the ground floor in the room adjoining the room leased to plaintiff; constructing a passageway between said rooms, placing only a partial screen, by swinging door, with a large glass panel, with the word “Bar” painted thereon, across the same, opening in and out on a swing hinge. This, it is claimed, was done pursuant to an agreement made at the time said first lease was made. After setting out the facts stated, the complaint alleges that the defendants became jealous of his rights and privileges under his lease, and attempted to avoid the covenants in said lease, and conspired to take away the profits derived from the exclusive right to sell cigars and liquors in said building, and to that end built a lean-to on the east end of the hotel building, using the east wall of the hotel building as one side of the new building, fitted it up for saloon purposes, opened a door from the Palmer House billiard room into said building, and commenced selling liquors and cigars therein. Ón May 11, 1899, in the nighttime, the defendants closed up and barricaded the door lead*275ing from the hotel office to plaintiff’s saloon, and cut off his connection therewith. The plaintiff brings this action to require the defendants to remove said barricade, and to restrain them from selling liquors and cigars in the so-called ■“ Palmer House Annex.”

The defendants answered, setting up the lease to *Mateh-•ette,*admitting the closing up of the door, the building of the “ Annex,” and the sale of liquors and cigars therein, but claimed that the so-called “ Annex ” was not a part of the Palmer House Block, and was not covered by the stipulation in plaintiff’s lease. The defendant *Taylor*answered, denying any interest, and alleging that he was merely an employee and agent of the defendant *Matchette.*Upon certain affidavits, showing that the name “Palmer House Block” was confined to the building itself, and did not cover any of the adjacent land owned by *Gcvrey,*and upon the answers •of the defendants, a motion was made to dissolve the temporary injunction obtained by plaintiff, restraining them from selling liquors or cigars in the “ Annex.” A counter motion was made by plaintiff for judgment upon the pleadings. The latter motion was granted, and from the judgment so entered the defendants have appealed.

For the appellants there was a brief by Bloodgood, *Kem-iper*Bloodgood, attorneys, and *Jaehson B. Kemper*and *H. II. Jlaydm,*of counsel, and oral argument by *Mr. Harden.*

For the respondent there was a brief by *KdwardS.*Bragg, •and oral argument by *John I. Thompson.*

BaRdebit, J.

The plaintiff’s motion for judgment ought not to have been granted unless it can be said that every fact essential to his entire cause of action has been alleged, •and has not been put in issue by the defendants’ answers. By his complaint the plaintiff seeks to have the barricade ■erected by defendants at the rear door of his saloon'removed, •and also to restrain the sale of liquors and cigars in the so-*276called “Annex.” The first ground of relief rests upon the implied covenant of quiet enjoyment of the leased premises, and the other upon the positive covenants contained in his lease, giving him the exclusive right of sale of liquors and cigars in the Palmer House Block. Whether any ground for relief exists as to the first question suggested depends upon the facts alleged regarding the leasing of the premises. The premises covered by the lease are mentioned as the “ saloon or bar room of the Palmer House,” including the card rooms contiguous thereto; also, a coal bin in the basement, and space therein for his ice box and for the storage of liquors. It appears that at the time the original lease was made the office and guest room of the hotel were on the second floor of the hotel building, somewhat remote from the room in question. It is not clear from the complaint just how they were connected, although there is an allegation that there was interior communication thereto from the office of the hotel. By subsequent allegations of the complaint it appears very clearly that the passageway leading to the door that was closed up was not in existence at the tfme the original lease was made. It is alleged that, as an inducement for plaintiff to enter into a lease for said room, *Carey*represented that it was his purpose to bring the hotel office and reception room for guests to the lower floor of the building, “and by a door connect the said office and reception room immediately with the said Palmer House saloon or bar room.” It is also further alleged that down to May 11,, 1899, *Carey*fully complied with the terms of said lease, “and also, in the years 1897 and 1898, made the changes in the inner construction in said hotel, and brought the office and reception room for guests clown from the second floor to the ground floor, in the room next adjoining the rooms leased to the plaintiff, constructing a passageway between the said-rooms, and placing only a partial screen, by a swinging door with a large glass panel, with the sign ‘ Bar ’ painted thereon, *277across the same, opening in and out upon a swinging hinge.” Whether this was done and completed prior to the renewal •of the lease on July 1, 1898, the complaint fails to state. It is evident from the terms of the lease that the proximity of the room leased to plaintiff to the adjoining rooms of the hotel was a matter of importance to the parties, and bore a direct relation to the value of the leasehold. When the lease was renewed in 1898, the plaintiff was entitled to the enjoyment of his leasehold interest with the appurtenances of ingress and egress as they then existed. In other words, when a person leases a room in a building, with doors and passageways so connected with other rooms as to be essential to the use and enjoyment of the one leased, the law implies a covenant that such use shall not be interfered with during the continuance of such term. The appurtenances of ingress and egress, essential to use and reasonably within the contemplation of the parties at the time of the leasing, are as much a part of the estate conveyed as the room itself, and any interference therewith is an invasion of the rights of the lessees for which the law affords a remedy. Rut the implied covenant of quiet enjoyment only applies to conditions in existence at the time of the leasing. It does not extend to things not *in esse*at the time of the demise. 1 Taylor, Landlord & T. § 256. The statute (sec. 2204, Stats. 1898) to the effect that no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not; does not apply to leasehold estates. This is the rule now established in New York, from which our statute was taken, although a different conclusion was first arrived at. *New York v. Mabie,*18 N. Y. 151. If the door and passageway in question existed at the time the lease was renewed, and were essential to the proper use and enjoyment of the estate conveyed, the right to such use was more tharf a mere privilege or easement. It becomes a part and parcel of the leasehold interest, binding upon the lessor *278or his grantees. Plaintiff being in possession of the rooms at the time *Matchette*took his lease of the hotel building, the latter was charged with notice of the plaintiff’s rights and interests in the premises, and could claim no greater privileges than his lessor. *First Nat. Bank v. Chafee,*98 Wis. 42, and cases cited. *Our*great difficulty has been to determine what the precise conditions were at the time the lease was renewed. It is quite certain from the complaint that, at the time the original lease was made, the door and passageway in controversy were not in existence. The allegation of the complaint that the changes in the inner construction of the hotel were made and the office brought down to the first floor *“*in the years 1897 and 1898 ” is not an allegation that the door and passageway existed when the lease was renewed. The plaintiff bases his right to relief upon his lease, and, unless some right expressly or impliedly granted thereby has been invaded, he has no legal ground of complaint. If the door and passageway were constructed *after*the lease was renewed, the use of them by plaintiff was merely permissive, and could be revoked at any time, so far as any covenant in the lease is concerned. To entitle the plaintiff to a judgment requiring the removal of the barricade to the door, the complaint should have alleged with definiteness the precise condition of things at the time of-the renewal, or proof should have been taken so that the court could have been advised of the facts as a basis for judgment. The failure to furnish such basis, either by definite allegation or proof, is fatal to the judgment rendered.

The Other feature of the case relates to - plaintiff’s right to an injunction restraining the sale of liquors and cigars in the so-called *“*Palmer House Annex.” Defendants’ contention is that the restriction in the lease cannot be construed to cover the addition made to the *“*Palmer House Block ” after the lease was executed. The exclusive right of sale of the commodities mentioned, granted plaintiff by his lease, *279was a valuable one. Such right was recognized in the lease of the hotel from *Carey*to *Matchette,*in which the latter bound himself not to sell the same, or'permit them to be sold, in the hotel, except as he might secure plaintiff’s lease. *Matchette*knew of plaintiff’s rights, and recognized them so far as to make the pledge, above referred to. Such being the case, it is immaterial to determine whether the covenant in plaintiff’s lease is such as to run with the land. The defendants claim, however, that the grant of the exclusive right to sell in the “ Palmer House Block ” ought not and cannot be construed to cover the addition subsequently built. The building of the addition was a mere subterfuge to avoid the consequences of the restrictions in the leases. The Annex became and is a component part of the hotel building.. One of its walls is one of the walls of the hotel, without which the Annex could have no existence. It is directly connected with the main building by proper doors and entrances. If it were entirely disconnected with the hotel building, we should be compelled to say that the language of the plaintiff’s lease could not be construed to cover lands outside of the building known as the “ Palmer House Block.” But when the added structure became an integral part of the block, so constructed and designed to be such, the covenant, being continuing, should be construed to cover the block in its entirety, in whatever shape it may be, during the life of the lease. The law will not uphold a mere trick or. subterfuge admittedly adopted to defeat the plaintiff’s rights. The denial of the motion to dissolve the injunction needs no justification, any further than a statement of the facts.

For the reasons stated, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.

*By the*Court.— So ordered.