GEORGE T. STOCKHAM, Appellant,
BOROUGH BILL POSTING COMPANY, Respondent.
APPEAL by the plaintiff, George T. Stockham, from a judgment of the Municipal Court of the city of New York, borough
of Brooklyn, in favor of the defendant, rendered on the 28th day of September, 1910, dismissing the complaint.
Charles S. Taber, for the appellant.
Peter P. Smith [Stephen J. McTague with him on the brief], for the respondent.
The plaintiff is the owner of certain real estate in the borough of Brooklyn, on the northwest corner of Atlantic avenue and Cleveland street, having a frontage on the avenue of over one hundred feet. On the 22d day of March, 1910, the property was inclosed by a substantial board fence on the line of Atlantic avenue, which had been constructed by the plaintiff at an expense of more than sixty dollars, and which the evidence shows would cost more than that sum to replace. On the day named the plaintiff by his agent made an agreement in writing with the defendant, as follows:
'BROOKLYN, N.Y. , March 22nd, 1910.
'In consideration of a yearly rental of $25 00/100 dollars, the undersigned, owner of lots located at N.W. cor. Atlantic Avenue & Cleveland St., Borough of Brooklyn, City of New York, hereby leases to the Borough Bill Posting Company, Brooklyn, N.Y. , the exclusive privilege of erecting and using fence or sign board to be located on said lots for bill posting purposes; the owner reserving the right in case said property is sold or required for building purposes, to cancel all privileges upon returning to the Company a pro rata amount of said yearly rent; all fences or sign boards erected by the Company remain its property and it has the right to remove the same at the expiration of this lease. Privilege of renewal is also given upon the same terms.'
Shortly after the execution of this agreement, the defendant tore down and took away the plaintiff's line fence, and this action was brought to recover the damages thereby occasioned. After the evidence was closed on both sides, the court dismissed the complaint with the following memorandum: 'The lease (Defendant's Exhibit # 1) is still in existence, and, therefore, the plaintiff's complaint as to the damages sustained is prema
ture. If the defendant will fail or neglect to replace the plaintiff's fence in its original position, after the expiration of the aforesaid lease, then a cause of action for damages sustained would arise against the defendant; ergo, after trial.'
The court evidently adopted the language of the document itself in treating and regarding it as a lease. It is not a lease. It created no tenure and gave no estate, or even easement in the land. The plaintiff remained in possession of his land, and the defendant acquired a license only, the license being limited to the precise and express terms of the document. The license did not pretend to include a right to tear down and carry away the plaintiff's inclosing fence, but expressly limited the defendant to the privilege of erecting a fence or signboard of its own to be located on the lots and to be removed by it when the privilege ceased, either by the lapse of time or a cancellation of the privilege. It follows that whether the action be regarded as for waste, or in trover or trespass, it was fully made out and the plaintiff was entitled to judgment.
In Jackson v. Babcock (4 Johns. 418) it was held that an instrument executed under seal by an owner of real estate, giving to another the right to build upon and to occupy the land at pleasure, conferred a mere license or ...