Von Rohr v. Neely

WILSON, J.

This appeal is a sequel of the refusal of the trial court to receive parol evidence for the purpose of re

[714]

vealing the meaning of the term “appurtenances” in a lease. In June, 1945, respondent’s predecessor in ownership executed a lease in writing to appellant for premises described only as “130 East Garvey Boulevard, El Monte, . . . together with the appurtenances” for use as a coffee shop or lunch room. The building is approximately in the center of the lot and is situated about 32 feet from its front line, with an unoccupied area of about 30 feet on each side of the building. The vacant portion of the lot is used by appellant’s patrons for parking their automobiles. Appellant maintained a large electric sign on the front of the lot advertising his place of business. The real property was conveyed by the lessor to respondent who, without the consent of appellant, removed the sign and commenced an excavation on the front of the lot in preparation for the erection of a real estate office. Appellant brought this action for the purpose of obtaining an injunction restraining respondent from continuing his building operations and from interfering with appellant’s use of the property. From a judgment in favor of defendant plaintiff appeals.

Appellant contends that the vacant area surrounding his coffee shop is included in the term “appurtenances” in the lease, and respondent maintains that the lease covers only the building and the private garage at the rear which is specifically mentioned in the lease.

When the case came on for hearing the trial judge invited counsel for the parties into his chambers where he and counsel discussed the theory of the case. The judge stated that in his opinion “the terms of the lease were clear and were not susceptible to interpretation” and that he would not permit the introduction of any testimony to explain or interpret its provisions. The case was then called in open court where the lease, a sketch of the premises, and photographs were introduced in evidence. Defendant made a motion to exclude any evidence on the ground that the terms of the lease were clear and not subject to interpretation. The motion was granted.

Appellant offered to introduce evidence to show that the property had been used for many years as a “drive-in” restaurant, that it was so used at the time the lease was made, and that it was the intent of the parties that its use should be continued in the same manner and for the same purpose. The court rejected the offer.