Bo Kay Chan v. Gerdon Land Co.

GOODELL, J.—

This appeal was taken from an order granting a preliminary injunction.

Appellant Gerdon Land Company is the owner of a piece of property in San Francisco on the westerly side of Grant Avenue between Sacramento and Clay Streets, with a frontage of 45.10 feet on Grant Avenue and a depth of 110 feet running through to the easterly line of Waverly Place.

On September 30, 1946, a lease written in Chinese characters was made by the land company to the plaintiffs, of a part of the premises for the term commencing October 1, 1946, and ending September 30, 1954, at the monthly rental of $300, for restaurant purposes. The father of the plaintiffs had occupied the same premises as a restaurant for many years before 1946.

The property is divided into three main parts. The Grant Avenue frontage of 45.10 feet is, roughly, in three 15-foot subdivisions. The northernmost 15-foot frontage is a store numbered 729 Grant Avenue; the middle 15-foot frontage is a store numbered 727, and the .southernmost 15-foot frontage, numbered 723-725, is the corridor entrance to plaintiffs’ restaurant which occupies the westerly part of the building in the rear of all three 15-foot frontages.

There is a light well near the center of the building, occupying an area 12 by 15 feet immediately back of the store numbered 727, which well the plaintiffs claim is part of their leased premises, while defendants claim the contrary.

For some time a screen door had led from the restaurant into the light well, which among other things enabled the restaurant’s employees to go into the well for a breath of air. In the wall opposite, a window opened from the kitchen into the light well, supplying air and light to the kitchen. Sunken

[726]

beneath the floor of the light well were three concrete tanks which formerly were used by the restaurant for the storage of food.

The floor of the well was about 3 feet below that of the stores and restaurant, and steps connected the higher with the lower level at the doorway. In October, 1948, defendants extended the floor of the store at 727 Grant Avenue across the light well, thereby raising the floor of the well about 3 feet and cutting off access to the three concrete storage tanks. Defendants also boarded up the doorway into the well, thereby cutting off access thereto from the restaurant and removing one source of air, and they also made a change in the window. Over the well they built a new ceiling or roof.