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So. Center Dept. Store v. So. Parkway Bldg. Corp.

JUNE 27, 1958.

SOUTH CENTER DEPARTMENT STORE, INC., AN ILLINOIS CORPORATION, APPELLEE,

v.

SOUTH PARKWAY BUILDING CORPORATION, AN ILLINOIS CORPORATION, AND SOUTH PARKING, INC., AN ILLINOIS CORPORATION, APPELLANTS.



Appeal from the Superior Court of Cook county; the Hon. NORMAN C. BARRY, Judge, presiding. Reversed and remanded with directions. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.

This is an appeal from a decree granting a permanent injunction. It was granted after and upon a motion for a temporary injunction which was based upon a complaint which prayed for a permanent injunction and the construction of a written lease which was attached to the complaint. The court had before it the complaint, the answers of the defendants and the benefit of arguments of counsel, and in its decree construed the lease and entered the permanent injunction.

This appeal was taken by the defendants. The facts which are disclosed by the pleadings or which are otherwise admitted, are as follows: The plaintiff, South Center Department Store, Inc., appellee, entered into a lease as lessee with the South Parkway Building Corporation, appellant, as lessor, on June 24, 1952. That lease demised certain other premises to the plaintiff for its use in operating a department store. After those premises had been described, the lease contained the following language: "including the exclusive right to the use of the passenger and freight elevators in the leased premises, and together with

". . .

"(b) The non-exclusive right to use the Lessor's parking lot adjacent to the demised premises for the benefit of the Lessee's officers, employees and customers without charge so long as said lot is operated by or for the Lessor for parking purposes."

It is the nature and extent of the right granted by

"(b)" which is the subject matter of this litigation.

The parking lot was not actually adjacent to the premises demised to the lessee, but was adjacent to the building which contained the premises so leased. It had place for the parking of 60 cars, 20 of which had been allocated to a Tastee Freez stand which occupied a corner of the vacant property, leaving 40 car stalls to be shared by the lessee with the tenants and customers of the multi-story building which housed, among other tenants, the Department of Labor of the State of Illinois, a theatre, a grocery store, a five-and-ten-cent store, a drug store and several specialty or service shops. The lessor maintained a watchman at the parking lot, and no other maintenance was necessary.

In 1956 the defendant purchased two pieces of property adjoining the parking lot on the side away from the building in which the plaintiff occupied a part of the space as a store. It spent more than $100,000 in purchasing and improving this additional property. If this property was joined with the original parking lot area, the space would be enlarged from 60 stalls — 20 of which were allocated to Tastee Freez — to 175 stalls. On May 1, 1957 the defendant South Parkway Building Corporation entered into a lease with the other defendant, South Parking, Inc., for the space originally included in the parking lot and the space subsequently acquired adjacent thereto, for the use of the premises by the lessee, South Parking, Inc., as a parking lot as a commercial venture. It is conceded by all that the defendant landlord's interest in the property is only that of a lessor, entitled to receive a prescribed rental from the said South Parking, Inc.

From June 24, 1952, the date of the lease of the store premises between the plaintiff and the defendant-lessor, until at least May 1, 1957, the date of the defendant-lessor's lease with the defendant South Parking, Inc., the plaintiff continued to share the 40 parking spaces on a no-charge basis together with all of the other tenants and customers using the defendant-lessor's building. In some way the plaintiff in July 1957 became cognizant of the change contemplated in the parking arrangement, and advised the defendant-lessor in writing on August 9, 1957 that it, the lessee, did not desire or want any interference with its parking rights and privileges. On August 17, 1957 the defendant-lessor advised the plaintiff in writing that it had leased the parking lot to an independent parking lot operator and that the parking lot was therefore no longer to be operated "by or for the lessor," and that in due course all of the tenants would receive notice of the change. On August 19th a notice was given to all the tenants in regard to the parking facilities to be furnished by the new lessee. On August 30, 1957 the complaint was filed.

The basic problem presented in the construction of the lease is as to the nature and extent of the right that the clause of the lease above quoted gave to the plaintiff-lessee in the lot owned by the defendant-lessor and used at the time of the execution of the lease for parking. By its express terms the right which the lessee has is a "right to use," and is "nonexclusive." The right was shared with all of the other lessees in the lessor's building, and all of their employees and customers. Again, by its express terms, the use was "without charge." The term of the grant of this no-charge, nonexclusive right to use was "so long as said lot is operated by or for the Lessor for parking purposes."

In an early Illinois case (Holladay v. Chicago Arc Light & Power Co., 55 Ill. App. 463, 466-467) the court considered the distinction between a lease and license, as follows:

"Whether a contract be a lease or a license will be determined, not from what the parties to it may choose to call it, nor from the language used, but from the legal effect of its provisions.

"Whether a tenancy is created or not depends upon the intention of the parties, although this intention must in most cases be inferred from the circumstances which attend the case. `In general, the question of possession will determine the matter.' Alwood v. Ruckman, 21 Ill. 200; see, also Gunning Co. v. Cusack, 50 Ill. App. 290.

"`An instrument that merely gives to another the right to use premises for a specific purpose, the owner of the premises retaining the possession and control of the premises, confers no interest in the land and is not a lease, ...


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