Appeal from the Twelfth District.

Suit brought Oct. 18th, 1859, to enjoin defendants from removing a brick building erected on a lot within the Government Reserve in San Francisco.

The complaint alleges that on the sixth day of December, 1856, Edward Field leased to defendants, Bovee and Marden, a certain lot of land situated on the north-west corner of Oregon and Front streets, in San Francisco, fronting thirty feet on Front street by a uniform depth of one hundred and thirty-seven and a half feet on Oregon street, with the appurtenances, from the fifteenth day of December, 1856, for the term of two years and eleven months at the monthly rental of seventy-five dollars per month, payable on the fifteenth day of each month; that on the ninth day of December, 1856, Field conveyed by deeds his interest in a water lot, of which said leasehold premises is a part, to plaintiff, which deed was on the same day duly recorded, and that at the same time Field assigned the lease to plaintiff; that at the time of the execution of this lease, and for a long time previous thereto, there was a valuable brick building standing on said premises, attached to the soil and a part of the premises so leased by Field to Bovee and Marden, and a part of the premises so conveyed by Field to plaintiff; that Bovee and Marden ever since the assignment of the lease to plaintiff have paid rent to him under said lease, excepting for the month ending November 15th, 1859 ; that the defendants on the seventeenth day of October, 1859, unlawfully commenced to pull down and carry away the bricks in said building and to demolish the same, and now are unlawfully pulling down and carrying away said bricks and demolishing said building; that the building is of the value of $3,000 and will be rendered utterly valueless to plaintiff and unfit for occupation, etc., unless the defendants are restrained, etc.; and that this plaintiff has suffered damages by reason of said unlawful acts of said defendants in pulling down and carrying away said bricks and demolishing said building, in the sum of $1,000.

The answer contains a denial of but one allegation in the complaint, to wit: the allegation that Bovee and Marden entered under the lease set out in the complaint. The defense is that under the lease of Dec. 1st, 1855, and the agreement made at the same time, defendants have a right to remove the building; and that the defendants consented to receive two certain new leases, to wit: one from Field to Bovee and Marden, dated Dec. 6th, 1856, and the other from Arrington to Bovee and Marden dated Dec. 8th, 1856, in order that, on the completion of the purchase by plaintiff from Field, he, plaintiff, might hold a separate lease of his divided portion of said premises, and for the purpose of facilitating the negotiations between said plaintiff and said Field, and solely for their accommodation and especially for the accommodation of the said plaintiff.

On the trial, plaintiff put in evidence the lease referred to in the complaint, dated Dec. 6th, 1856, from Field to Bovee and Marden, the assignment thereof, and the deed from Field to plaintiff, and' rested. In this lease there is a covenant on the part of the lessees that they will “ on the last day of the said term, or other sooner determination of the estate hereby granted, peaceably and quietly leave, surrender and yield up all and singular the said demised premises, reasonable use and wear thereof and damages by the elements excepted,” and also a covenant for quiet enjoyment.

Defendants put in evidence the Shillaber lease of the Government Reserve, being the well known lease by Capt. Keyes, on the part of the United States, in 1849, to Shillaber for ten years, with a clause giving to the lessee the right to remove any buildings erected by him on the property during the lease.

Defendants next put in evidence a lease from Field to Bovee and Harden, dated December 1st, 1855, of a lot, commencing on the north-west corner of Front and Oregon streets and running northerly sixty feet by one hundred feet deep, for three years and nine months from date, at the monthly rent of one hundred and fifty dollars; and then called Edward Bosqui as a witness, who was agent of Field, and as such made the lease, and who testified as follows : “ The lot leased to Bovee and Harden was eight or ten feet under water at the time the agreement for the lease was made. The agreement for the lease was made a mouth or more before the lease was executed. Bovee conducted the negotiation with me. He said he wanted to put up brick buildings, and wished Field to purchase the improvements at the expiration of the term, provided he became the owner of the fee of the land. I would not agree to it. He then spoke about removing the buildings. I told him we would have no claim to the buildings, provided the rent was paid. He seemed to doubt whether he could remove the buildings. He took legal advice, and was advised he could. I consented that he might, and he satisfied himself that he had the right to remove the buildings.”

That portion of this testimony going to show a verbal agreement as to removal of buildings was objected to by plaintiff, as varying the terms of the lease. Overruled, and exceptions.

The witness continued: “ I had full power of attorney from Field. The lot was filled in by Bovee and Harden after the agreement for the lease, and the building now on the lot was put up by them after the lease was executed. They have been in possession ever since till last November.

The plaintiff purchased the premises on which the building in controversy stands at the State sale, and then purchased Field’s unexpired term.

The second lease from Field to Bovee and Harden, dated December 6th, 1856, was made to simplify the transaction, and at the request of Jungerman. The object was to divide this thirty feet from Arrington’s thirty feet north of it, so that Jungerman could receive the rent for his own lot. It was one of the conditions imposed by Jungerman in buying from Field. The only object was to apportion to Jungerman his share of the rent under the first lease so he could go directly to Bovee and Marden for it. I applied to Bovee to do it, and explained to him the object, and he consented, executed the lease, and also another for the north thirty feet held by Arrington.

The Arrington building was the same originally as the one on this lot. The rent of the whole sixty feet was the same under the two new leases as under the original lease.”

Plaintiff made the same objection here to a verbal agreement to vary the terms of the second lease. Overruled, and exceptions.

The lease of December 1st, 1855, from Field to Bovee and Marden contained a covenant by the lessees that they would “ on the last day of said term or other sooner determination of the estate hereby granted, peaceably and quietly leave, surrender and yield up unto the said party of the first part, all and singular the demised premises ; ” but no covenant for quiet enjoyment.

Arrington was then sworn for defendant, and testified that he bought Field’s unexpired term in the northerly thirty feet some time between the first and fifth of January, 1857; that negotiations had been going on for some time before ; and that the second lease to Bovee was made in view of this purchase.

Defendants then put in evidence an agreement, dated December 8th, 1856, between Field of the first part, by Bosqui his agent, and Bovee and Marden, which runs : “ that whereas said party of the first part has canceled a certain lease and executed to said parties of the second part another, bearing date the sixth instant; now in consideration of the premises,” etc., Bovee and Marden agree to pay Field thirty dollars, monthly, on the fifteenth of each month, during the term of two years and nine months from the fifteenth instant, and thereafter until the expiration of said term.

The reversion or interest of the State in the lot leased by Field to defendants was sold in 1854 or 1855, under a sale made by the State Commissioners, in pursuance of statutes authorizing it. The premises were sold in two parcels; plaintiff becoming the purchaser of that portion of the lot on the north-west corner of Front and Oregon streets, thirty feet by one hundred, and Arrington becoming the purchaser of the remainder, or the northerly half—that is, thirty feet by one hundred feet.

Defendants then put in evidence a lease, dated December 8th, 1856, from Arrington to Bovee and Marden, of a lot commencing on the west line of'front street, sixty-one feet, eight inches southerly from the north-west corner of Front and Jackson, and running southerly thirty feet by one hundred and thirty-seven and one-half feet deep, for two years and nine months, from December 15th, 1 856, at the monthly rent of one hundred and five dollars. The lease contained the same covenant for surrender of the premises at the end of the term and for quiet enjoyment as the lease by Field to defendants of December 6th, 1856.

This was all the evidence. The Court below gave plaintiff decree, enjoining defendants from removing the building and for costs. A motion for new trial having been overruled, defendants appeal.