Bellows Co. v. Covell

Ohio Court of Appeals

Bellows Co. v. Covell

162 N.E. 621, 28 Ohio App. 277, 6 Ohio Law. Abs. 307, 1927 Ohio App. LEXIS 409

CourtOhio Court of Appeals

DecidedOctober 24, 1927

Docket106

StatusPublished

This text of 162 N.E. 621 (Bellows Co. v. Covell) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bellows Co. v. Covell, 162 N.E. 621, 28 Ohio App. 277, 6 Ohio Law. Abs. 307, 1927 Ohio App. LEXIS 409 (Ohio Ct. App. 1927).

Pincite

Opinion

LLOYD, J.

“Obviously the question to be determined is whether, under the circumstances here involved having in mind the character of the premises leased and the purposes for which leased, the proposed changes therein constitute such waste as will be enjoined.

The law formerly regarded as waste anything that in any way changed the identity of the leased premises and was most exacting in repressing such acts. It seems not to have mattered whether what was done was injurious or beneficial to the reversion, it being considered of the utmost importance that the condition of the premises should remain unchanged so that there might arise no confusion as to its identity. Such was the rule of the common law as transmitted to us from England, but it seems now to he settled that many things may be done by a tenant in this country that, if done in England, would be waste.

The Supreme Court, in Crockett v. Crockett, 2 OS. 101, many years ago, decided that the strict doctrine of the common law, in regard to waste, has never obtained in Ohio, and generally the rule now is that an act, though perhaps technically waste, which in fact results in improving instead of doing injury to the inheritance, will not he enjoined. Waste of this character has been designated as meliorating or ameliorating waste.

*308 In the instant case the lease provided that the leased premises, in conjunction with other property, was to be generally developed as . a golf course and this recital, as we view it, plainly indicates that such changes as became necessary to accomplish this purpose were within the contemplation of both lessor and lessees, and, by implication at least, whatever was reasonably required to so develop the property, for this designated use was, by the terms of the lease, permissible.

Even if we were to conclude that the lease does not impliedly nor expressly authorize plaintiff to proceed as proposedt we are unable to see that, by so doing, any injury will result to the defendants. The land area will be increased for either agricultural or for allotment purposes, the latter possibility being the most probable, if we may vision the changes that 25 or 30 years will bring to this locality.

It is the decree of this court, therefore, that the cross-petition of the defendants be dismissed and that plaintiff be permitted to proceed with its plan to decrease and deepen the pond in question, but that the portion thereof located on the leased premises shall not cover more than ,4 acres thereof, nor be more than seven feet in depth and that . the material taken therefrom shall be deposited upon the leased premises. We do not purpose hereby to abrogate or change any of the terms or conditions of the lease, and accordingly limit the decree herein to the conclusions above expressed.”

(Richards and Williams, JJ., concur.)

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LLOYD, J.

“Obviously the question to be determined is whether, under the circumstances here involved having in mind the character of the premises leased and the purposes for which leased, the proposed changes therein constitute such waste as will be enjoined.

The law formerly regarded as waste anything that in any way changed the identity of the leased premises and was most exacting in repressing such acts. It seems not to have mattered whether what was done was injurious or beneficial to the reversion, it being considered of the utmost importance that the condition of the premises should remain unchanged so that there might arise no confusion as to its identity. Such was the rule of the common law as transmitted to us from England, but it seems now to he settled that many things may be done by a tenant in this country that, if done in England, would be waste.

The Supreme Court, in Crockett v. Crockett, 2 OS. 101, many years ago, decided that the strict doctrine of the common law, in regard to waste, has never obtained in Ohio, and generally the rule now is that an act, though perhaps technically waste, which in fact results in improving instead of doing injury to the inheritance, will not he enjoined. Waste of this character has been designated as meliorating or ameliorating waste.

*308 In the instant case the lease provided that the leased premises, in conjunction with other property, was to be generally developed as . a golf course and this recital, as we view it, plainly indicates that such changes as became necessary to accomplish this purpose were within the contemplation of both lessor and lessees, and, by implication at least, whatever was reasonably required to so develop the property, for this designated use was, by the terms of the lease, permissible.

Even if we were to conclude that the lease does not impliedly nor expressly authorize plaintiff to proceed as proposedt we are unable to see that, by so doing, any injury will result to the defendants. The land area will be increased for either agricultural or for allotment purposes, the latter possibility being the most probable, if we may vision the changes that 25 or 30 years will bring to this locality.

It is the decree of this court, therefore, that the cross-petition of the defendants be dismissed and that plaintiff be permitted to proceed with its plan to decrease and deepen the pond in question, but that the portion thereof located on the leased premises shall not cover more than ,4 acres thereof, nor be more than seven feet in depth and that . the material taken therefrom shall be deposited upon the leased premises. We do not purpose hereby to abrogate or change any of the terms or conditions of the lease, and accordingly limit the decree herein to the conclusions above expressed.”

(Richards and Williams, JJ., concur.)

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Bluebook (online)

162 N.E. 621, 28 Ohio App. 277, 6 Ohio Law. Abs. 307, 1927 Ohio App. LEXIS 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bellows-co-v-covell-ohioctapp-1927.