#### Rebecca E. J. Kugler, Administratrix *v.*The United States.

*On the Proofs.*

*The claimant's intestate leases Jas farm to the State of Ohio at a certain stipulated, rent per acre, to he occupied for the purpose of a military camp, with an additional covenant on the part of the State to pay any damages that may he done to other property hy reason of the occupancy of the premises as a military camp. The State of Ohio assigns the lease to the United States. The United States enter into possession and occupy the premises under the lease, paying the stipulated rent, and afterwards, hy their duly authorised agent, give notice that they ivill cease to oeeupy a portion of the premises sgiecially designated, and thereupon offer to surrender the part designated to the claimant. JTe refuses to accept the surrender, and the United States continue to occupy the part of the premises not proposed to he surrendered. The claimant demands the stipulated annual rent for the time the defendants occupied any part of the same. Damages are also claimed for injuries done to the premises, and to crops of adjacent land belonging to the claimant, hy the soldiers.*

I. Payment of the stipulated rent *hy tho government*is sufficient evidence that its entry was under and as assignee of a lease ftom tho owner to a third party, and not hy its right of eminent domain.

II. Where the government enters under and as assignee of a lease for one year, and continues to hold after the term, it is a tenancy from year to year upon the terms of tho lease, and subject to all its covenants.

III. Where the government enters upon a tract of land under a lease, it has no power to relinquish a part of the premises and apportion the rent without the consent of the landlord. And when its agent gives notice to tho landlord that after that date the government will cease to occupy a part of the tract specially designated, and it does surrender the same, though without acceptance hy the landlord, it continues liable for the entire rent so long as it occupies any part.

IV. Where the government enters under and as assignee of a lease, wherein the lessee covenants to pay, in addition to the rent, “ *any damage that may he done to other property hy reason of the oceupancy of the said land as a military camp,”*the covenant hinds tho government, and extends to injuries done by soldiers to the fences and crops of adjoining lands.

*Mr. Samuel T. Harris and, Mr. William Johnston*for the claimant:

Under agreement Camp Dennison was surveyed and its limits marked out, including- 250.51 acres of land belonging to John Kugler.

This land was taken possession of by tbe State of Ohio, and *408witbiu a month thereafter turned over to the United States, and occupied by the United States as a military camp till the first day of June, 1866, when possession was abandoned to the proprietor.

On the 25th day of February, 1864, five days before the end of the third year, the following notice in writing was served on John Kugler:

“Assistant Quartermaster’s Oeeice,

“ *Gamp*Dennison, Ohio, *February*25,1864.

“-John Kugler, Esq.

“ Dear Sir : A new survey of Camp Dennison has been made by military authority, and the lines thus established will restore to the several owners a portion of the lands originally leased by them to the State of Ohio. As you are one of the originallessors, it is proper to inform you that all lots and parts of lots of land lying outside of the new line made by the survey above referred to, will not,- after the first day of March next, be used by the government of the United States for a military camp, but will then berestored to the said lessors for their own use.

“ You are invited to call at this office and examine the survey and plat,'that you may have the line now made distinctly pointed out.

“ Yery respectfully, your obedient servant,

“RALPH PLUMB,

“ *Ga/ptain and A. Q.*If.”

On receiving this notice John Kugler declined accepting a part, unless the whole were surrendered; and the part left out by the new survey remained unoccupied until possession of the whole was given.

When possession was abandoned by the government, the premises were’found in the following condition:

Two acres were occupied as a burying ground for deceased soldiers.

Three acres were covered, in places two feet'deep, with imperishable rubbish.

Five acres were broken up by deep gravel pits, ditches, washes, privies, and the like, so as to be useless for agricultural purposes.

Five acres were covered by roads of broken rook and gravel, on an average twelve inches deep, and firmly packed down.

*409The residue of the cultivable land was cut up by military roads into small patches, so as to make it unplowable.

In the meanwhile, large quantities of grain growing in the adjoining fields were trodden down and destroyed by squads of soldiers crossing and recrossing for a short cut to Millford, or the bathing place in the Miami river/

The average rent per acre agreed on by the parties was $12 a year. All above that was intended as a compensation for crops growing in the ground and for labor in preparing the ground for crops. The year wa§ to end on the 1st day of March, 1862 — the 1st of March, as it ayouM appear, being the beginning of the farming year in this corn-growing valley.

At the end of the first year neither party gave notice to the other to terminate the occupancy; and so it became a tenancy from year to year at $12 the acre, for the whole tract surveyed for and occupied by the camp.

The contract was for *"*so much land as might be required by the State of Ohio or the United States.”

At the time the contract iras signed, there was no means of telling how many acres the camp would include.

The State made her election and closed the contract against all future elections when she surveyed the ground and fixed the limits of the camp.

We claim to the 1st day of March, 1867, bringing the rent due and unpaid up to $15,030.

It will be said that the government surrendered these premises to the landlord on the 1st "day of June, 1866, and that no rents can be claimed after that date. In point of fact the government abandoned the property on the 1st'of June, 1866; bnt having entered on a new year, could not make a surrender binding on the other party, so as to avoid the payment of the full year’s rent. The rule of lav is well settled, that a tenant from year to year, who holds over into a new year, is bound for a year’s rent. (Taylor’s Landlord and Tenant, § 524; *Harding*v. Orethom, 1 Bsj)., 57.)

I come now to the question of damages,And as to this, the contract at first sight seems obscure.

It was written in haste, and contained only a few leading stipulations. The law of a landlord and tenant must supply the rest; and if there is any one principle in the law better settled than another, it is this, that at the close of the term the *410tenant must leave tbe premises in as good condition as be found them, ordinary wear and tear excepted.

The contract, brief as it was, and somewhat obscure, provided for both classes of damages, and the obscure sentence— “ and in addition, any damage that may be done to other property by reason of the occupancy of the said land as a military camp,” in the light of all the surroundings, means simply this: All damages immediately consequent on this encampment, inside and outside, which cannot now be foreseen or liquidated. Let us inquire what these damages are.

Eent from the 1st of March, 1862, to the 1st of March, 1867, five years -.. $15,030 00

Cost of taking up and removing roads. 1,125 00

Cost of filling pits and grading surface. 781 25

Cost of clearing off three acres of rubbish. 278 88

Land taken for graveyard. 394 44

Damage done to crops in adjoining fields. 1,250 00

Total. 18,859 57

*Mr. T. S. Talbot*(with whom was the *Assistant Attorney General)*for the defendants:

The claimant’s intestate, John .Kugler, by lease of April 27, 1861, rented, “for the purpose of a military camp, so much of his land as may be required by the State of Ohio, or the United States,” to which lease the United States subsequently became sole party as lessee. The rent agreed upon was for a year, which was to terminate March 1,1862.

At first, 250.5T acres were included within the camp thus provided for, and one year’s rent therefor was paid by the United States, according to the agreement.

The claim is, first, for rent of the same land from March 1, 1862, to March 1, 1867, under the above agreement.

To this portion of the claim the defence is, that a portion of the above land was surrendered to the control and-use of the claimant in March, 1862; another portion, along with that before surrendered, in February, 1864, and the whole in June, 1866.

The claimant denies that any surrender was made in March, 1862. Further, he asserts that the lease- being an annual lease, a surrender made after the commencement of the second year *411would not deprive Mm of a right to the rent for the whole of that year.

As to the second surrender, (and also as to the first,) he denies the right of the lessee to surrender a part without surrendering the whole.

As to the third and last surrender, he denies the right to surrender save at the termination of the year.

This brief replies, that the reservation of annual rent may be, and in this case is, so controlled by other portions of the lease as not to make the lease annual in its term. These controlling words are, “for the purpose of a military camp, so much of their land as may be required * * * by the United States.”

In thus securing the right to take so much land as should be wanted for a specific purpose, the government bound itself to pay for it so long as it should be wanted for that purpose, and no longer — paying therefor at the rate of a certain annual rent.

The reduction in extent being authorized by the original lease, can furnish no ground for an increase of rent for the land still retained. A fixed price per acre and no more was to be paid for the land required for a camp, and for no more.

The next question is of damages. One portion of this claim is for damage done to the rented land. The premises, it is said, were not restored in as good condition as they were taken; and, accordingly, by the common law, the claimant is, to that extent, entitled to recover damages.

This brief replies, that damages having been specially provided tor in this contract, the provisions of the common law touching that subject are here excluded from operation. These special provisions are well recited in the brief submitted for the claimant. They express all the liability of the government for any damage whatever done to the rented land. Beyond the damages thus provided for, the government made itself liable only for damage to “ other property” than the rented land. So the agreement concludes: “The State of Ohio agrees to pay the above juices * * * for land so used and occupied, * * * and in addition, any damage that may be done to other projierty,” thus clearly setting “ other property” in antithesis to “land so used and occupied.”

This proposition is in answer to the claim for damages caused *412to tbe rented land, by tbe military roads, tbe excavations, and rubbish.

Furthermore, tbe purpose for which tbe land was to be used was stated in tbe agreement to lease, viz: tbe purpose of a military camp. This is equivalent to an express license to make such changes in tbe condition of tbe land as that purpose would require; as a lease of coal lands permits tbe mining of coal. Taylor L. *&*T., § 345-6; *Crouch*v. *Fury ear,*(1 Band Ii., 258;) *Saunders’s Cases,*(5 B., 12.)

As for damage done by tbe use of a portion of tbe rented land for a cemetery, it is further to be noted that tbe petition claims tbe value of tbe land as though sold in fee simple, but makes no proffer of title to tbe United States; and though this court might direct such value to be paid to tbe claimant, it could not exercise any authority whatever over tbe land, for which it should order payment to be made.

Casey, Ch. J.,

delivered tbe opinion of tbe court:

1st. On tbe 27th April, 1861, tbe claimant’s testator was tbe owner of a large and valuable farm in tbe county of Hamilton, and State of Ohio, containing about four hundred and fifty acres. On that day be entered into tbe following contract with George W. Holmes, who was tbe duly authorized agent of, and acting on behalf of, tbe State of Ohio:

> “Memorandum of agreement between William Dennison, governor of Ohio, acting by George W. Holmes, and tbe -undersigned, owners of property on tbe Little Miami railroad, near Miamisville, in the county of Hamilton and State aforesaid, witnesseth:

> “ First. That tbe undersigned rent for tbe purpose of military camp, so much of their land as ■ may be required by tbe State of Ohio, or tbe United States, upon tbe following terms : For lands without crops, twelve dollars per acre. For land in wheat, where there is a prospect of a good crop, twenty dollars per acre. For land plowed, but not sowed or planted, fourteen dollars per acre. For land planted in corn, fifteen dollars and fifty cents per acre. For land sowed in oats, sixteen dollars and twenty-five cents per acre. For land planted in potatoes, twenty dollars per acre. For land sowed in clover and meadows, seventeen dollars per acre. For timber land, twelve dol*413lars per acre. The fences are to be restored; payment is to be made at the rate of sixty cents per rod for rail fence more than two years old; and for fence less than two years old, at the rate of seventy-live cents per rod.

> “ Second. The State of Ohio agrees to pay the above prices per acre on or before the first day of «rune next, for the land so used and occupied, until the first day of March, 1862; and in addition any damage that may be done to other property by reason of the occupancy of the said land as a military camp.”

2d. "Under this lease the State of Ohio entered into possession of the two hundred and fifty acres of land mentioned in said agreement, and occupied it for about the space of one month, as a State military camp and rendezvous. The premises, camp, and all its appurtenances were then turned over by the State of Ohio, and with the consent of the claimant, into the possession and use óf the United States. And the rent for the first year for the two hundred and fifty acres, as stipulated in the agreement between the claimant and the State of Ohio, was paid by the officers and agents of the United States to Mr. Kugler. And we find that the United States entered into the possession and occupied the premises under the lease, and that it was not appropriated by right of eminent domain.

3d. On the 30th day of April, 1864, a duly authorized quartermaster on duty at this camp gave notice to the claimant that the United States, after that date, would cease to hold and occupy one hundred and thirty-two and fifty-two one hundreths acres of the demised premises, which ho specially designated; and thereupon he offered to surrender the same to the claimant. The claimant did not accept or agree to this surrender. The part offered to be surrendered was in the main broken, barren, and timbered lands unfit for cultivation. The part of the farm retained was rich arable lands, and contained the houses, barns, and other necessary and accessary farm buildings. This latter was held and occupied until the first day of Juno, 1866, „ when it was finally vacated and turned over to the claimant.

4th. One acre of ground was appropriated as a burying ground, which we value at the sum of two hundred dollars.

6th. The damage to the land occupied as a camp by roads, drains, and sinks, we estimate at one thousand dollars.

6th. The damage to the fences and crops of the claimant upon *414bis adjacent lands we find to amount to tlie sum of twelve hundred and fifty dollars.

There can be no doubt that the United States entered into and maintained the possession of the claimant’s land by virtue of the lease, and which itself provided for the occupancy by the United States. They received the possession from the State of Ohio, in the same manner that it held it under the claimant. The claimant assented to the transfer. Both the United States and the claimant ratified the occupancy of the former, the one by paying, and the other by receiving the rent stipulated for in the agreement. This without any formal assignment was evidence, until rebutted by countervailing testimony, that the United States were in iwssession of the same estate which the State of Ohio held, and upon the same terms, conditions, and limitations. Taylor’s Land. and Tenant, p. 312; *Acker*v. *Wetherill,*(4 Hill, 112;) *Braythwaite*v. *Hitchcock,*(10 M. *& W.,*494.)

The assignee, by accepting the possession of the land, subjects himself to all covenants running with the land, and all stipulations in the lease. Taylor, 317; *Van Rensalaer*v. *Bonestell,*(24 Barb., 365;) *Blake*v. Sanderson, (1 Gray, 332.) And each successive occupant of the premises is liable for the rent by reason of his possession. Possession, in such cases, is the foundation and boundary of the liability. Taylor, 323; *Carter*v. *Hammett,*(18 Barb. Rep., 608.)

ADd where the hiring is by the year, and the landlord suffers the tenant to remain, and the tenant continues to occupy the premises, it constitutes a tenancy from year to year upon the terms of the lease, and subject to all its covenants. Taylor, p. 39; *Salisbury*v. *Hall,*(12 Pick, 416;) *Lamarue*v. *Dougherty,*(35 Penna., 45; 8 D. & R., 55;) *Desford*v. *Walbridge,*(15 N. Y., 374.) These authorities will sufficiently show that under the facts, as we find them in this case, that whatever rights were conferred or obligations created upon the one side or the other by the lease continued between the claimant and the United States. In other words, the lease remained, the United States entering into the possession instead of the State of Ohio, assuming all the obligations of the latter under the lease, and entitled to all the privileges and rights it conferred. It is therefore by the lease, and by the time, extent, and manner of oceu-*415pancy that the respective demands and liabilities of the parties are to be measured and determined.

Where a tenant surrenders a part of the premises, the rent will be apportioned and payable only in respect of the part retained. *Stevenson*v. *Lombard,*(2 East. Rep., 580,) Stor. Eq. Jur., §§ 475 to 485; Taylor, §§ 279, 443. But this principle is predicated of a case where either the tenant has a right to surrender a part of the premises, or where the landlord assents to the surrender either expressly or impliedly by receiving the premises or occupying them otherwise.

In this case the lease was for the entire tract of two hundred and fifty acres. There was nothing in it which authorized the relinquishment of any part without surrendering the entire premises. The evidence instead of shoving that KLugler agreed to accept the surrender he expressly refused to do so. In view of these facts we cannot see how the payment of the entire rent, up till the first of June, 1866, can be successfully resisted.

The majority of the court are of opinion that the claimant should recover, as follows:

Bent of 250 acres, 4 years and 3 months, at $12 per acre...$12,750

One arce of ground for cemetery. 200

For damage to lands occupied by drains, roads, sinks, &c. 1,000

Damage to crops on claimant’s adjacent lands, 4 years - 1,250

15,200

And in accordance with these views we direct a judgment in favor of claimant for the sum of fifteen thousand two hundred dollars, ($15,200.)

*Order suspending judgment.*

And now, to wit, May 26,1869, it is further considered and adjudged by the court here, that no certificate for the payment of the foregoing judgment shall be issued until the claimant shall file a deed, or other sufficient conveyance to the United States, for such part of the lands formerly occupied as “ Camp Dennison,” in the State of Ohio, as were then used as a cemetery or burying ground by the United States. The said deed or conveyance to give to the United States the right to hold, *416use, and occupy tlie same, as a cemetery, for sucb time and in such, manner as tlie said United States through their legally constituted authorities shall order and direct. The said United States also to have free ingress and egress to and from said cemetery, over any intervening lands belonging to the said John Kugler, his hems or assigns. And the said deed or conveyance shall be accompanied with a draft or diagram describing the said cemetery by courses and distances and by metes and bounds, and showing the road, entrance, or approach to the same. And said diagram and deed shall be accompanied by the certificate of a commissioner of this court, that he has personally examined and inspected the premises, and that they are laid off and set apart according to the terms of this decree, and are correctly described in said diagram and deed. All of which being approved by this court, if in session, or by a judge thereof at chambers, in vacation, shall be filed of record in the cause, and thereupon the judgment heretofore directed shall become final. And until this decree shall have been complied with it is suspended.

BT THE COURT.

Peck, J: I do not concur in the foregoing opinion, because I think the damages too large.

Nott, J.,

dissenting:

I think the government differs from an ordinary tenant in this : That it may surrender the premises at the expiration of the term and yet continue to hold a part under its right of eminent domain, at the fair value thereof. Such a construction should be given to the acts of its agents in this case. It should be held liable for the full rent to the end of the current year when the notice was given, and the court should then find the fair rental of the part subsequently occupied. Such a rule would preserve all the rights of the landlord and save intact the government’s great and necessary and inalienable right of eminent domain.