The daily press. (Cincinnati [Ohio) 1859-1859, 1859-04-07
L AW r E EPOR t
SUPERIOR COURT.


RIeHTs OF TENANTS AS TO THE REMOVAL OF In.
PROvEMENTs OF REAL EsTATE.-J. p. Atwater, execu-
question: involving the rights of tenants or iessees to
remove structure erected on real estate on the
this case: The application was for an Injunction to
restrain the defendants from tearing down house on
Fifth-tbe questions arising being presented on a
demurrer to the plaintiffs petition, and the facts
lows; Ethan Stone devised his dwelling house and
an adjoining lot to two ladies hs niece and another
during their Joint lives-the executor to pay taxes
out of the other esaeand the death of either Of
them, he was to sell all the property and divide it
dies leased twenty feet of the vacant lot TO party
named Foot for their life estate, resorving an annual
Improvement he might place the property. He
took possession and erected two-story brick house
aixed thereto. Afterwerd be sold his interest to
Caystone for S2,5CO. Within a year or so from
ned by the death of one Of the evisees In less than
month thereafter, Claystone threatened to remove
chase. The plaintif las executor) claimed TO re-
strain him; ayerrng that the removal Of the building
did not appear in the petition whether the defendant
had given up possession of the premises not, nor
Judge Spencer held that the right of the tenant to
remove did not depend on the reservation made in
estate than the dcvsees had and such clause there
fore was Of no further concern than Il evidenced
building. The case should, then be considered ire
spectye ANY contract for removal The question Of
winch the structure was nut up-whether with a view
TO ITS permanent appropriation to the of the soil
or whether as temporary appropriation for the ten
ants own use, and with design to its removal. In
determining these questions various circumstances
were to be considered the character of the build
ing, its mode Of annexation, and the uses to which
applied. These, however, furnished only evidence of
the intent. In doubtful cases the inference was in
down general rule, that the right of removal OK
isted-whether in regard to structures made for the
purpose OF trade or otherwise, the distinction in such
cases sought to be applied at common law not being
applicable in this country.
Whatever the intention might be- however on tho
part OF the tenant it could not be regarded unless the
removal could be made without injury to the estate:
IN other words, the rights of tho landlord must be
respected and II the improvements could not be re-
moved without injury to the premises the right did
not exist. ''e ~
In this it averred that irreparable damaoo
would be occasoned by the removal, and therefore
mat IL must he presumed that the building was NOT
erected with q view to removal.
As to the right to remove after the term exnired
that question depended on the fact of an abandon.
ment-that is where tenant left the premises with
out removing his improvements; and ii affixed to the
soil t IS presumed in law that he yielded them to the
such presumption did not, however, exist especially
III cases OF uncertain TERMS long as the tenant re-
manned in possession. Here it did not appear whether
possessonh been given up not and the defendant
would not be presumed to he u trespasser,
As to the claim on the part of the plaintiff, that
burdens were imposed on the estate of Ethan Stone
IN the shape OF increased taxes, in consequence of
ms erection by the tenant it did not appear in fact
tlat such burdens wore increased, or who paid the
taxes; and even il it did so appear, that would be
merely matter of evidence. -
On the whole case, the Court thought it proper TO
override the demurrer, and should continue the in.
Junction for the present.
A. Taft for the petition Messrs. Lowe and Polloc,
on the other side, SN