Allen v. Island Creek Coal Co. , 1 Ohio Law. Abs. 552 ( 1923 )

BUCHWALTER, J.

Epitomized Opinion

This was an action for rent. In 1915 the defendant’s assignor entered into a lease with plaintiff for the letting of certain lands located along the banks of the Ohio River. The land was to be used for the storage of coal and the loading and unloading of the same. In -1917 this lease was changed from a lease for years to a month to month tenancy, but all of the other provisions of said lease were to remain as in the original. In December of the same year the defendant took over the lease from the then lesse and continued in possession of said premises until Jan. 1, 1920. In December of 1919 the plaintiff notified the defendant that the rent would be raised to $100 a month and as the (defendant did not wish to continue said lease, he attempted to move out by Jan. 1, 1920. The only question in the cáse, was whether the defendant surrendered the property from the above date. Plaintiff claimed that the defendant allowed its barges to remain in front of her real estate, that it fastened the same to plaintiff’s property, and closed an old roadway on defendant’s property, over which plaintiff claimed easement. On the other hand, the defendant offered evidence that no boats had remained in front of plaintiff’s property except in order to clear the drift or in making up a string of barges. The trial resulted in a judgment for the defendant whereupon plaintiff prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1. It cannot be said as a matter'of law that the judgment was manifestly against the weight _ of evidence, as the facts did not warrant a finding that there was a holding over of the property after the expiration of the term.