Citation Numbers： 25 N.E.2d 362, 63 Ohio App. 101, 16 Ohio Op. 379, 1939 Ohio App. LEXIS 419
Judges： Carpenter, Overmyer, Lloyd
Filed Date： 2/27/1939
Status： Precedential
Modified Date： 11/12/2024
In my opinion, the plaintiff has not sustained the burden resting upon her to show her right to retain the building referred to as part of her premises. She, through her agent, *Page 104 prepared the written lease, and gave the tenant "the privilege" to erect this rather temporary structure or "lean-to," without a word in the lease restricting his right to remove it at the end of the tenancy or concerning the title to it. This must be construed against her. The building has many of the elements of a trade fixture which, in the absence of a definite agreement to the contrary, is removable. It is not denied that the tenant spent $2,000 in preparing and grading the lot and erecting the building, and plaintiff's agent frankly says they ordered defendant out because they had a tenant who would pay higher rent. Defendant testifies he can and intended to use the material resulting from wrecking the building in the construction of a lot and building and drive at his new location. In my opinion the law and the equities of the case are with the defendant.
"* * * Generally it is considered that where the landowner consents to the placing of a building on his land by another without an express agreement as to whether it shall become a part of the realty or remain personalty, an agreement will be implied that it is to continue personal property. In such a case it is immaterial what is the purpose, size, material, or mode of construction of the building * * *." 11 Ruling Case Law, 1083, Section 26. See also Merchants' National Bank v. Stanton,