Steiger v. Prather

Conger, P. J. In the year 1881 appellant was the owner of certain property near Springfield, known as the Hominy Mill property, consisting of twenty acres of land, mill and machinery for carrying on the milling business. The water for the use of the boilers was obtained from wells on the premises, and, as a reserve, there was a two-inch iron pipe laid in the ground extending some three quarters of a mile to the city water works. In that year appellee, Prather, and others, leased these premises, took possession and continued to occupy them until the 16th of April, 1882, when the mill was destroyed by fire. During the time they were in possession appellee took up this iron pipe and replaced it with new. Some five months after the mills were burned appellee, Prather, took up the pipe he had placed in the ground and sold it, and this suit was instituted to recover the value of the pipe and for trespass upon the premises of appellant. We find by referring to the record that the lease was introduced in evidence and read to the jury, but no part of such lease appears in the record except one clause, as follows: ct And the party of the second part further covenants with the party of first part that, at the time in the lease mentioned, he will yield the premises up to the party of the first part in as good condition as when the same were entered upon by the said party of the second part, loss by fire, inevitable accident or ordinary wear and tear excepted. And it is further agreed by the parties of the first and second part that the said rent shall be paid quarterly. And it is further agreed that the party of the second part shall have the right to remove all improvements by him made upon the demised premises.” Dor aught we know there may have been other provisions in the lease fully sustaining the finding of the jury. If the whole lease was before us we should know whether there wore or not provisions in it allowing the removal of improvements after the lease was'canceled; but not having it all, we must presume it did authorize the appellee to make the removal which the jury have found was lawful. Roger v. Hall, 3 Seam. 5; McLaughlin v. Walsh, 3 Scam. 185. The judgment of the Circuit Court will be affirmed. Judgment affirmed.