
    No. 230
    AMSTER v. FREEDLANDER et
    No. 19550.
    Supreme Court
    On motion to certify.
    Dock. Jan. 9, 1926;
    4 Abs. 56.
    707. LEASES — If a right in accordance with an indefinite provision in lease is once exercised by the lessee in a certain manner, may a more extensive right be invoked later which would not conflict with such uncertain provision, or is the exercise of the right in the first instance a conclusive interpretation of the intention of the parties concerning the provision granting such privilege?
    Attorneys — A. D. Metz, Wooster, N. M. Greenburger, and Musser, Kimber & Huffman, Akron, for Amster; Weygandt & Ross, Wooster for Freelander.
   Nick Amster, the owner of a large business block in’ Wooster, leased a portion of said block to Herman Freelander and Company for a period of 15 years with an optional period of 5 years additional. A provision of the lease stipulated as follows:

“It is further agreed between said parties that said second party (Lessee) is granted the right during said lease periods to connect said Memorial Block with the property of said second party to the west by bridge over the alley at second party’s expense, and to remove said bridge and restore said Memorial Block at his expense at the termination of said lease or leases as it originally was.” .

The size, location, nature and construction of the bridge are not designated.

A bridge was constructed and used for two years, when Freelander began the construction of a new and separate bridge across the alley, which would by its nature necessarily result in competition in business between the parties which was prohibited by a provision of the lease.

Amster sought a restraining order in the Wayne Common Pleas which was refused and such refusal was affirmed in the Appeals.

Amster contends that:

1. In as much as the lease was silent as to the location, size and construction of the bridge and the lessees having constructed one bridge for one purpose it would be contrary to the lease to construct a new bridge for a different purpose.

2. That the parties, knowing their rights, placed an interpretation upon such privilege by the construction and use of one bridge for a period of time and therefore, Freelander will, as a matter of law, be estopped from asserting and different right or claim.  