
    The J. H. Bellows Co. v. Covell et al.
    (Decided October 24, 1927.)
    
      Messrs. True, Crawford <& True, for plaintiff.
    
      Messrs. Graves & Guff, for defendants.
   Lloyd, J.

On August 12, 1922, the defendants Charles and Eva Covell leased to plaintiff about 45 acres of land in Catawba Island township, in Ottawa county, for a term of 25 years, with the privilege of a 10-year extension thereof, and since said date-plaintiff has been in possession of the premises so leased, which are now the property of the defendants Earl and Glenna Covell. The land adjoining these leased premises, and lying west thereof, extending to Lake Erie, is owned by plaintiff. Located thereon, along the edge of the lake, is a gravel bar. On the westerly end of the leased premises is a pond covering about 14 acres, 11% acres of which are on the leased premises and 2% acres thereof on the adjoining land owned by plaintiff. This pond deepens from the shore line thereof to about 18 inches in depth at the center. The sand bar separates this pond from the lake. The edge of the pond is marshy and the water therein stagnant, varying in depth with the season of the year and with the rise and fall of the lake, but is never more than about 18 inches in depth. The bottom of the pond is muck and the ordinary marsh and aquatic vegetation is found growing therein.

The lease in question recites:

“Said premises are to be generally developed as a golf course” and that lessors, “their heirs and assigns shall have a free membership for themselves and their immediate family in such golf club as may hereafter be organized for the purpose of using and developing said premises, together with other adjacent lands; such membership, however, to be subject to the same rules and regulations as other members of said golf club. Such free membership does not include free locker rent or any service for which a charge is made to regular members in addition to regular dues.”

Other than these recitals the lease makes no reference to the purposes for which the leased premises are to be used, and contains no restrictive covenants or conditions as to the use thereof, other than the following clause therein: •

“Upon the termination of this lease the said the J. H. Bellows Company, their successors or assigns, shall deliver up the premises herein described in as good condition as they are now in, reasonable wear and tear for the uses herein specified excepted.”

The plaintiff lessee is proposing to reduce this pond from its present size to what may be called an artificial lake, covering perhaps 7 oT 8 acres, with a uniform depth of, 6 or 7 feet, and to cut a channel through the sand bar sufficiently wide and deep to permit pleasure boats to pass from Lake Erie into the lake thus made. It is planned to build a clubhouse on adjoining property of plaintiff, and the present golf course laid out on the leased premises is to be extended and enlarged; one of the contentions made being that the pond in its present condition considerably lessens the adaptability of the leased premises for their intended purpose. The plaintiff in its petition alleges that the defendants are threatening to enter upon the leased premises to obstruct, interfere with, and prevent, the proposed improvement now in process of construction, and prays for an injunction to restrain them from so doing, and also asks for a decree quieting its title in and to the leased premises. The defendants claim that the lease did not contemplate, and does not authorize, the prospective and attempted changes in topography of the leased premises, and that the improvements, so-called by plaintiff, if consummated, constitute waste, and should be enjoined.

Obviously the question to be determined is whether, under the circumstances here involved, having in mind the character of the- premises leased and the purposes for which leased, the proposed changes therein constitute such waste as will be enjoined.

The law formerly regarded as waste anything that in any way changed the identity of the leased premises, and was most exacting in repressing such acts. It seems not to have mattered whether what was done was injurious or beneficial to the reversion; it being considered of the utmost importance that the condition of the premises should remain unchanged so that there might arise no confusion as to its identity. Such was the rule of the common law as transmitted to us from England, but it seems now to be settled that many things may be done by a tenant in this country that, if done in England, would be waste.

As said in Pynchon v. Stearns, 11 Metc. (52 Mass.), 304, 45 Am. Dec., 216:

“The. ancient doctrine of waste, if universally adopted in this country, would greatly impede the progress of improvement, without any compensating benefit. To be beneficial, therefore, the rules of law must be accommodated to the situation of the country, and the course of affairs here.”

The Supreme Court, in Crockett v. Crockett, 2 Ohio St., 181, many years ago decided that the strict doctrine of the common law in regard to waste has never obtained in Ohio, and generally the rule now is that an act, though perhaps technically waste, which in fact results in improving instead of doing injury to the inheritance, will not be enjoined. Waste of this character has been designated as meliorating or ameliorating waste. 27 Euling Case Law, 1013, 1046, Sections 3, 38; 2 Thompson on Real Property, Section 1578.

Discussing this subject, it is stated in 14 Harvard Law Review, p. 226:

“It is nowadays to the interest of the public that a tenant should be hampered as little as possible by restrictions which are vexatious to him without being of proportionate advantage to the reversion. Consequently it would seem that for actionable waste, substantial pecuniary damage to the reversion should he required and that the mere alteration of the demised premises which renders them unfit for cheir former use without decreasing their general value, is not enough. If the lessor considers their return in their former condition important, he can fully protect himself by covenants and conditions.”

In the instant case the lease provided that the leased premises, in conjunction with other property, was to be generally developed as a golf course, and this recital, as we view it, plainly indicates that such changes as became necessary to accomplish this purpose were within the contemplation of both lessors and lessee, and, by implication at least, whatever was reasonably required to so develop the property for this designated use was, by the terms of the lease¿ permissible. The plaintiff, it would seem, might fill and use so much of this pond as might he necessary, on which to build greens,. properly trapped, if the. golf course, as planned, so required. Or if it were deemed expedient to place two greens where the pond now is, or to use the same for a fairway, would not the plaintiff, by reason of the expressed purposes of the lease, have the right to fill or excavate so much of the pond as was needed therefor?

The community life on Catawba Island has very much changed in the last few years. Formerly it was entirely an agricultural and fruit-growing community, but now not a little of its lands has been platted into allotments and many fine summer homes have been built there. As a consequence the value of the property is yearly, and generally, increasing, and many more progressive changes will come before the expiration of the lease in question. Even if we were to conclude that the lease does not impliedly or expressly authorize plaintiff .to proceed as proposed, we are unable to see that by so doing any injury will result to the defendants. The land area will be increased for either agricultural or for allotment purposes, the latter possibly being the most probable, if we may vision the changes that 25 or 35 years will bring to this locality.

It was argued that there were tons and tons of muck in this pond which were exceedingly valuable commercially as a fertilizing product. If so, it would seem that in the many years heretofore, some of it, at least, would have been profitably disposed of. Nor are we able to conclude, in view of the character of the development in progress upon the island, that this property could be used either for profit or pleasure as a game preserve.

It is the decree of this court, therefore, that the cross-petition of the defendants be dismissed, and that plaintiff be permitted to proceed with its plan to decrease and deepen the pond in question, but that the .portion thereof located on the leased premises shall not cover more than 7 acres thereof, nor be more than 7 feet in depth, and that the material taken therefrom shall be deposited upon the leased premises. We do not purpose hereby to abrogate or change any of the terms or conditions of the lease, and accordingly limit the decree herein to the conclusions above expressed.

Decree accordingly.

Richards and Williams, JJ., concur.  