
    RESTRICTIONS IN LEASE.
    Circuit Court of Hamilton County.
    The Apollo Cigar Co. v. Robert J. O’Brien et al.
    Decided, February 15, 1908.
    
      Covenants of Restriction — Construction of, tohere of Doubtful Meaning —Breach Alleged as to Cigar Privilege.
    
    The rule that, where there is doubt as to the meaning of a covenant of restriction it must be resolved adversely to the restriction, forbids a finding that a breach has occurred in the covenant of the lease involved in this case as to cigar privileges in other parts of the same building. .
    
      Frank J. Forger and Fenis F. Cash, for the demurrer.
    
      Karl H.'Cadwell, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   .It appears from the petition that the plaintiff leased from the defendant, O’Brien, “the first floor and basement of the four-story brick building known as No. 11 East Sixth street, and forming a part of the Hotel Savoy building, from Nos. 5 to 15 inclusive, East Sixth street, Cincinnati, Ohio,” and that in the lease he agreed for himself and his assigns—

‘ ‘ That he will not rent any of the store rooms connected with the Plotel Savoy building, numbered 5 to 15 inclusive, East Sixth street, for a cigar and tobacco business, during the occupancy of this plaintiff herein, excepting that the defendant, Robert J. O’Brien, expressly reserved the right to sell cigars, tobacco, smoker’s articles, magazines and periodicals at a stand not. to exceed eight feet in length in the hotel office, at the bar connected with the said hotel, and from a stand in a restaurant, if one should be established and a cigar stand desired, which latter stand was also not to exceed eight feet in length, the said stands to be located at the hotel office desk, and the restaurant cashier’s desk.”

The first part of the above allegation sets up a restriction of the right of the lessor to rent any of -the other store rooms for a cigar and tobacco business. It does not in terms nor by implication refer to or apply to the hotel office or lobby. The rest of the allegation states an apparent exception to or reservation in the restrictive clause, but can have no application as such unless the lessor or his assigns should conclude to establish a restaurant in one of the aforesaid store rooms. In other words, the lessor had conveyed no right pertaining to the hotel office nor restricted the use thereof in any way that would require or permit an'exception or reservation. It may be said, however, that from the designation of a specific location and size of the cigar stand in the hotel office, an intention to so restrict it may be inferred; but it seems well settled in cases of this kind all doubts must be resolved in favor of natural rights and against restrictions thereon. If there is doubt as to the meaning of the covenant, it must be resolved adversely to the restriction, but in determining its meaning, that must be found from the language used, which is not to be extended or enlarged by implication. The Postal Tel. Co. v. Western Union Tel. Co., 155 Ill., 335.

The erection and maintenance in the hotel lobby of a cigar stand sixteen feet .in length by the Hotel Savoy Co., one of the lessor’s assigns, is not therefore a breach of the covenant in the lease, and the demurrer to the petition will be sustained.  