Ohio Val. Advertising Corp. v. Linzell

Decision Date06 November 1957
Citation107 Ohio App. 351,152 N.E.2d 380
Parties, 78 Ohio Law Abs. 276, 8 O.O.2d 270 OHIO VALLEY ADVERTISING CORPORATION, Plaintiff-Appellant, v. S. O. LINZELL, Director of the Department of Highways of the State of Ohio, Columbus, Ohio, Defendant-Appellee.
CourtOhio Court of Appeals

Eagleson & Eagleson, Columbus, Kinder, Kinder & Kinder, Martins Ferry, for plaintiff-appellant.

William Saxbe, Atty. Gen., Hugh E. Kirkwood, Jr., and Dwight E. Walter, Asst. Attys. Gen., for defendant-appellee.

MILLER, Judge.

This is a law appeal from a judgment of the Common Pleas Court sustaining a demurrer to the plaintiff's petition and the plaintiff not desiring to plead further final judgment was rendered in favor of the defendant and the petition was ordered dismissed.

The petition consists of seven counts all of which recite that the State of Ohio through its acting Director of Highways, George Thormyer, appropriated certain perpetual easements and rights of way for road purposes and railroad purposes over lands upon which plaintiff had erected advertising signs in pursuance of certain agreements with the owners of the land. It was alleged that the agreements were made for specified terms and subject to certain renewal privileges on the part of the plaintiff; that they granted to plaintiff and its assigns the right to maintain advertising on any part of the premises described, for the specified sums; that such premises were leased for such terms and that the plaintiff was 'given no estate or interest in and no control or right of possession of the premises except the license or permission above mentioned (of changing or removing the billboards) and that in the event of a tax levy or any adverse legislation on the structures, the lease could be cancelled'.

The petition further alleged that the plaintiff entered upon the said premises and erected certain structures and paid the sums of money which were to be paid annually pursuant to the provisions of the written instruments; that the plaintiff was not made a party to the appropriation proceedings although the defendant well knew of the existence of the plaintiff's claim. Plaintiff is contending that it had a certain interest in and upon the premises under the writing alluded to hereinbefore for which compensation is sought.

The first question presented is the nature of the agreement under which the signboards were placed upon the properties by the plaintiff. In other words, what do the agreements amount to? Were they leases or mere licenses? Counsel for the plaintiff admit in their brief that the agreements were neither witnessed nor acknowledged, although we consider this fact of no importance in solving our questions. The real nature of an instrument is not determined by what it is designated within itself but rather its exact nature is decided by a full consideration of all of its terms. In Pitts v. Cincinnati Housing Authority, 160 Ohio St. 129, 113 N.E.2d 869, the court clearly points out the distinction between the terms 'lease' and 'license'. At page 137 of the 160 Ohio St. at page 874 of 113 N.E.2d, Judge Taft quotes with approval from American Jurisprudence, to wit:

'In 32 American Jurisprudence, 27, Section 2, it is said:

"The relation of landlord and tenant is created by contract, either express or implied, by the terms of which one person designated 'tenant' enters into possession of the land under another person known as 'landlord'. A tenant, including a tenant for years, is an occupant who has not only an interest in land, but also some estate, be it ever so little, such as the estate of a tenant at will. He is 'one who occupies the premises of another in subordination to that other's title and with his assent express or implied' * * *. There is authority to the effect that presence or absence of possession of the premises is a distinguishing factor between the relationship of landlord and tenant and that of lessor and lessee--that is, the one relation is referable only to the contract, and the other to both the contract and the change in possession of the premises. Thus, it has been said that the lessee is not a tenant until he enters into possession. Usually, however, the word 'landlord' as employed in legal parlance, as well as in ordinary usage, means the same as 'lessor', and the word 'tenant' the same as 'lessee'."

'Here, defendant gave plaintiff's parents possession of the premises under a written contract providing therefor. Obviously, plaintiff's parents were occupying the premises in subordination to the title of defendant thereto and with defendant's express assent. Their relationship was referable not only to an express contract but to the change in possession of the premises.

'In 32 American Jurisprudence, 31, Section 5, it is said:

"A license to do an act upon land involves the exclusive occupation of the land by the licensee, so far as is necessary to do the act, and no further, whereas a lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms.

"Whether an instrument is a license or a lease depends generally on the manifest intent of the parties gleaned from a consideration of its entire contents. Even though a contract purports to be a 'license', if it is strictly within the definition of a lease, it will be construed as such, and not as a license."

In the case of Di Renzo v. Cavalier, 165 Ohio St. 386, 135 N.E.2d 394, the court held that a license to do an act upon land involves the exclusive occupation of the land by the licensee so far...

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8 cases
  • Morris v. Investment Life Ins. Co.
    • United States
    • Ohio Supreme Court
    • June 30, 1971
    ...operation. It is the provisions of the contract, construed together, that are of main importance. Ohio Valley Advertising Corp. v. Linzell (1957), 107 Ohio App. 351, 152 N.E.2d 380, 382; Farris v. Glen Alden Corp. (1958), 393 Pa. 427, 143 A.2d 25; Stephenson Finance Co. v. South Carolina Ta......
  • Consol. Land Co. v. Rockies Express Pipeline Llc.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 29, 2010
    ...action: to allow the land to be put to a public purpose and to compensate the landowner for the use. Ohio Valley Adver. Corp. v. Linzell, 107 Ohio App. 351, 152 N.E.2d 380, 384 (1957) (“A land appropriation proceeding is .... an appropriation of physical property in which the value of the v......
  • BeWigged by Suzzi, Inc. v. Atlantic Dept. Stores, Inc.
    • United States
    • Ohio Court of Appeals
    • July 1, 1976
    ...135 N.E.2d 394. Accord, Pitts v. Housing Authority (1953), 160 Ohio St. 129, Syl. 2, 113 N.E.2d 869; Ohio Valley Advertising Corp. v. Linzell (1957), 107 Ohio App. 351, 152 N.E.2d 380. A further distinguishing feature is the difference in the expected duration of a tenancy as opposed to a l......
  • Board of Park Com'rs of Columbus v. DeBolt, 84-507
    • United States
    • Ohio Supreme Court
    • December 31, 1984
    ...is demonstrated by the cases of Sowers v. Schaeffer (1951), 155 Ohio St. 454, 99 N.E.2d 313 , and Ohio Valley Advertising Corp. v. Linzell (1957), 107 Ohio App. 351, 152 N.E.2d 380. Appellant also cites Sowers, supra, and Preston v. Stover Leslie Flying Service, Inc. (1963), 174 Ohio St. 44......
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