RENTAL OF PROPERTY BY GOVERNMENT.
I. It is a well settled general principle of law that when a tenant holds over after the expiration of his lease with the express or implied consent of the landlord, and without any new or different agreement as to rent, the terms of the old lease will apply. The Comptroller General invoked this well-known principle and denied plaintiffs' claim for increased rent. It is held that the principle does not apply in the instant case, since the landlord had given timely notice of an increase in rent, and plaintiffs are accordingly entitled to recover. Garrity, 92.
II. Where before the termination of the lease and in ac- cordance with the terms thereof, the tenant is notified by his landlord that if he holds over he will be re- quired to pay a higher rent than that required by the terms of the prior tenancy, the terms of the lease to that extent will not apply, and the tenant will be bound by the terms of the notification, unless he gives timely notice to the landlord of his refusal to be so bound. Moore v. Harter, 67 Ohio St. 250, 65 N. E. 883; Amsden v. Floyd, 60 Vt. 386, 15 Atl. 332; Williams v. Foss-Armstrong Hardware Co., 135 Wis. 280, 115 N. W. 803; 36 C. J. 1164. Id.
III. Upon the authorities cited, and more particularly from those authorities which hold that this result will fol- low even though the tenant objects to the new condi- tions, provided the hold-over is voluntary and not unavoidable, and the tenant does not explicitly refuse to be bound by the new terms; (Griffen v. Knisely, 75 Ill. 411; Commercial Cable Bldg. Co. v. McKenna, 168 N. Y. S. 13; Stees v. Bergmeier, 91 Minn. 513, 98 N. W. 648, 649) it is held to be well established that the land- lord and his tenant shall have arrived at an express new agreement, either written or oral, for continued occupancy beyond the expiration of the lease, in order to rebut the presumption that the holding over is upon the same terms as in the original agreement. See Griffen v. Knisely, 75 Ill. 411. Id.
IV. In the instant case, upon the evidence adduced, it is estab- lished that the plaintiffs not only notified the tenants (May 6, 1941) almost two months in advance of the expiration (June 30, 1941) of the written lease that continued possession of the premises after expiration would be at an increased rental, together with the cost to the defendant of certain facilities contrary to what had been provided for in the original lease, but the defendant did nothing either before or after the ex-
RENTAL OF PROPERTY BY GOVERNMENT-Continued
piration of the lease (at least until after its vacation of the premises on August 17, 1941) to indicate in the slightest degree that it had any objection to the new terms stipulated by the plaintiffs. Id.
V. Having remained in possession of the premises after termination of the original lease, as amended, without protest or disavowal of the new terms imposed by the lessor, defendant had shown an acceptance of those terms, except as to a slight suggested modification of verbiage; a contract thus existed between the parties whereby defendant was bound to pay not only the in- creased rental demanded but in addition whatever electric current and janitor service it might require in the use of the leased premises, and plaintiffs are en- titled to recover. Id.
VI. After the plaintiffs' notice of May 6, defendant was not entitled to hold the premises under the terms of the old lease; and in the absence of a complete agreement on terms of a new lease plaintiffs would be entitled, on a quantum meruit basis, to recover the reasonable rental value of the premises for the period they were actually occupied by the defendant after the termination date of the old lease, which rental value, on the evidence adduced, the court finds to be the amount determined for the period in question, in accordance with plain- tiffs' letter of May 6, 1941. Semmes and Barbour v. United States, 26 C. Cls. 119; Arnold Realty Co. v. William K. Toole Co., 46 R. I. 204, 125 Atl. 363. Id. REQUISITION OF PROPERTY BY GOVERNMENT.
I. Regulations, priorities and controls are vital in wartime and have been repeatedly approved. Bowles v. Willing- ham, 321 U. S. 503, 517; United States v. Delano Park Homes, 146 Fed. (2d) 473, 474. These wartime rules necessarily affect values, and these conditions, as well as the consequent limitation of the market, must be taken into consideration in arriving at just compensa- tion for goods requisitioned. Illinois Pure Aluminum Co., 1.
II. While the Government in wartime has the right to requisi- tion essential materials, nevertheless fine materials are not to be valued along with scrap materials for melting purposes, on a general basis, regardless of cost, finish, or value to the holder. On the other hand, a manufac- turer whose material has been requisitioned cannot justly claim a value that would have prevailed had no wartime regulations or controls existed or been necessary. Id.
REQUISITION OF PROPERTY BY GOVERNMENT-Continued III. The actual value of goods requisitioned by the Govern- ment under its war powers must be determined from all the facts and circumstances disclosed by the record in each case. Id.
IV. Just compensation must be determined on the basis laid down by the authorities. Monongahela Navigation Co. v. United States, 13 Sup. Ct., 622; Seaboard Air Line Ry. Co. v. United States, 261 U. S. 299; Olson v. United States, 292 U. S. 246; United States v. New River Col- lieries Co., 262 U. S. 341; Brooks-Scanlon Corporation v. United States, 265 U. S. 106. Id.
SEA DUTY DEFINED.
See Pay and Allowances I, II, III, IV. SUBCONTRACTORS, CLAIMS OF. See Contract Settlement Act I, II; Contracts XVII.
SUBROGATION.
See Contracts VII.
SURETY, RIGHTS OF.
See Contracts I, II, VII, VIII, IX, X, XI. TAKING.
I. Plaintiff, an irrigation district organized under Cali- fornia laws, owns and operates a concrete storage dam across the Bear river by which water is stored during the winter and spring months and released during the summer and fall to points where it is diverted to the land of the irrigation district. In 1932 and each year thereafter plaintiff customarily constructed across Bear river, below the reservoir dam, a temporary diversion dam by scraping up the gravel on either side and placing it across the river so as to back up the water to a level where it would flow into the irrigation canals on each side of the river. Plaintiff did not own the land from which the gravel was taken. Each fall after the irrigation season, plaintiff would cut the temporary dam and allow the winter floods to wash away the gravel. When the plaintiff constructed and used the gravel diversion dam in 1932 and subsequent years it did so under a claim of right based upon the assumption that it was entitled to do so, its action was open and notorious, and it acquired a prescriptive right or easement under the laws of California. Camp Far West Irrigation District, 263.
II. From the fall of 1942 to June 1, 1943, a considerable quantity of gravel was removed from the bed of the Bear river below plaintiff's diversion dam by the defendant and its contractors and used for construction
purposes, some of the construction work, being per- formed by contractors and some by the Army. All of the gravel taken from the area pertinent to this action was removed either from land owned by another or from land acquired by the defendant on February 29, 1944. The bed of the Bear river is composed entirely of gravel, and although none of the gravel was removed from the river bed itself but from the gravel bars on each side, nevertheless the bed of the stream was so lowered as to render useless for its purpose the cus- tomary gravel diversion dam and after several experi- ments, in which the defendant gratuitously assisted, it was necessary for plaintiff to construct a concrete diversion dam, for the cost of which it sues.
III. Held: There was no taking within the meaning of the Fifth Amendment of the prescriptive easement acquired by plaintiff :
(1) The removal of gravel by defendant could not be construed as a taking of plaintiff's natural rights, even if plaintiff were the owner of the land, which it was not. (2) There was no taking in the constitutional sense of the easement acquired by plaintiff to erect and main- tain a dam upon land owned by others; and plaintiff's prescriptive easement included no right restrictive of the servient owner's right to remove gravel from its land downstream, the interference with which by defendant would constitute a taking of plaintiff's property.
(3) There was no physical invasion of plaintiff's corporeal property as represented by the diversion dam, nor such alteration of the servient tenement as to ren- der ineffective or to destroy the privilege plaintiff had acquired therein to accumulate the waters at the point of the dam site at sufficient level to divert them into its diversion canals; and hence defendant's removal of gravel from the lower stream bed did not constitute a taking of plaintiff's affirmative easement.
(4) The prescriptive easement acquired by plaintiff did not include a withdrawal of the right in the servi- ent land owners to use the gravel in the stream below the dam beyond the amount plaintiff might reason- ably require to restore its gravel dam each year. The ultimate effect of removal of gravel downstream, un- foreseen at the time and not intended, was at most not a destruction of plaintiff's easement but simply an injury which could be, and was, remedied at an ex- pense. Id.
IV. The cost of replacing plaintiff's gravel dam with a per- manent concrete structure would not be a proper basis upon which to fix just compensation even if the dam- age to the dam site was deemed to be a taking, since it is not shown that the removal of gravel by defend- ant was the sole cause of the necessity to replace the gravel dam by concrete. Id.
See also Just Compensation II, III, IV, V, VI, VII, VIII, IX, X, XI, XII; Requisition by Government I, II, III, IV.
I. (1) Where plaintiff, a holding company, owning either di- rectly or through wholly owned subsidiaries, all or sub- stantially all of the capital stock of a large number of corporations engaged in banking, insurance, real estate and other enterprises, following the 1930 de- pression and following a bitter stockholders' fight which caused dissatisfaction among its stockholders and impaired the confidence of the public in its enter- prises, with adverse effects upon the business of its sub- sidiaries, organized a corporation for the purpose of carrying on an advertising and publicity campaign to restore public confidence in the corporation and its subsidiaries, to recapture business, to secure new business, to improve the financial condition of the consolidated group and to improve the relationship of the taxpayer and its subsidiaries with the public; it is held that the reimbursements made by the hold- ing company of the amounts expended by the subsidi- ary for these purposes were ordinary and necessary expenses in connection with carrying on the taxpayer's business within the meaning of the provisions of see- tion 23(a) of the Revenue Act of 1936, and plaintiff is entitled to recover. Transamerica Corporation, 177. II. (2) Where the Commissioner, in his final determination with respect to taxpayer's return for 1936 allowed as a deduction from gross income only the amount of $319,- 348.02 of the total claimed deduction of $1,124,724.78 and disallowed as a deduction the amount of $805,- 376.76; and where both amounts were expended for the same purpose, in carrying out a definite advertising and publicity plan and campaign to accomplish speci- fic business objectives; it is held that the determination of the Commissioner was erroneous and plaintiff is entitled to recover. Helvering v. Winmill, 305 U. S. 79; Spreckels v. Commissioner, 315 U. S. 626; Burnet v.
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