(concurring). I think that the holding over by the tenant after the expiration of the first year expressed in the written contract created a tenancy “from year to year,” and that notice for six months prior to the end of the year was essential to terminate the tenancy. Holding over under the particular contract involved in this case created a typical tenancy from year to year. The original contract did not bind the parties to a renting for more than one year, and at the end of that period the contract terminated itself at the will of either party without notice. It may be true, as stated in the opinion of the majority, that the language of the contract evinces an intention to continue the tenancy beyond the term of one year specified therein, but the language is ineffectual to constitute an agreement to so extend it. It is not obligatory on the part of either the landlord or the tenant to extend the term beyond one year. It then took some further action on the part of the landlord’ and tenant to extend the term. Usually in such eases the mere holding over by the tenant beyond the stipulated term constitutes a tenancy at will, and acceptance of rent by the landlord is necessary to create a tenancy from term to term; but under some circumstances acquiescence by mere silence on the part of the landlord would create a tenancy from, term to term. The holding over of farm lands and preparations for the planting of a crop would doubtless be circumstances which would justify any court in holding that a tenancy from term to term had been created if no objection was made by the landlord, even without accepting rent.
The law on this subject is fully treated by Mr. Underhill in his work on Landlord and Tenant (vol. 1, 92, 97). Many cases are cited in support of the law there announced. The text contains the following statement which is controlling, I think, in the present case: “Lease of land for one year, with, a privilege of continuing the same from year to year, so long as both parties agree, creates a tenancy from year to year. ’ ’
In the Wisconsin cases cited in the opinion of the majority (Waterman v. LeSage, 142 Wis. 97), the court said: “But the weight of judicial authority seems to be that, independent of statute, when the tenant, after the expiration of a term fixed by the lease at one year or less, continues to occupy the leased premises without any new contract, this may, at the election of the landlord, be considered a renewal of the prior lease for a like period and upon like terms.”
I fail to see how the instant case can be distinguished from the very numerous cases on this subject because there is an unenforceable agreement in the contract to continue the tenancy for a longer period than one year. There is no conflict in the authorities to the effect that in a tenancy from .year to year notice for six months preceding the end of the year is essential to a termination of the tenancy. Underhill on Landlord and Tenant, § 112.
I agree to a reversal of the case, but I think the court bases the reversal on erroneous grounds, and that the majority are inconsistent in holding that a tenancy from year to year was not created, but that reasonable notice was essential to terminate the tenancy. If there was no tenancy from year to year, then the term ended at the end of each year, and either party had the right, without notice, to decline a further extension. If there was no tenancy from year to year, then the judgment ought to be affirmed. However, my conclusion is that there was a tenancy from year to year, and that the notice of six months was necessary in order to terminate it.