Central Mills Co. v. Hart

124 Mass. 123 | Mass. | 1878

Ames, J.

In order to maintain assumpsit for the use and occupation of land, something in the nature of a demise must be shown, or some evidence given to establish the relation of landlord and tenant. That relation can only grow out of a contract, and it has accordingly been held that a contract, express or implied, is necessary in order to sustain assumpsit for use and occupation. Codman v. Jenkins, 14 Mass. 93, 95. Boston v. Binney, 11 Pick. 1. Merrill v. Bullock, 105 Mass. 486, 490. Bancroft v. Wardwell, 13 Johns. 489. Smith v. Stewart, 6 Johns. 46. The contract need not be technically formal, but there must at least be a permissive occupation by the tenant. Occupation by the tenant with the assent of the landlord is indispensable to the maintenance of the action. Wood v. Wilcox, 1 Denio, 37.

In the present case, it is not contended that there was any exclusive or continuous occupation by the defendants of the land or the tracks. .On the contrary, it appears that the plaintiff used the land, in connection with the track and its own freight-house, all the time covered by the declaration, although this use was seriously interfered with and made inconvenient by the use made of the land and track by these trustees and the persons who dealt with them. We must suppose that this use by the defendants was beneficial and convenient to them, but it does not appear to us such a legal or constructive possession of the premises as is implied in the term demise. Hamblett v. Bennett, 6 Allen, 140. If their entry upon and occasional or even frequent use of the land and track were by the permission of the plaintiff, the most that can be said would be that they had a mere license to use the land, which would be revocable at the pleasure of the plaintiff so long as it remained executory, and, until so countermanded, could only operate as an. excuse for a trespass

On the. other hand, if this use of the land by the defendants was not with the permission of the plaintiff, and was a matter of complaint and objection on its part, then it was a mere trespass, and not a demise. The relation of landlord and tenant in that case would have no existence between these parties. Smith v. Stewart, ubi supra. In either case, we see no ground on which the plaintiff can be entitled to recover in the present action.

Verdict set aside.