9 Mo. App. 436 | Mo. Ct. App. | 1881
delivered the opinion of the court.
Briefly stated, the petition in this case sets forth, as a cause of action, that the plaintiffs “are, and for a long time have been, tenants and occupiers” of a certain room in a building in the city of St. Louis, as a law office ; that the defendant occupies the lower portion of said building, and also
7'The plaintiffs then offered evidence in support of the petition. To this the defendant objected, on the grouud that the petition did not state any cause of action, and especially that it did not state sufficient ground for equitable relief. This objection the court sustained, and dismissed the suit at the cost of the plaintiffs.
The petition states that, the plaintiffs are “tenants and occupiers,” but it does not state the nature or duration of their tenancy. Under our statute (Rev. Stats., sect. 3078) all tenancies are to be taken to be tenancies from month to month, unless there is a written contract to the contrary. Taking the pleading most strongly against the pleader, we must presume that such was the nature of their tenancy; and the question is therefore narrowed down to this: whether a tenant from month to mouth can maintain a suit for an injunction to restrain a nuisance injurious to his possession. We are of opinion that he cannot. No case has been cited to us which so holds, and we have been unable to find any. Cases have been cited to us where such relief has been granted to tenants for a term of years. Knox v. Mayor, 55 Barb. 404; Delaney v. Blizzard, 7 Hun, 7 ; Raband v. Frank, 7 Mo. App. 64. One case is found where such
A tenancy from month to month is not a continuing right of possession; but, as in case of a tenancy from year to-year, it is taken to end and recommence at the expiration of every month. Tomkins v. Lawrance, 8 Car. & P. 729 ; Gandy v. Jubber, 5 Best & S. 78. An injunction to restrain a nuisance is granted only where the right to be protected is a permanent one, or where its enjoyment has been •of long duration. Van Bergen v. Van Bergen, 3 Johns. Ch. 282 ; Porter v. Witham, 17 Me. 292 ; Jordan v. Woodward, 38 Me. 423. The interest of a tenant from,month to month .is not such a right, although he may, as is alleged in this petition, have long been in the enjoyment of the premises by such a tenure.
The court below, therefore,.committed no error in refusing, to receive the evidence and in dismissing the suit, and ,the judgment is affirmed.