124 Mass. 307 | Mass. | 1878
So far as any question is intended to be raised upon the pleadings in this case, it is probable that the question is whether the tenant has been in such possession of the demanded premises as to exclude the demandants from possession, or to authorize the demandants to elect to consider themselves disseised. We presume that all the evidence deemed material is reported. Upon, this evidence, a jury would not be warranted in finding that the tenant had disseised the demandants or had claimed any title to the soil and freehold. The utmost which the evidence would warrant a jury to find is, that the tenant had claimed an easement in the demanded premises, and had enjoyed the same. This is no answer to .the tenant’s disclaimer. There may be cases, in which the tenant, although disclaiming title, may have had such an actual occupation of the premises as to entitle the demandant to elect to consider himself disseised, although such occupation was by inadvertence, and without any intention to claim title to the soil and freehold. Proprietors of Locks & Canals v. Nashua & Lowell Railroad, 104 Mass. 1. But where it is plain that the claim of the tenant is merely an easement, and that he has had no other use than that of such easement the demandant cannot elect to consider himself disseised and recover against the tenant compensation for such use. We are therefore of opinion that the tenant is entitled to its costs, while the demandants are entitled to judgment for possession. Judgment accordingly.