34 P. 337 | Nev. | 1890
Lead Opinion
The facts sufficiently appear in the opinion. *66
Addendum
This case came before this court on appeal from the refusal of the judge of the district court to give an instruction asked for by the appellant (respondent here) on that hearing, and was remanded for a new trial. (
This appeal is taken from a judgment of non-suit entered upon defendant's motion.
The only question for us to determine is, are the facts introduced by the plaintiff in this case sufficient to establish the relationship of landlord and tenant. We think not. All the elements requisite to create the relationship of landlord and tenant are lacking; that is, the assent of the landlord on the one side, and the recognition of the landlord's title by the tenant. The defendant in this case entered upon the premises without the *67
knowledge or consent of the plaintiff, and never did, by word or act, so far as the record shows, recognize the plaintiff's title. Defendant was a trespasser, and not a tenant; and the mere fact that he said: "If I owned the wood, I would pay the rent," does not create the relationship of landlord and tenant. In order to have that effect, the defendant should have recognized the plaintiff's title and agreed to hold under him and in subordination to it. (1 Wood, Landl.
Ten. Sec. 1; Tayl. Landl. Ten Sec. 21; CentralMills v. Hart,
From the evidence introduced on the part of the plaintiff on the trial of this cause, he could not recover; therefore the non-suit was properly granted. Judgment affirmed.