19 Nev. 422 | Nev. | 1887
By the Court,
Action for use and occupation of a tract of land. Itisalleged in the complaint that on or about September 10, 1880, plaintiff was the owner and in the possession of said tract, at which ■time, with plaintiff’s permission, defendant entered into the use and occupation thereof, for the purpose of piling and storing cord-wood, and so continued in such use and occupation for said purpose until October 18, 1885; that said use and occupation was reas'onably worth a certain sum stated, which sum was demanded prior to the commencement of the action, no part of which has been paid. Defendant denied plaintifPs ownership or possession, or that he entered with plaintiff’s permission, or that he used or occupied said tract at any time with plaintiff’s permission, or that said use and occupation were worth the sum stated, or any sum, or that said sum, or any sum, was due from defendant to plaintiff. Plaintiff recovered judgment for the amount claimed, besides costs. Defendant appeals from the judgment, and specifies as error the court’s refusal to give the following instruction to the jury: “ The court also charges you that, if you believe from the evidence in this case that the defendant, some time in the spring and summer of 1880, entered into or upon the tract of ground mentioned in the complaint, being the ground upon which his wood was corded, against the will and consent of plaintiff, and without the knowledge or permission of plaintiff, and without any previous understanding had with plaintiff in relation to
In order to recover in this action, the plaintiff was obliged to allege and prove that the relation of landlord and tenant subsisted between him and defendant. That relation may be created either by an express or implied contract. (Knickerbocker Co. v. Hall, 3 Nev. 198; Carson River L. Co. v. Bassett, 2 Nev. 249; Railroad Co. v. Harlow, 37 Mich. 554; Lloyd v. Hough, 1 How. 154; Watson v. Brainard, 33 Vt. 90; Tay. Land. & Ten., sec. 19.)
“ Every contract, whether express or implied, includes a concurrence of intention between the two parties, one of whom promises something to the other, who, on his part, accepts such promise.” (1 Wait, Act. & Def. 70, 72.)
“ The mere occupation of premises does not, of itself, necessarily imply that the relation of landlord and tenant exists.” (Wood, Land. & Ten., sec. 3; Tay. Land. & Ten., sec. 25; Eastman v. Howard, 30 Me. 60;
“ A tenant is one who occupies lands or premises of another, in subordination to that other’s title and with his assent, express or implied. But, in order to create the relation, the two elements must concur. The fact that one is in possession of the lands of another does not, of itself, establish a tenancy, because, if he is in possession under claim of title in himself, or under title of another, or even in recognition of the owner’s title, cut without his assent, he is a mere trespasser, and cannot be compelled to yield rent for his occupancy, nor is he estopped from attacking the owner’s title. In such case, all the elements requisite to create the relation of landlord on the one hand, or of tenant on the other, are lacking, to wit, assent on the one hand, and subordination to the title upon the other. If the owner gives his assent to the occupancy of one who has entered upon his lands adversely, a tenancy is not thereby
“When a person occupies the land of another, not as tenant, but adversely, or where the circumstances under which he enters show that he does not recognize the owner as his landlord, this action will not lie.” (Butler v. Cowles, 4 Ohio, 213;
“Where, however, possession is taken by one, with the per
In commenting upon an instruction given in Ackerman v. Lyman, 20 Wis. 456, the court said: “But the instruction is to the effect that, if he entered as a trespasser, without claim of title, and remained in possession with the assent of Holdridge, the law will imply a promise to pay rent. If this be so, then all that is necessary to convert a trespasser into a tenant is for the owner of the premises to say to him, ‘I assent to your possession,’ and a trespasser becomes a tenant without his own consc-nt, or even against his will. A tort cannot thus be converted into a contract. * * *” “It [the agreement] may be implied from the defendant’s entering into possession by the permission of plaintiff, or from acts showing the assent of the defendant, after a tortious entry, to hold under the permission of the plaintiff. (Henwood v. Cheeseman, 3 Serg. & R. 500; Ryan v. Marsh, 2 Nott & McC. 156; Stockett v. Watkins, 2 Gill & J. 326;
It is not claimed by counsel forrespondent that theinstructionJ refused is an incorrect statement of the law in the abstract, but it is said that it assumes a state of facts without any evidence fairly tending to prove them. Unless there was some evidence tending to establish all the hypotheses upon which the instruction was based, or som > eviueuoe from which the jury might
In Bradford v. Marbury, 12 Ala. 527,
In Harley v. McAuliff, 26 Mo. 525, it is said an instruction that there is no evidence on which a verdict can be founded is incorrect, if there is the least particle of evidence, whether direct or inferential, on which such verdict could be founded; and to the same effect is Emerson v. Sturgeon, 18 Mo. 170.
A charge is not abstract when there is any evidence, however weak, at all tending to support it. (Hair v. Little, 28 Ala. 236; McNeill v. Arnold, 22 Ark. 477; Hopkins v. Richardson, 9 Gratt. 496.)
Juries may infer the existence óf a fact from other facts. (Memphis & C. R. Co. v. Bibb, 37 Ala. 699; Morris v. Hall, 41 Ala. 534; Cambria Iron Co. v. Tomb, 48 Pa. St. 393; Lawson, Presump. Ev. 557.) They are bound by all the rules and presumptions of law, as far as they apply. (Starkie, Ev., side p. 816; Proffatt, Jury T., see. 360; 1 Tay. Law of Ev., sec. 171.)
Whether a legal presumption has or has not been rebutted is a question for the jury. (Foster v. Berkey, 8 Minn. 361.)
Taking the law applicable to the present case to be as above expressed, we are now prepared to examine the instruction in question in connection with the pleadings and evidence admitted. It was agreed by both parties at the trial that defendant entered upon the tract of land described in the complaint, and corded all of his wood thereon, against the will, and without the consent or permission, of plaintiff, and without any previous
At the request of plaintiff, the court instructed the jury as follows: “ If you believe from the evidence that the defendant entered into the use of the premises without any express agreement as to the rent to be paid therefor, but that after so entering, the defendant consented to and acquiesced in the right and claim for rent for such use, the defendant is liable for the reasonable value of such use as long as he continued to use the same after so consenting and acquiescing in the claim and demand of plaintiff. The silence, conduct, and acts of defendant during the time ho occupied said premises, and in removing the wood therefrom, are proper matters for you to consider in determining whether defendant impliedly agreed to pay rent for the use of said premises.”
It is patent therefore that plaintiff claimed, first, that he was in possession o'f the land when defendant entered; and second, that after the entry defendant impliedly consented to, and acquiesced in, his right and claim for rent; that defendant impliedly admitted plaintiff’s right to the premises, and that his occupancy was in pursuance of plaintiff’s permission, and in subordination to plaintiff’s title. On the other hand, defendant claimed^rsiUhatplaintiff’s possession was not such as tocntitle him to maintain an action for use and occupation; and second, that he entered upon the land without plaintiff’s knowledge, against his will and consent, believing the same to bo a part of the public domain, and that after entering, he did not consent to or acquiesce in the right and claim of plaintiff for rent, or admit his right to the land. In a word, he denied completely by his answer, and as fully as he was able by his evidence, both claims of plaintiff above stated.
Referring, now, to the instruction under consideration, it is admitted by counsel for respondent that there was evidence to the effect that “defendant entered against the will and consent of plaintiff, and without his knowledge or permission, and without any previous understanding had with plaintiff in relation to such entry, and that defendant never at any time
But it is earnestly urged by them that there was no evidence “ that said defendant continued to so hold the possession, and so continued to use and occupy the same against the consent of plaintiff”; or “that defendant, during such time, denied the plaintiff’s right thereto”; or “that defendant at all times refused to admit the right of plaintiff to recover from defendant, for such use and occupation.” It is true that no witness testified in terms to the facts hypothetically stated in the instruction, and objected to by counsel for respondent; but without deciding or intimating as to the sufficiency of the evidence to establish the several facts supposed, we think it is equally certain that there was evidence of facts which, together with the presumption arising therefrom, tended, at least, to establish the facts stated.
At plaintiff’s request, the court instructed the jury to the effect that if, after entering, defendant consented to, and acquiesced in, the right and claim of plaintiff for rent, the defendant was liable; and in determining the question of acquiescence they might consider the silence, conduct, and acts of defendant while he occupied the premises, and in removing the wood. And counsel for respondent say that inasmuch as the jury by their verdict found that defendant did acquiesce in plaintiff’s claim, and did. impliedly agree to pay rent, their finding is conclusive. But we cannot know what the finding would have been if the minds of the jury had been directed to the facts stated in the instruction.
In State v. Carnahan, 17 Iowa, 256, the court gave an instruc* tion wherein he grouped together many facts legitimately provable in such a case, and which theevidence tended to establish, and instructed the jury that “such facts as these, if shown by the testimony, constitute circumstantial evidence. Circumstantial evidence is legal evidence, and convictions had upon it are legal convictions. In the case before them, the jury will look at all the evidence, and from it make up their minds as to the guilt or innocence of the defendant.” The supreme court said: “But it is claimed in argument here that the facts thus grouped together by the court all bear upon one side, and against the defendant. * * * If there were, however, any facts shown, or which the evidence tended to show, bearing in his favor, it
And in McCausland v. Cresap, 3 G. Greene, 161, the court said: “ If the charge were not sufficiently direct on this or any other point involved in the case, it was in the power of the defendant’s attorney to request of the court, in writing, instructions in such a manner as to bring the matter directly to the mind of the court, and have it, on the law, presented to the jury.”
If there was evidence in this case which tended to establish the facts stated, the defendant had the right to have the minds of the jury directed to them, in determining the question of acquiescence subsequent to entry, which was the turning-point in the case.
We have seen wnat facts were admitted by both parties at the trial, and that from them the relation of landlord and tenant could not have existed until after defendant had entered and piled his wood. It was agreed also, and the court so instructed the jury, that defendant never expressly promised to pay rent. Plaintiff testified that the wood was placed on the ground without his consent or knowledge; that he did not want it there, and always objected to it, as he needed the ground for his own use, but was willing it should remain if he was paid rent. He testified that in one of the two or three conversations which he said he had with defendant in the summer or fall of 1880 he told defendant that he must have five dollars per month ground-rent, and that he would hold the wood as security; but defendant denied that plaintiff' ever notified him that he would be required to pay for the use of the ground. Defendant also testified that he never'had but one conversation with plaintiff in regard to the ground or wood until just before the commencement of this action, when plaintiff presented his bill; that at the first conversation plaintiff asked him if the wood was defendant’s or Brisacher’s, and that he replied, “ It is mine or Brisacher’s.” Plaintiff did not testify that defendant at any time admitted plaintiff’s right to the land, or his right to collect rent. There was no evidence that plaintiff' had any other title than that given by possession, and defendant testified that in June,
On this appeal the verdict of the jury is conclusive as to plaintiff’s possession when defendant entered, no exception having been taken to the court’s instruction upon that question. But the facts above stated, and particularly those admitted concerning defendant’s entry; the evidence that he believed the land was possessed by no one, and that he had a right to occupy it; that, prior to the entry,, there was no fence on the western side,, or anything to show the extent of any one’s possession; that defendant did. not settle plaintiff’s claim when it was presented, before this aetion was commenced; that he contested the claim in the court below, as before stated; that he never promised to pay rent; that plaintiff, during the five years of occupation, never notified him that he would be required to pay rent,- — this evidence tended, at least, to show that defendant entered upon, and continued to use, the land under claim of right in himself, not in subordination to plaintiff’s right and title, not as plaintiff ’b tenant, and that he did not acquiesce in plaintiff’s claim for rent; and, if the evidence tended to establish the facts just stated, it tended also' t'o- sustain every fact objected to in the-instruction.
Again, if defendant entered against the will and consent of plaintiff, and without his permission, under claim of right in himself, there was a legal presumption that the same state of facts and defendant’s state of mind continued as before, until the contrary was shown, and the burden of proof was upon plaintiff. (1 Greenl. Ev., sec. 41; Best, Ev. 303, note c, 389; Lawson, Presump. Ev. 167; Table Mt. M. Co. v. Waller’s Defeat
In Leport v. Todd, 32 N. J. Law, 128, it was an undisputed fact that Drake, while possessed of the premises in question, declared that he had entered, as the tenant of Hanna, who was admitted to be the owner. The court refused defendant’s request to charge the jury, if they believed from the evidence that Drake entered as tenant of Hanna, he was presumed to have , continued there as. tenant until the contrary was proved. The appellate court held the refusal error, and said: “ I think the court should have charged, as requested, to the effect .thait it is a, legal presumption that a possession, beginning in ({he assent of a landlord, continues, in subordination to his ■title, .until a change of tenure is shown by the evidence.” There was. an equally strong opposite presumption in this case.
In Cummins v. James, 4 Ark. 616, the.trial court refused the .following'.instruction: “ If the jury believe from the evidence that the .legal right to the money in controversy is in the bank <of-.the United States,they roust find'for the defendants”; and “unless .the jury believe from the evidence that the plaintiffs are legally the assignees of the bank, they must find for the 'defendants,” Said the court: “The principle is'unquestionably true that a.party, to maintain an aption, must be entitled to the legal interest in the suit. If the legal, interest is shown to he in plaintiff, the action will lie; if in another, it cannot be maintained. If there is a contrariety of testimony as to the person in whom the legal interest is vested, and that question .is a matter of fact, to be determined by the jury, then, of course, it would bp error in the court to take the question from the jury. There was,certainly a conflict of testimony as to the legal interest. * * * Now, the refusal of the first .instrucvtion virtually took from the jury the question of fact as to the right of action. The court, by refusing to instruct the jury that, if they believed the legal interest was in the bank of the United States, then they ought to find for the defendants, clearly decided the point that there was no evidence tending to show that, the bank was.the legal.owner of the money. In this they were mistaken; for, by admitting the proof that-the money was collected-upon a judgment rendered in favor of the bank, there was a presumption raised that the bank possessed
But in this case, as we have endeavored to show, there were, besides the presumption mentioned, facts and circumstances tending to show that defendant did not enter, or, after entry, hold possession, in subordination to plaintiff’s title, or acquiesce in plaintiff’s claim for rent; and if such was their tendency, they tended also to establish every fact stated in the instruction under consideration.
Judgment reversed, and cause remanded.
50 Am. Dec. 611.
19 Am. Dec. 612.
20 Am. Dec. 438.
46 Am. Dec. 264.
97 Am. Dec. 526.