Williams v. Treece
184 Mo. App. 135
Mo. Ct. App.
1914
Check Treatment
NORTON!, J.

This is a suit in unlawful detainer. The finding and judgment were for defendant and plaintiff prosecutes the appeal.

The subject-matter in controversy is the possession of forty acres of land lying partly in, and partly adjacent to, Cushion Lake in Pemiscot county. Defendant is a hunter and fisherman by occupation and the evidence for plaintiff tends to prove that he let the premises to him for that purpose in the early part of the year 1906. Defendant denies the letting in toto, and says that, though he pitched his tent on the bank of the lake and resided on the premises for a number of years and until this suit was brought, he did so as a mere squatter and not under any arrangement with plaintiff. The issue of fact in the case relates to this matter alone, for, as before said., plaintiff affirms he let the premises to defendant and defendant asserts the contrary. The jury found the issue for defendant as though the relation of landlord and tenant did not exist between the parties.

Plaintiff says that defendant applied to him for a lease of the land as he desired to hunt and fish in and about Cushion-Lake. The land was wild and un*137occupied at the time and plaintiff desired to have some one upon it as his tenant. According to the evidence of plaintiff, it was agreed between the parties that defendant should take possession and clear and put in crop whatever ground he desired, but no reservation of rent was made. In other words, in the event defendant cleared up and cultivated any of the land, he should enjoy the returns from such land so cleared and cultivated and the use of the entire forty acres, for that matter, rent free. But plaintiff agreed to pay defendant for any improvements which he put upon the land, such as houses; defendant to hold possession of the land under and for plaintiff. This agreement was a verbal one between the parties and indefinite as to time. It is said defendant took possession within a week or ten days after entering into the agreement with plaintiff above stated. Other witnesses besides plaintiff gave evidence tending to prove that defendant admitted in their presence having entered upon the land under some kind of an arrangement with and through the consent of plaintiff. Defendant says he made no agreement whatever with plaintiff concerning his entry upon the land, but merely told him he intended to move his camp upon it. Defendant went upon the land May 22, 1906, and put up a tent in which he resided for several years, but thereafter constructed a cheap box house for the use, of -himself and family, in which he resided at the time (this suit was commenced. It appears that, shortly before the institution of this suit, plaintiff gave defendant notice in writing, to the end of terminating the tenancy, and made demand upon him for possession of the premises. Defendant declined to accede to this demand and the present suit was instituted in unlawful detainer.

The action of unlawful detainer lies under our statute only when the premises are demised or let to defendant or some person under whom he claims— *138that is to say, in order to maintain it, the relation of landlord and tenant must exist between the parties. [See Whiteside v. Oasis Club, 162 Mo. App. 502, 142. S. W. 752; Forder v. Handlan, 155 Mo. App. 453, 134 S. W. 1110.] The real controversy in the instant case relates to the matter as to whether or not the relation of landlord and tenant existed between plaintiff and defendant. As before said, plaintiff insists he let the' premises to defendant under a verbal agreement of lease, which, through continued possession and use on the part of defendant, operates a tenancy at the will of the lessor. By construction, such creates a tenancy from year to year, terminable by the lessor upon proper notice. [See Tiefenbrun v. Tiefenbrun, 65 Mo. App. 253.] Defendant insists that no such arrangement was made whatever between the parties, and that he merely squatted upon the land, having told plaintiff he contemplated doing so.

In this state of the case, the court'instructed the jury for defendant as follows:

“No. 4. The court instructs you that although you may find from the evidence that the defendant went upon the land described in plaintiff’s complaint and erected á tent thereon and that his going there was with the permission or license of the plaintiff for the purpose of fishing and hunting, yet that fact alone will not constitute the relation of landlord and tenant, and unless you find that the defendant was the tenant* of the plaintiff, your verdict must be for the defendant.”

“No. 3. The court instructs the jury that, before the plaintiff can recover in this action, you must be satisfied from the evidence that the defendant rented or leased the land described in the complaint from the plaintiff and that defendant entered into possession of said lands as such tenant or lessee of the plaintiff and that he continued as tenant or lessee of the plain*139tiff until lie was sued in this action, and unless yon so find your verdict must be for tbe defendant.”

Tbe court refused to instruct, at tbe instance of plaintiff, that if defendant entered into possession of tbe premises in question by bis permission or consent, tbe finding should be for plaintiff, and modified the instruction requested, so as to require tbe jury to find that be entered possession pursuant to an agreement whereby tbe same were rented or let to bim by plaintiff. It is clear tbe two instructions above copied, when read togtber with tbe modified instruction given by tbe court, are misleading. It seems that tbe matter of plaintiff’s permission to defendant to occupy tbe premises free of rent under tbe agreement above detailed is treated as of no consequence in so far as tbe asserted relation of landlord and tenant is concerned, and tbe instructions imply at least that, in order to create that relation between tbe parties, there should have been a renting of tbe place, in tbe sense that a stipend of rent should be reserved. It is true tbe instructions do not in plain terms require a finding that there must be an agreement for tbe payment of. rent in order to create tbe relation of landlord and tenant, but tbe verbiage and construction, when, read together, suggest this thought as of controlling importance. Moreover, defendant’s instruction number 4 expressly informed tbe jury that defendant’s going upon tbe lands “with tbe permission or license of tbe plaintiff for fishing and bunting. . . . alone will not constitute tbe relation of landlord and tenant,” unless tbe jury should further find that defendant was tbe tenant of plaintiff. What is necessary to constitute defendant a tenant is not defined. - This minimizes tbe permission or license of plaintiff for defendant to go upon tbe land under tbe arrangement detailed by plaintiff in evidence, and is prejudicial, indeed.

*140While a reservation of rent is usually incident to the relation of landlord and tenant, it is not ahso lutely essential. It is well settled that the relation of landlord and tenant may arise without a reservation of rent. [See 24 Cyc. 877.] Indeed, the relation of landlord and tenant may he defined in general terms as that which arises from a contract hy which one person occupies the property of another with his permission and in subordination to his right, the occupant in such cases being known as the tenant and the person in subordination to whom he occupies as the landlord. It is essential to the relation that the occupancy be both permissive and subordinate. When the two latter elements co-exist, it is sufficient, though there be no actual reservation of rent. [See 24 Cyc. 876, 877; 1 Wood’s Landlord and Tenant (2 Ed.), see. 1; 1 Taylor’s Landlord and Tenant (9 Ed.), sec. 14; Gillespie v. Hendren, 98 Mo. App. 622; 73 S. W. 361; Wilkinson v. Wilkinson, 62 Mo. App. 249.] A tenant is declared by the elementary writers above cited on the law of landlord and tenant to be one who occupies the land or premises of another in subordination to that other’s title and with his assent, express or implied, and that it suffices to create the relation if these two elements concur. [See Adams v. Gilchrist, 63 Mo. App. 639, 645,]

It is clear the instructions above copied misdirected the jury and because of them the judgment should be reversed and the cause remanded. It is so ordered.

Reynolds, P. J., and Allen, J., concur.