Dixon v. Ahern

• Decision Date: 25 June 1887
• Docket Number: 1,240.
• Citation: 14 P. 598,19 Nev. 422
• Parties: DIXON v. AHERN.
• Court: Nevada Supreme Court

14 P. 598

19 Nev. 422

DIXON v. AHERN.

No. 1,240.

Supreme Court of Nevada

June 25, 1887

Appeal from district court, Eureka county.

Plaintiff had judgment below.

Baker & Wines, for appellant.

Wren & Cheney and Fitzgerald & Beatty, for respondent.

LEONARD C.J.

Action for use and occupation of a tract of land. It is alleged 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 are reasonably 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 plaintiff's 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 such entry, and that said defendant continued to so hold the possession, and so continued to use and occupy the same against the consent of plaintiff, and that defendant, during such time, denied the plaintiff's right thereto, and never at any time promised or agreed to pay plaintiff for the use and occupation of said premises, but at all times refused to admit the right of plaintiff to recover from defendant for such use and occupation,--then I charge you that plaintiff cannot recover in this action, and your verdict should be for the defendant."

In order to recover in this action, 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 Lumb. 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; Tayl. Landl. & Ten. § 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, Landl. & Ten. § 3; Tayl. Landl. & Ten. § 25; Eastman v. Howard, 30 Me. 60; Ward v. Warner, 8 Mich. 521; Executors of Smith v. Houston, 16 Ala. 115.

"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, but 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 created. In order to have that effect, the person in possession must accept such permission, and consent to hold under him, and in subordination to his title. Where a person goes into the possession wrongfully, it is undoubtedly competent for the parties, by a contract subsequently made, to change the relation from that of a trespasser to that of a tenant. But in such a case the contract must be explicit, and embrace all the elements previously referred to; and if it is intended to have the tenancy commence from the date of the original entry, so as to change the owner's remedy for the period of wrongful occupancy from trespass to an action for rent, the contract should explicitly embrace the whole period of occupancy, or neither the character of the prior occupancy nor the remedy will be changed. PATTERSON, J., in an English case, said: 'Use and occupation may arise from the waiver of a tort, or from simply letting into possession.' But it is apprehended that an action for use and occupation could not be maintained for a tortious entry and occupancy, because the owner of the premises cannot, by electing to do so, compel a person, who entered into the possession of premises against the owner's right, to occupy towards him the relation of tenant, unless such person elects to assume that relation; that is, the owner cannot, at his option, elect to treat such person as a wrong-doer or tenant; but, in order to enable him to treat him as a tenant, and proceed against him for rent, the relation between them must be such as to raise the presumption of a contract, or the remedy is by an action ex delicto. *** In order to create the relation of landlord and tenant, no particular words are necessary; but the intention of one party to dispossess himself of the premises, and of the other to enter and occupy them as the former himself had a right to do, must, in some way, appear, and, in all cases where the facts are disputed, the question as to whether a tenancy exists is for the jury." Wood, Landl. & Ten. § 1; Young v. Coleman, 43 Mo. 179.

"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; Waller v. Morgan, 18 B. Mon. 142; Lankford v. Green, 52 Ala. 104.

"Where, however, possession is taken by one, with the permission or assent of the owner, from such possession the relation of landlord and tenant is implied, as well as a promise to pay rent." Wood, Landl. & Ten. § 3; Tayl. Landl. & Ten. § 19; Watson v. Brainard, supra.

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 consent, 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; Wiggin v. Wiggin, 6 N.H. 298. *** In this case the plaintiff alleges in his complaint that Holdridge permitted the defendant to have, hold, and occupy the premises, and ' that the defendant, according to that permission, held and occupied,' etc. The defendant, in his answer, denies the permission of Holdridge, and denies that he, according to the permission, held, occupied, and enjoyed the premises. It appears to us the instruction ignored the material part of the issue, to-wit, that formed by the denial of the defendant that he held possession according to the permission of the plaintiff, and was therefore erroneous. A trespasser cannot be converted into a tenant without his consent." And see Ward v. Warner, supra; Jackson v. Tyler, 2 Johns. 445; Richey v. Hinde, 6 Ohio, 378; Peters v. Elkins, 14 Ohio, 345; Hathaway v. Ryan, 35 Cal. 193; Hurley v. Lamoreaux, 29 Minn. 138, 12 N.W. 447; Kittredge v. Peaslee, 3 Allen, 237.

It is not claimed by counsel for respondent that the instruction 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 some evidence from which the jury might have inferred the existence of the facts stated, then the instruction was properly refused. Williams v. Barksdale, 58 Ala. 288. On the other hand, defendant was entitled to an instruction applicable to the theory he contended for, and which the evidence tended to support. Comstock v. Norton, 36 Mich. 280; Anderson v. Bath, 42 Me. 346; Moresi v. Swift, 15 Nev. 221. "He was entitled to have specific charges upon the law applicable to each of the hypotheses or combinations of facts which the jury, from the evidence, might legitimately find." Sword v. Keith, 31 Mich. 255.

In Bradford v. Marbury, 12 Ala. 527 the court say: "It is at all times a question of much delicacy to refuse a legal charge...