Lockwood v. Thunder Bay River Boom Co.

• Decision Date: 23 January 1880
• Citation: 4 N.W. 292,42 Mich. 536
• Court: Michigan Supreme Court
• Parties: JAMES H. LOCKWOOD v. THUNDER BAY RIVER BOOM CO.

4 N.W. 292

42 Mich. 536

JAMES H. LOCKWOOD v. THUNDER BAY RIVER BOOM CO.

Supreme Court of Michigan

January 23, 1880

An action for use and occupation can only be maintained where there is a contract relation between the parties as to the land. It is not maintainable against a mere trespasser. In an action of assumpsit for damages authorized by the statute (Laws 1875, p. 103,) resulting from trespass, the declaration should set out the damages, and only those resulting from the trespass are recoverable.

Error to Alpena.

Turnbull & McDonald, for plaintiff in error.

Kelly v. Clayberg, for defendant in error.

CAMPBELL, J.

Plaintiff sued defendant for the use and occupation of booming grounds in front of his lands on Thunder Bay River. The occupation consisted of filling up the river with logs, which were kept back by a large boom which they had below crossing the stream, the effect of which was to leave their logs lying in that part of the stream belonging to plaintiff.

The testimony showed that there had never been any agreement for the occupation of this property, but that plaintiff had repeatedly told members of the company, individually, and at a company meeting, that they must pay for the use if they occupied the premises. The company is not shown to have taken any action on the subject, but some of the directors appear to have told the superintendent not to use it. The first interference with plaintiff was the destruction of his boom by the jamming of logs caused by defendant's boom below and in his complaints to the company and its members he also claimed damages for this. The sum which plaintiff insisted he should be paid if they used it was $300 a year. Plaintiff among other acts, asked the manager what they meant by using the premises, and if they intended to continue the use. The manager replied they did, as they could not well get along without it. Plaintiff told him they must pay for it, and was answered that it was for the Boom Company to decide, and not for the manager.

It has been uniformly held in this state that an action for use and occupation will not lie except where a contract relation exists of landlord and tenant, by virtue of which an obligation exists to pay rent. Dwight v. Cutler, 3 Mich. 566; Hogsett v. Ellis, 17 Mich. 351; Dalton v. Landahn, 30 Mich. 349; Wilmarth v. Palmer, 34 Mich. 347; Marquette & Houghton R. Co v. Harlow, 37 Mich. 554.

While there are some cases in which tort may be waived and assumpsit brought, this doctrine has not been applied to trespass on lands, except under a statute which will presently be referred to. Usually no adverse relation can be turned into a contract relation, express or implied. The exceptions are only apparent, and do not rest on the idea that a contract has been created, but upon some duty on which, for purposes of convienience, the law has allowed a fiction of a contract to simplify the redress. See Ward v. Warner, 8 Mich. 508; Watson v. Stever, 25 Mich. 386.

Unless the person charged as tenant has either accepted possession from the landlord, or done some other act in plain recognition of the relationship, or whereby he is equitably estopped from denying it, no contract can be made out. In the present case the action sued upon has been a long continued series of similar acts, which began in what is claimed by plaintiff to have been a trespass, whereby his boom was destroyed, and which have been continued without asking or accepting permission, or admitting any tenure or obligation to pay rent.

If there has been any responsibility to plaintiff it is to respond in damages for a wrong and not to pay a contract obligation. A careful inspection of the record fails to show...