Lathrop v. Standard Oil Co.

Bleckley, Chief Justice. The action in the county court was upon an account for rent, the declaration embracing also a special count 310 for use and occupation, alleging that such use and occupation were at the request of the defendant, and by the sufferance and permission of the plaintiff. The judgment of the county court was in favor of the defendant, and the plaintiff petitioned for the writ of certiorari, which was denied. We think that under the evidence contained in the record, the action rightly failed, for the reason that no contract relation or relation of landlord and tenant between the parties was established. That to support an action for use and occupation, either an express or implied contract is necessary, admits of no question. Williamson v. Hollis, 19 Ga. 313; Jackson v. Mowry, 30 Ga. 143; Littleton v. Wynn, 31 Ga. 583; McLendon v. R. R. Co., 54 Ga. 293 ; Fitzgerald v. Beebe, 46 Am. Decis. (notes) 289-90; Taylor’s Landl. & Ten. §636; 2 Saund. Pl. & Ev. 1169 et seq. True it is that, where title is shown in the plaintiff) together with the fact of occupation by the defendant, without more, the relation of landlord and tenant is to be presumed, and a contract for rent implied. Mercer v. Mercer, 12 Ga. 421; Clark v Green, 35 Ga. 92. But reading these cases in connection with Jackson v. Mowry, supra, it will be seen that where the entry of the defendant was not under 'the plaintiff, and his right to occupy was and is claimed adversely to the plaintiff, then the implication of tenancy or of contract will not arise, and the action must fail. The brief of counsel here for the plaintiff in error was rested chiefly on Richardson v. Harvey, 37 Ga. 224; and Godfrey v. Walker, 42 Ga. 562; but we think these cases do not apply to the facts before us. The negotiations between the parties looking to the recognition of the plaintiff as landlord, and to the payment both of past and future rent, had no result. No terms were agreed upon, and there is nothing to indicate that the defendant or its agent intended to treat 311 the plaintiff as landlord, or as entitled to claim any rent except as a result of negotiations.. The entry was made under the authority of the railroad company or its representative, and the occupation'during-the.whole period has been and still is by permission, express or implied, of that company. If this occupation is-wrongful as against the plaintiff, he has his remedy by action of ejectment, and to that remedy he may resort should he think proper. Judgment affirmed.