Sellers v. Frank

DeColtrcy, J. During the time covered by the declaration in these two actions, a portion of the ell of the defendant’s house extended, beyond his own lot and upon the adjoining land of the plaintiff. If this encroachment existed without the consent of the landowner the defendant would be a trespasser; and his occupation, even by her permission, would be only that of a mere licensee unless he was there as her tenant. The judge of the Superior Court, in finding for the plaintiff, necessarily must have found that the use and occupation by the defendant was with the permission of the plaintiff and under a contract, express or implied, that created between them the relation of landlord and tenant. Central Mills Co. v. Hart, 124 Mass. 123. The sole question raised by the exceptions is whether on all the evidence it should have been ruled that the plaintiff was not entitled to recover. Although no express contract of tenancy was shown, we cannot say as matter of law that the trial judge was not warranted in inferring such an agreement from the conduct of the parties. In her letter of August 10, 1909, the plaintiff offered to let to the defendant, as tenant at will, the land upon which the ell of the building stood, and it could be found that this offer remained open until after the period for which rent is now demanded. Although the defendant’s reply of August 12 was somewhat ambiguous, it certainly did not decline this offer; and neither then nor later did he claim any right to occupy the land without the plaintiff’s consent. The judge well might infer from the defendant’s conduct that he assented to the plaintiff’s proposition, that under the contract so created he continued to occupy the premises as tenant at the rental of $1 a day, and that he did not acquiesce in the plaintiff’s attempt to increase the rent during the tenancy. Exceptions overruled.