Henderson v. City of Detroit

Sherwood, J. This action is assumpsit for use and occupation of land in the city of Detroit by a corporation constituting a part of the local government of the city, and known as the Detroit Fire Commission. The plaintiff claimed to be the owner of the land for which rent was claimed, and that the Detroit Fire Commission •entered thereon without the consent of the plaintiff, and erected, partly upon the premises, an engine-house, and planked other portions of the land, and used the whole of it for hook and ladder company No. 2; that after the fire company had thus entered upon the land the plaintiff notified'the president of the Detroit Fire Commission to take the building away, and remove the planking, if they would not pay him rent for the use of his land, but the fire commission would do neither. The plaintiff claimed a yearly rent of $52. The cause was tried before Judge Chambers, in the Wayne circuit, without a jury, and the plaintiff was allowed to recover [383] a judgment for tlie sum of $360.50 damages, with his costs to be taxed. The cause is now brought before us for review upon a case made after judgment. The errors upon which the appellant .relics are: 1. That the facts proved did not create any liability on the part of the city, because the use and occupation of the premises was by the Detroit Fire Commission, which is a distinct and separate corporation, 2. Because the facts proved did not raise any implied .assumpsit on the part of the city of Detroit to pay for the use and occupation of the premises, and the plaintiff’s remedy, if he has any, is by an action of trespass, or an action of ejectment and mesne profits. We think that the second ground of error must prevail under the previous rulings of this Court, and discussion of the first is therefore unnecessary: Dalton v. Laudahn, 30 Mich. 349; Marquette, H. & O. R. R. Co. v. Harlow, 37 Id. 554; Lookwood v. Thunder Bay R. Boom Co., 42 Id. 536. The facts stated are insufficient to support an implied assumpsit to pay rent, and there is no evidence in the case, either express or implied, of any relation of landlord and tenant between the plaintiff and defendant. No exception was necessary to be taken to the rendition of the judgment in the court below, to secure a review in this Court upon the errors assigned. The defendant’s plea and assignments of error sufficiently raise the question discussed before us, and upon which the case must be decided. The judgment must be reversed, and judgment entered for defendant, with costs. The other Justices concurred.