Newberg & Anderson v. Cowan

Cooper, J., delivered the opinion of the court. The rule that an action for use and occupation may be maintained on a contract expressed or implied, not under seal, has been held not to apply unless the occupancy was with the consent of the ownei’, upon the ground that such assent was necessary to the creation of an implied contract of tenancy. The object of § 1323 of the Code of 1880 is to give the right ip all cases where possession is held in recognition of and not adversely to the title of the owner, and it is not necessary that there should be an implied contract arising from the consent of the owner and the expectation of the occupant to pay. The statute fixes upon the occupant of the land of another an obligation to pay so much as is reasonable for the use thereof, whether the owner knows of or consents to such occupancy or not. But the measure of recovery is the “ reasonable satisfaction for the land, etc., held or occupied by the defendant,” and not what the peculiar circumstances of the occupant may make the land worth to him. One occupying the lands of another cannot- defeat a recovery by the owner by proving that if he had not occupied them they would have remained vacant, nor can the owner recover more than the “ reasonable satisfaction ” allowed by the statute,, because [573] to the occupant, situated as he was, the occupancy was worth more. It is evident that in the case at bar the inquiry was as to the value of the land to the occupant. All the evidence was directed to this point, and nothing was shown of the real value on the basis indicated. The judgment is reversed and the cause remanded far a new trial.