Rose v. Day ( 1886 )

Conger, J.

This was an action originally commenced before a Justice of the Peace to recover for the use and occupation of a small piece or strip of land, lying between the street in front of appellant’s store and the Mississippi River, used by the appellant as a landing or place from which to ship apples, and upon which he had wood" piled.

Day had had possession of the quarter section of land of which the premises in controversy formed a part for the past sixteen years, paying all taxes upon it and claiming the whole under a deed purporting to convey the same to him. This was sufficient evidence of title in Day until rebutted to sustain an action for use and occupation. Keith v. Keith, 104 Ill. 397.

The only question of difficulty arising upon the record, is whether, under the circumstances as shown, an action for use and occupation can be maintained. Ho express contract of renting is shown. All that the evidence shows is that appellant had used the premises for five years past, and that a reasonable rent would be $10 per year.

We are inclined to hold, under the authority of Oaks v. Oaks, 16 Ill. 106, that the jury might be warranted in inferring an implied agreement to pay rent. That case holds that, “ when it does not appear that a party is an intruder or trespasser on land, or that he holds it against the will of the owner, or that he is to enjoy the land without rent, the law will infer an implied agreement to pay a reasonable rent therefor.” The judgment of the Circuit Court will be affirmed.

Affirmed.