Smith v. Pierce , 110 Mass. 35 ( 1872 )

Wells, J.

The case of McLeod v. Jones, 105 Mass. 403, decides that title to personal property and right of present possession do not alone, as matter of law, confer a legal right or license to enter the close of another for the purpose of taking possession and removing it.

So far as the court, in this case, adopted the second proposition of the defendant’s prayers, the instructions were too favorable to him. A hiring of personal property does not of itself confer upon the bailor a license to enter the premises of' the bailee to retake it, upon the termination of the bailment in any mode. Without proof of the terms and circumstances of the bailment, non con-stat that such was the contract of the parties; and if not to be derived from their contract, a license would not result from wrongful conduct, such as is suggested in the defendant’s proposition.

But adopting this proposition, as the court appears to have done, the license so given could not be revoked; and the defendant would not become a trespasser, after being admitted into the house, by remaining for the purpose of removing the piano, although opposed ; nor by proceeding, without violence, to another room and removing the piano, although forbidden to do so.

It is not clear, from the exceptions, whether the modifications, with which the court gave the instructions prayed for, were intended to apply to them all, or only to the last one. Apparently the judge had in mind only the permission to enter, given by the person in charge of the house, who admitted the defendant. If it was intended or understood that the second proposition of the defendant’s prayers was to be so modified, then the instructions were erroneous in that respect.

We do not decide the case upon this point, it being sufficient to indicate the distinction; as a new trial will be necessary on account of the other instruction. That instruction is as follows: “ If the defendant made an entry into the plaintiff’s house, permitted or unopposed, and, having thus entered, did acts in relation to personal property therein, which were wrongful, and were opposed by the person in keeping of the house, he was a trespasser upon the house.”

This proposition is applicable only to an authority or license given by law. One who abuses a license by contract or permission of the owner of land, by taking advantage of it to do some wrongful act to personal property, does not thereby become a trespasser ah initia. Applied to this case, the instruction is wrong. The action is for trespass to the close, and not for a tort in respect to personal property. Exceptions sustained.