Mason v. Holt , 83 Mass. 45 ( 1861 )

Hoar, J.

The plaintiff had no title to the close, except his possession under the agreement with the defendant. The defendant was admitted to be the owner of the close adjoining the highway, under a deed “ bounding him upon the highway ”; and thereupon claimed, that, having the legal title to the locus, he had shown a better title than the plaintiff. But the court ruled that this would not constitute a defence to the action. We must assume therefore— as the deed on which the defendant relied might certainly, and ordinarily would, include the close in controversy; and as the court did not pass upon the sufficiency of the deed, and it is not before us for construction — that the defendant had the better title. Newhall v. Ireson, 8 Cush. 595.

We are then to see upon what right the plaintiff’s action, which is tort for breaking and entering the close, can be supported. That the chairman of the selectmen of the town could give him no authority to occupy a part of a public highway is too plain to need any discussion. His only right was obviously that which he acquired from the defendant. In regard to this, there was a difference in the evidence. If that offered by the plaintiff were true, we should incline to think that the permission to place the building on the defendant’s land, without any time limited, and without any payment of rent or other valuable consideration, would amount to no more than a mere license, revocable at the defendant’s pleasure, and actually revoked by him. But if the defendant’s evidence were correct, and the agreement by paroi that the plaintiff might occupy the land for six months made him a tenant at will, then the tenancy at will had expired by its own limitation ; the plaintiff had no right to hold possession after that time; and the only other facts proved were repeated notices from the defendant to remove, and a promise by the plaintiff to do so as soon as he could get another location. There was no evidence that we can perceive of any agreement or permission from the defendant that he should remain after the six months. If there were any, it would be for the jury, and they have not passed upon it.

The plaintiff, then, at the expiration of the six months, became a tenant at sufferance, and had no title upon which he could maintain this action. Hollis v. Pool, 3 Met. 350. Creech v. Crockett, 5 Cush. 133. Howard v. Merriam, 5 Cush. 583. Hatstat v. Packard, 7 Cush. 246. Meader v. Stone, 7 Met. 151.

It follows that the verdict for the plaintiff must be set aside, and a new trial granted. Exceptions sustained.