Bonney v. Foss , 62 Me. 248 ( 1873 )

Appleton, C. J.

This is an action of assumpsit to recover the rent of a strip of land three feet and two and a half inches wide in front, three feet eight inches in the rear, and fifty feet deep, with a segment of a building of the same dimensions standing on it, two stories high with no partition between this segment and the other portions of the building.

It seems that the plaintiff and one Morrill were adjacent owners; that a dispute as to boundaries arose between them; that the plaintiff brought a writ of entry in which he recovered the strip of land above described; that the defendant, who claims title under Morrill, commenced digging a cellar upon this strip; that the plaintiff notified him that the digging was upon his land; that the defendant refused to desist; that thereupon the plaintiff commenced the suit before referred to; that the defendant proceeded and erected his building while the suit was pending ; that after recovery of judgment the plaintiff commenced an action for mesne profits in which he was not successful, for the reasons stated in 57 Maine, 369; that after the opinion of the court in the first named suit was announced, the plaintiff and defendant and wife entered into an agreement, by which rent was to be paid for three years for the land and so much of said building as was the plaintiff’s property and was standing on his land, with the right of the defendant and wife to remove so much of the building as stood on the plaintiff’s land at their own expense, and for their own use and benefit at any time during the three years, and not afterward without the plaintiff’s consent. Bonney v. Morrill, 52 Maine, 252, and 57 Maine, 369.

The defendant occupied the premises for the term specified and paid the stipulated rent. This action is for rent accruing since the expiration of the term.

' The tenant has remained in occupation of the building after the termination of the lease as he was before. He has given no notice to the plaintiff that he intended to terminate such occupation. He has not surrendered the premises nor has he been evicted by a paramount title. Remaining in possession as heretofore, his tenancy must be regarded as continuing and he is liable for rent. Longfellow v. Longfellow, 54 Maine, 240, and 61 Maine, 590; Towne v. Butterfield, 97 Mass., 105. The tenant is estopped to deny the title of his landlord.

The tenant objects to the payment of any rent for the portion of his store erected by him, and standing upon the plaintiff’s land. The defendant was seasonably notified of the plaintiff’s title. He refused to yield to the claim, well knowing its existence. He persisted, notwithstanding this notice, in proceeding to erect his store. He has acquired no rights by adverse possession, nor by permission of the plaintiff. The erection of the ^building under the circumstances, was a plain violation of the plaintiff’s rights, and the tenant must abide "the legal consequences of his tortious acts.

If one builds with his own materials on the land of another, without and against the consent of the latter, the house belongs to the owner of the soil; for in this case, the builder is presumed intentionally to have transferred his property in the materials to the owner of the soil. Broom’s Legal Maxims, 296. ■ Buildings erected on the land of another, voluntarily, and without any contract with the owner, become part of the real estate and belong to the owner of the soil. Washburn v. Sproat, 16 Mass., 449; Pierce v. Goddard, 22 Pick., 559; First Parish in Sudbury v. Jones, 8 Cush., 189. The general rule is that whatever is affixed to the realty is thereby made parcel thereof, and belongs to the owner of the soil. The tenant brings himself within none of the exceptions to the general rule. Such is the rule of the civil law as stated by Gaius in his commentaries, Lib. 11, § 73; “Praeterea, id quod in solo nostro ab aliquo aedificatum est, quamvis Ule suo nomine aedificaverit, jure naturali nostrum fit, quia superficies solo cedit.” Again, a building erected on my soil, though in the name and for the use of the builder, belongs to me ; for the ownership of a superstructure follows the ownership of the soil.

The tenant has no right to the building, as a fixture which is removable. He was a trespasser in its erection. He has no betterment rights. He has acknowledged the title of the plaintiff. He has neglected to remove the building in accordance with the license given him. It has become the property of the plaintiff, and its value must be considered in estimating the plaintiff’s rent.

The plaintiff having recovered judgment against Morrill, whose title the defendant has subsequently acquired, the latter can be in no better situation than his grantor. As Morrill would, by the judgment against him, be precluded from asserting any property in the building, so equally is his grantee. Dock v. Wiswell, 33 Maine, 355. . Judgment for the plaintiff.

Damages to be assessed at Nisi Prius.

Cutting, Dickerson, Barrows, Daneorth and Yirgin, JJ., concurred.