Landlord and Tenant. Contract, Implied in fact. At the trial of an action for use and occupation of land from an August 10 to the following November 8, it appeared that during that time a part of an ell of a building of the defendant stood upon land of the plaintiff, that on August 10 the plaintiff's attorney wrote to the defendant demanding an immediate removal of that portion of the ell and stating that, if the defendant desired to hire the land on which it stood, he might do so at $1 a day. The defendant replied stating that he felt that the plaintiff could not be harmed if the matter was allowed to stand until he had a chance to verify the claim, and requesting permission to go upon the plaintiff's land to remove the ell. On October 5 the plaintiff wrote to the defendant that thereafter the rental of the premises would be $2 a day and that continued occupation by the defendant would be considered as an acceptance of those terms. On the next day the defendant's attorney replied that the defendant denied the plaintiff's right to make the claim and that he had "taken steps to determine the interests of the parties." On the foregoing evidence there was a finding for the plaintiff at the rate of $1 a day. Held, that the finding was warranted, as it might be inferred from the defendant's conduct that he agreed to become a tenant at the rent of $1 a day, but that he did not acquiesce in the plaintiff's attempt to increase the rent during the tenancy.
DeCOURCY, J.
During the time covered by the declaration in these two actions, a portion of the ell of the defendant's house extended beyond his own lot and upon the adjoining land of the plaintiff. If this encroachment existed without the consent of the landowner the defendant would be a trespasser; and his occupation, even by her permission, would be only that of a mere licensee unless he was there as her tenant. The judge of the Superior Court, in finding for the plaintiff, necessarily must have found that the use and occupation by the defendant was with the permission of the plaintiff and under a contract, express or implied, that created between them the relation of landlord and tenant. Central Mills Co. v. Hart, 124 Mass. 123.
The sole question raised by the exceptions is whether on all the evidence it should have been ruled that the plaintiff was not entitled to recover. Although no express contract of tenancy was shown, we cannot say as matter of law that the trial judge was not warranted in inferring such an agreement from the conduct of the parties. In her letter of August 10, 1909, the plaintiff offered to let to the defendant, as tenant at will, the land upon which the ell of the building stood, and it could be found that this offer remained open until after the period for which rent is now demanded. Although the defendant's reply of August 12 was somewhat ambiguous, it certainly did not decline this offer; and neither then nor later did he claim any right to occupy the land without the plaintiff's consent. The judge well might infer from the defendant's conduct that he assented to the plaintiff's proposition, that under the contract so created he continued to occupy the premises as tenant at the rental of $1 a day, and that he did not acquiesce in the plaintiff's attempt to increase the rent during the tenancy.
Exceptions overruled.