Massachusetts Supreme Judicial Court, 1878

Central Mills Co. v. Hart

Massachusetts Supreme Judicial Court · Decided March 1, 1878 · Ames

124 Mass. 123; 1878 Mass. LEXIS 248

Cases that cite this one

36 later published cases cite this decision. The 24 that cite it most often are listed here.

David J. Saltz v. Lucky Seven Moto-Stores, Inc. (Mass. Dist. Ct., App. Div. 1943)
Belizaire v. Furr (Mass. App. Ct. 2015)
Demers Bros. Trucking, Inc. v. Certain Underwriters at Lloyd's (District Court, D. Massachusetts 2009)
In re Application of Rosewell (Ill. App. Ct. 1979)
Cuddy v. Kipp (Mass. Dist. Ct., App. Div. 1973)
Bentley v. Palmer House Co. (7th Cir. 1964)
South Center Department Store, Inc. v. South Parkway Building Corp. (Ill. App. Ct. 1958)
Abrams v. Lezberg (Mass. Dist. Ct., App. Div. 1950)
Manning v. Drukman (Boston Municipal Court 1949)
Connors v. Wick (Mass. 1945)
Brown v. General Trading Co. (Mass. 1941)
Williams v. Seder (Mass. 1940)
Stern v. Lieberman (Mass. 1940)
Milmore v. Landau (Mass. 1940)
Gaertner v. Donnelly (Mass. 1936)
Moskow v. Fine (Mass. 1935)
Sordillo v. Fradkin (Mass. 1933)
Goldsmith v. Ricles (Mass. 1930)
Grasselli Dyestuff Corp. v. Campbell (Mass. 1927)
Lufkin v. Spiller (Mass. 1925)
Lennox v. Haskell (Mass. 1925)
Burke v. Willard (Mass. 1923)
Glickman v. Commonwealth (Mass. 1923)
Schwartzman v. Wilmington Stores Co. (Superior Court of Delaware 1922)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Ames, J.

In order to maintain assumpsit for the use and occupation of land, something in the nature of a demise must be shown, or some evidence given to establish the relation of landlord and tenant. That relation can only grow out of a contract, and it has accordingly been held that a contract, express or implied, is necessary in order to sustain assumpsit for use and occupation. Codman v. Jenkins, 14 Mass. 93, 95. Boston v. Binney, 11 Pick. 1. Merrill v. Bullock, 105 Mass. 486, 490. Bancroft v. Wardwell, 13 Johns. 489. Smith v. Stewart, 6 Johns. 46. The contract need not be technically formal, but there must at least be a permissive occupation by the tenant. Occupation by the tenant with the assent of the landlord is indispensable to the maintenance of the action. Wood v. Wilcox, 1 Denio, 37.

In the present case, it is not contended that there was any exclusive or continuous occupation by the defendants of the land or the tracks. .On the contrary, it appears that the plaintiff used the land, in connection with the track and its own freight-house, all the time covered by the declaration, although this use was seriously interfered with and made inconvenient by the use made of the land and track by these trustees and the persons who dealt with them. We must suppose that this use by the defendants was beneficial and convenient to them, but it does not appear to us such a legal or constructive possession of the premises as is implied in the term demise. Hamblett v. Bennett, 6 Allen, 140. If their entry upon and occasional or even frequent use of the land and track were by the permission of the plaintiff, the most that can be said would be that they had a mere license to use the land, which would be revocable at the pleasure of the plaintiff so long as it remained executory, and, until so countermanded, could only operate as an. excuse for a trespass

*126On the. other hand, if this use of the land by the defendants was not with the permission of the plaintiff, and was a matter of complaint and objection on its part, then it was a mere trespass, and not a demise. The relation of landlord and tenant in that case would have no existence between these parties. Smith v. Stewart, ubi supra. In either case, we see no ground on which the plaintiff can be entitled to recover in the present action.

Verdict set aside.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.