
    Mitchell & Rowland v. Anne J. Pendleton.
    Where a parcel of land is occupied by a person not the owner, in such man ner and under such circumstances that a contract to pay rent cannot, in law, be implied, rent for such occupancy cannot be recovered, in the absence of an express contract to pay it.
    Error to the superior court of Cincinnati.
    In the court below Anne J. Pendleton brought an action against Mitchell & Eowland for the recovery of rent. The liability was denied. And on the trial, a jury having been waived, the court, having been requested to make a special finding of the facts, separate from the questions of law, found the following to be all the material facts of the case :
    1. Prior to the first day of February, 1857, the defendants were in possession of a lot of land, 99 feet front on Yine street, in Cincinnati, and extending, the same width, through to Walnut street, under a lease from N. G. Pendleton, who was then the owner of the land; and had placed fences both on the Yine street and on the Walnut street ends of the lot.
    2. When the lease expired, on the first day of February, 1857, the defendants obtained a new lease for ten years from N. G. Pendleton, still the owner of the lot, for so much of the same as extended from Yine street to within 150 feet of Walnut street, with verbal permission to use the remainder of the lot originally leased without paying rent, until notified to vacate it; and they did use it as part of their lumber-yard, and piled boards upon it, and left their fence on the Walnut street end of it, and put no fence between the land leased by them and the remainder of the lot.
    3. On the first day of June, 1861, Anne J. Pendleton, the plaintiff, became, as the widow and devisee of N. G. Pendleton, then deceased, the owner of all the land originally leased to the defendants, subject to the lease Iasi referred to.
    
      4. In November, 1865, the plaintiff, through her agents, notified the defendants to vacate the land not embraced within their lease, because she wished to put the property under lease; and also notified them- that if they continued to occupy these premises after the first day of December, 1865, they would be charged rent at the rate of $150 for each quarter year, and that their tenancy would be from quarter to quarter.
    5. Immediately after the service of this notice, the defendants called upon the agents of the plaintiff, and notified them that they did not want the property not embraced in their lease; and offered to take down the fence on the Walnut street end of the lot, and move it back to the line of the lot held under the last lease; and asked for a little time to remove their piles of lumber. And the plaintiff’s agents granted to the defendants the time which they requested; and requested them not to move the fence, because the lot, if left unfenced, would be likely to become a nuisance.
    6. In a short time after this conversation the defendants moved all their lumber from the land not embraced in their lease, and ceased to occupy it. But, as the land not leased to them was not rented nor occupied, they afterwards drove their teams, hauling lumber over this land, and habitually threw lumber off their wagons on to this land, and let it lie there, and in that way occupied the land; but they made no piles of boards on the land. They also, when applied to by carpenters who bought lumber of them, for permission to frame houses on this land, told such applicants that they could do so if they chose; but that they, the defendants, had no rights there, and that the persons so using this land would be liable to be turned off at any time. And such carpenters did so use the land.
    7. From the first day of June, 1861, till the expiration of the defendants’ last lease, on the first day of February, 1867, the plaintiff, through her agents, regularly collected from the defendants the quarter yearly installments of rent under that lease.
    8. After the expiration of that lease, the plaintiff, for the first time, presented a claim for rent of the land not embraced in the lease to the defendants.
    9. At the expiration of their lease, the defendants vacated all the land of the plaintiff, and moved to another location.
    10. The rental.value of the plaintiff’s land, not embraced in the last lease to the defendants, was $700 for the time during which it was occupied, on a tenancy from quarter to quarter.
    On the facts as thus found, the court decided, as matter of law, that the plaintiff was entitled to recover; and overruled a motion for a new trial, and rendered judgment in favor of the plaintiff; to all which exceptions were taken.
    
      Thos. G Mitchell, for plaintiffs in error.
    
      Stanley Matthews for defendant in error:
    Taylor on Landlord and Tenant, § 655.
   By the Court :

We are of opinion that the court below erred in holding, as matter of law, that the plaintiff was entitled to recover on the facts found. There was no express contract to pay rent for the land not embraced in the last lease; and we think none can be implied from the facts of the case, but, rather, that such implication is negatived by the conduct of both parties.

Judgment reversed.  