
    Marquette, Houghton & Ontonagon Railroad Co. v. Olive L. Harlow.
    Error to Marquette.
    Submitted Oct. 31.
    Decided Nov 1.
    Assumpsit by Mrs. Harlow for rent for the use and occupation of land by her permission, as alleged in the declaration. The evidence, however, did not show that there was any agreement between the parties for rent, but only that the-defendants had taken possession without the plaintiff’s consent, and that the plaintiff had not openly asserted her rights in the premises as against them. Plaintiff recovered and defendant brought error.
    
      W. P. Healy and Hoyt Post, for plaintiff in error,, stopped by the Court.
    It is trespass for a railroad company to enter upon land even where the owner knows it,. Walker v. C., R. I. & P. R. R. Co., 57 Mo., 275; Peters v. Elkins, 14’ Ohio, 346. A contract cannot arise by implication of law under circumstances the occurrence of which neither of the parties ever contemplated, Carpenter v. United States, 17 Wal., 495; Wilmarth v. Palmer, 34 Mich., 347.
    
      F. O. Olarlc (on brief) for defendant in error.
    One-can waive the tort and sue in assumpsit in case of a trespass upon land, Welch v. Bagg, 12 Mich. 44; Fiquet v. Allison, Id., 328. Act 165 of 1875. Where two parties; claim rights in the same land, there cannot be an implied contract between them that one shall pay rent to the other,. Ward v. Warner, 8 Mich., 508; but where the owner of land acquiesces in another’s possession of it, there is an-, implied understanding that the latter shall pay what the-use of the land is reasonably worth, Dwight v. Cutler, 3 Mich., 574; Hogsett v. Ellis, 17 Mich., 371.
   Per Curiam.

This case comes within the principle of the case of the same plaintiffs in error against Amos R. Harlow.

The judgment must be reversed with costs, and a new-trial granted.  