
    Boston & Worcester Railroad Corporation vs. Alpheus S. Ripley.
    the erection of a fence by a landlord in front of premises used and occupied by a tenant, in such a manner that the latter can only gain access to the premises by going over land of a third person, will not amount, as matter of law, to an eviction, provided the tenant still continues to use and occupy the premises; but such act of the landlord will affect ths amount which he is entitled to recover for such use and occupation.
    Contract brought to recover for the use and occupation of i piece of land on Castle Street in Boston.
    At the trial in the superior court, before Putnam, J., there was evidence tending to prove an implied contract between the parties for the use of the premises, though it was not contended that any specific sum was agreed to be paid therefor by the defendant. In 1861 the plaintiffs built a tight board fence along the line of Castle Street, so that the defendant had no access to the premises except by going over the land of a third person. The defendant however continued to occupy the premises for certain purposes. The judge gave instructions, which were not excepted to, in regard to the implied contract which was alleged to have been made; and declined to instruct the jury that the building of the fence, in the manner stated, would prevent the plaintiff’s recovery; and instructed them that if the defendant occupied the premises after the erection of the fence, and the fence did not prevent his use and occupation, but only affected his convenience of access, the plaintiffs might still recover, if the defendant held the premises under a contract express or implied, though it would affect the amount of damages which they would be entitled to recover.
    The jury found a verdict for the plaintiffs, and the defendant alleged exceptions.
    
      J. W. Rollins, for the defendant.
    
      G. S. Hale, for the plaintiffs, was not called upon.
   Bigelow, C. J.

The evidence did not warrant a finding that the defendant was evicted from the premises. On the contrary, it appeared that he continued to use and occupy them after the doing of the acts of the plaintiffs, which were relied on to prove an eviction. For this use and occupation he was liable in assumpsit for such sum as his beneficial enjoyment of the estob was worth. On this point the instructions were right. Fitch burg Cotton Manuf. Corp. v. Melven, 15 Mass. 268, 270. Morrison v. Chadwick, 7 C. B. 266, 283. 3 Cruise Dig. (Greenl ed.) tit. xxv iii. c. 3, § 1, note. Exceptions overruled.  