De Pere Co. v. Reynen

27 N.W. 155, 65 Wis. 271, 1886 Wisc. LEXIS 226

• Court: Wisconsin Supreme Court
• Decided: February 23, 1886
• Status: Published

Opinions

The following opinion was filed March 31, 1885:

Lyou, J.

Unless the relation of landlord and tenant existed between these parties there can be no recovery in this action. This proposition is elementary. It is not claimed that the defendants hold the property by virtue of any express lease thereof to them, and there is no proof worthy of consideration, or any finding, that they ever recognized the plaintiff as their landlord, paid rent to it, or in’ any manner admitted its ownership of any of the property for which rents are claimed in this action. Hence, if they are tenants to the plaintiff, they are so only because they hold the property under mesne conveyances from Barrows, who was once its tenant. Upon this ground, and this alone, the circuit court held that the defendants were such tenants.

To uphold this ruling it is maintained by the learned counsel for the plaintiff that when the relation of landlord and tenant is once established, it attaches to all who may succeed to the possession through or under the tenant, either immediately or remotely; that the defendants, by the conveyance to one of them by the grantees of Barrows, under which they hold possession, became in law the assignees of the lease; and that though a purchaser take of a lessee, and in fact enter upon the premises under an absolute conveyance in fee, yet in judgment of law he enters as tenant of the lessor. Numerous cases are cited to these propositions, but for reasons which will now be stated it is unnecessary to review them, or to pass upon the propositions of law to which they are cited.

The lease to Barrows, under which the plaintiff seeks to bind the defendants as its tenants, expired by its terms, April 4, 1871. The Wilcox mill was then owned by the immediate grantors of one of the defendants, who held under the deed from the assignee in bankruptcy of Ellwood Loy, and under the sale upon the foreclosure of the mortgage thereon executed by D. M. Loy to Jordan. Such grantors did not use the mill or any of the property so held by them. Of course, they used no water from the waterpower, not even that which it is conceded they owned. Such was the situation of the property when the lease in question expired. Such, also, had been its situation from September, 1870, and so it remained until after the conveyance thereof to the defendants, January 16, 1873, — more than twenty-one months later. This was as complete a surrender of the water-right mentioned in the lease of 1861 as the nature of the property admitted of. The only practical surrender that could be made was to cease using the water at the expiration of the lease, thus leaving the same as part and parcel of the plaintiff’s water-power, to be used and appropriated by it as it might see fit. More than six sevenths of tbe amount of the judgment was for rent of this water-right.

.The dock lot was not included in the conveyance to the defendants’ immediate grantors, and they never took possession of it or exercised any control over it. So when Barrows’ lease expired, in 1811, such grantors were not tenants of that lot. The lot was then unoccupied, and continued so until after one of the defendants purchased the mill.

As to the piling-ground, the evidence shows that in 1851 the administrator of the estate of Cox conveyed it to Law-ton, the grantor of the plaintiff. This deed was not recorded until November 30, 1858. On the 29th of the same November, the administrator conveyed the piling-ground to Barrows, with the mill and water-right. It does not appear when this conveyance was recorded, or who was in possession of the piling-ground when it was executed, or whether-Barrows had notice of the deed of 1854. The immediate grantors of the defendants take their title under the deed to Barrows. Whether they are the owners of this piling-ground, or whether the plaintiff is the owner thereof, cannot be ascertained from the evidence, and cannot properly be determined in this action for use and occupation.

Unless the plaintiff can maintain its title to the piling-ground under the deed of 18.54, it cannot maintain it at all .as against the immediate grantors of the defendants; for when they took and recorded their deeds they had no notice, actual or constructive, of the conveyance thereof by Barrows to the plaintiff in 1861. True, the latter deed was recorded, but it was not entitled to record, because attested • by but one witness, and the record did not operate as con-' structive notice to any one.

The grantors of the defendants took their conveyance of the piling-ground without any knowledge whatever that there was any outstanding lease upon it, and manifestly they went into possession thereof as purchasers under such conveyance, claiming the absolute title thereto, and not as mere tenants. There can be no rule of law which, under such circumstances, will place them in the position of tenants acknowledging the title of the plaintiff, and liable to pay rent for the use of property which they bought and paid for and believed they owned.

We have, therefore, this state of facts: (1) The persons who occupied the property in 1871, when the Barrows lease expired by its terms, were in possession thereof, claiming absolute title under a conveyance executed by Barrows and under mesne conveyances by his grantees to them, without any notice, actual or constructive, that Barrows had previously conveyed the piling-ground to the plaintiff, or had taken a lease thereof. (2) They never took possession of the dock lot, and claimed no interest therein. (3) They used no water from the plaintiff’s water-power, and asserted no right to the use of any water beyond that which they indisputably owned and afterwards conveyed to the defendants, or one of them. Thus, the alleged excess of water mentioned in the Barrows lease of 1861, was, at the expiration of the term specified in such lease, practically surrendered to and placed under the control of the plaintiff.

The foregoing facts and considerations lead our minds to the conclusion that the lease of 1861 had fully terminated, and ceased to have any force and effect as a lease, long before the defendants went into possession of any of the property which it is claimed they occupy as tenants of the plaintiff under such lease. It necessarily follows that the relation of landlord and tenant does not exist between the parties in respect to such property, and this action for the use and occupation thereof cannot be maintained.

If the defendants have used more water than they or either of them own, or if they do not own the piling-ground and have used it, or have used the dock lot, they are mere trespassers .or wrong-doers. If the plaintiff is the owner of such property, the law affords it ample remedies for such wrongs, but the action for use and occupation is not one of those remedies.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to enter judgment for the defendants.