Jones v. Donnelly

221 Mass. 213

• Court: Massachusetts Supreme Judicial Court
• Decided: May 20, 1915
• Status: Published

Opinion

Carroll, J.

The plaintiff sues for the use and occupation of a roof used for advertising purposes, and her right to recover in this form of action depends upon whether the relation of landlord and tenant existed between herself and the defendant. Central Mills Co. v. Hart, 124 Mass. 123. Kirchgassner v. Rodick, 170 Mass. 543. Rogers v. Coy, 164 Mass. 391. Keener on Quasi-Contracts, 191,192.

If the defendant at the termination of his contract with the plaintiff’s mother became a tenant at will, as argued by the plaintiff, and was such when Mary E. R. Jones, the mother, conveyed the real estate in question to the plaintiff, and the defendant thereby ceased to be a tenant at will and became a tenant at sufferance, even then the plaintiff is not entitled to recover, for the reason that a tenant at sufferance under these circumstances is not liable for rent until he has had notice of the transfer; and from the record it appears that no such notice was ever given him. Dixon v. Smith, 181 Mass. 218.

In the written contracts of 1896 and 1899 between the defendant and the plaintiff’s mother, who was then the owner of the premises, it is agreed “to let to John Donnelly and Sons . . . the location of roof 309 Tremont St Fence to be forty feet long for one year . . . the same to be used for the purpose of fence bill posting and general advertising, and to continue as long as one year said location is used for advertising purposes.” The fence to remain the property of the defendant, who was “to assume all liabilities that may be caused by erection of said fence.” It was further agreed that nothing objectionable should be painted on the signs and that the defendant should construct a plank walk on the roof, which was to remain the property of Mary E. R. Jones.

This agreement did not give to the defendant the exclusive possession of the roof. The possession of it was retained by the owner of the premises and she had the right to use it and occupy it for all purposes not inconsistent with the terms of the contract. She remained liable to travellers on the highway for injuries caused by negligence in the care of the roof, to the same extent as any other landlord is liable, who retains the possession and control of the premises. The defendant had merely a right or privilege to occupy the roof, under the owner, and he was therefore not a tenant, but a licensee.

In Lowell v. Strahan, 145 Mass. 1, where an agreement was made for an annual payment, allowing a sign to remain on the outside wall of a building, it was construed to be a license and not a lease, and in the opinion of the court W. Allen, J., uses this language: “It was permission to do a particular act, namely, to affix a sign to the wall, and gave no authority to do any other act upon the premises. . . . Every license to do an act upon land involves the exclusive occupation of the land by the licensee, so far as is necessary to do the act, and no further. A lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms.” The relation of the defendant to the owner would be the same under the agreement before us, if instead of giving him the right to maintain a sign on the roof, it gave him the right to use the entire outside wall of the premises for that purpose. In either case he could not exclude the landowner from the premises as a tenant could in whom the exclusive possession remains during the term of the tenancy.

Nor is the word “let” in the agreement of controlling significance. We speak of letting quarters to a lodger when the lodger is merely a licensee and not a tenant, White v. Maynard, 111 Mass. 250; or letting a hall on certain days, Johnson v. Wilkinson, 139 Mass. 3; Oxford v. Leathe, 165 Mass. 254; or receiving “rent” when the owner of a bar room gives to another the right to carry on a'restaurant on the premises, DeMontague v. Bacharach, 181 Mass. 256; or letting a specified place in a stable for the keeping of a horse and vehicle, Congregation Beth Israel v. O’Connell, 187 Mass. 236; or leasing a location in a department store for the sale of music, R. H. White Co. v. Remick & Co. 198 Mass. 41.

The written agreements of 1896 and 1899 were nothing more than permits or licenses by the owner of the building to the defendant, to go upon the roof and construct the fence or sign to be used for advertising purposes. These agreements conveyed no title or interest in the building or in any part of it. The dominion, control and possession of the estate were not given up by the landowner, and the rights of the parties were derived entirely from the written contract and are governed thereby. Reynolds v. Van Beuren, 155 N. Y. 120. Roberts v. Lynn Ice Co. 187 Mass. 402.

There being no relation of landlord and tenant subsisting between the parties or between the defendant and the plaintiff’s mother, the former owner, the count for the use and occupation will not lie and the plaintiff cannot recover in this form of action.

As these exceptions must be sustained, we do not consider the requests of the defendant relating to other aspects of the case; nor do we consider what other remedy, if any, the plaintiff has against the defendant.

Exceptions sustained.