Martin Ch. J.:
The first question presented, and which disposes of this case, is whether, upon the facts, assumpsit will lie, or whether the plaintiff’s remedy, if he have any, be not trespass.
Whenever a benefit accrues to a party, whether for services rendered, money expended, or property used, or from any other cause, upon which a duty to make compensation to another arises, the law will, in the absence of an express promise to make such compensation, imply one from the transaction and the duty. Thus if A performs labor or renders services for B, at the latter’s request, or with his knowledge and assent, but without a contract for compensation, the law will imply a promise by B to pay A therefor what such labor or services shall be reasonably worth. So when the goods of A have been wrongfully taken or held by B, and sold, although the act of B in taking them, or in their conversion, may have been tortious, yet as he has sold them, and received a benefit from such conversion, A may waive the tort, and bring assumpsit for the price for which they were sold. So when a party enters upon land under a contract to purchase it, which is not performed, and such party is, after such failure of performance, notified that, if he remains in possession, he will be required to pay rent; if he remain, the law will imply a promise to pay rent from the time of such notice. But in the latter case, there can be no promise implied to pay rent for the occupation while the contract was in force, because no payment of rent could, during that time, have been in the contemplation of either party, and no such duty existed. And [520]*520where one has the clear right to • the use and control of property, and permits its use by others, upon condition of payment therefor, when the condition is specific in terms the law will imply from the use by one having knowledge of the terms an assent to them, and a corresponding promise to pay; and when not known, a promise of reasonable compensation. In the first case, the implication is founded upon the knowledge of the terms and conditions of the use, and in the latter upon the duty arising from the use; but in neither will it be made, when the party using it asserts adverse rights, and acquires and uses the property under an adverse claim of right. These are principles which, notwithstanding the diversity of opinion upon kindred questions, are clearly settled and recognized. But we are not aware of any principle upon which it can be held, that a mere naked trespass'can be made the basis of an implied assumpsit. If the trespass be proved, no presumption of an agreement for compensation can be raised; for the act of an- entry upon lands is in contravention of, and not in subordination to, the rights and claims of the party injured. For such injury the law has given a different remedy; and one founded upon the injury; and no promise can be implied to pay, but a liability arises to compensate for the wrong and injury.
It was said in Hosmer v. Wilson, 7 Mich. 294, that the liability, in cases of implied promises, is founded upon a duty which the law imposes upon the party receiving the benefit, to pay; and that this duty the law enforces under the fiction of an implied contract; and Martin B. in Clay v. Yates, 36 E. L. & E. 546, in speaking of the liability, says: “I should say the duty of the man to pay arises out of the transaction itself; and think this, is a more correct expression than talking of an implied contract, when a contract was never made.”
If, therefore, the plaintiff has a right to require com[521]*521pensation for the nse of his canal prior to the notice of June 1st, from the simple fact that the defendants have used it, then a duty arises upon their part to pay such compensation, and the law will imply a promise tb pay: but if he has no such right, no duty to pay arises from the assertion of such right, or from the fact of the use. Now the canal, upon the ease presented, was clearly a private way. It is true that it was dug by contribution, and was for a time thrown open to all passers; and perhaps still is, to those who contributed towards its construction, or those who have since contributed towards, keeping it in repair. But it was nevertheless upon the land of the plaintiff. No evidence exists, tending to show that the waters of Mill Creek ever ran along its" line, or that it was the improvement of an existing water channel. Indeed, the contrary is evidently the case; and the fact that it was dug through a marsh (the land belonging to-the plaintiff) in which the creek was lost, does not render it a part of the stream, so as to confer upon the public any rights of way along it.
It exists, then, as a way or passage, opened by the plaintiff, and which he might dedicate to the public, or reserve for his private use at his option. Whether those who joined with him in its construction have or have not the right of passage along it, or what their rights may be, are questions not before us; but so 'far, at least, as all others are concerned, no .such right exists; for no dedication to the public is shown; nothing more than a sufferance of its use, which he might revoke at any time. For its use, while this permission existed, he had no right to demand compensation, nor will the law raise a duty to pay it.
But he had a right to require payment or compensation, before he would at any time suffer its use by individuals upon whom the right had not been specially conferred; and in such ease, those using it would be liable [522]*522to pay therefor according to the terms imposed, if assented to, or if used under circumstances from which the law would imply assent. In Wadsworth's administrator v. Smith, 11 Me. 278, which was assumpsit on an account for slij^ping logs along a stream which had been made floatable for logs and lumber by the application of artificial means at the expense of the owner, while the right to exact toll was questioned, it was held that a proprietor may open a passage through his land for his own accommodation, and he may permit others to psss it under an agreement for compensation which may be enforced at law. “He may yield the enjoyment to one and refuse it to another. If he receives compensation for such enjoyment, the law will permit him to retain it; if he accept a promise as an equivalent, the law will enforce it, and a promise may as well be implied in such a case as in any other.”
The plaintiff, therefore, having, until the giving of the notice of June 1st, suffered the public to pass along his canal without objection, or making any demand for compensation, must be confined to his claim upon such use of the canal as occurred after such notice.
For the purpose of a revocation of the general license, and a declaration that compensation would thereafter be demanded, the notice, having come to the knowledge of the defendants, was sufficient and competent to impose upon them a liability to pay for its use, according to the terms of the notice, if subsequently used, had the right to demand any compensation been acknowledged, or reeog-nized and not denied; for in such case the law will presume that they used it upon the terms imposed,' and raise the corresponding duty, and imply the contract accordingly. But in the present case, all such implication is precluded by the fact that the defendants denied any right to demand compensation for the ¡ use, and used it in defiance of the plaintiff’s claim, and under claim of right in [523]*523themselves; and they can not therefore be presumed to have acceded to the terms imposed.
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Martin Ch. J.:
The first question presented, and which disposes of this case, is whether, upon the facts, assumpsit will lie, or whether the plaintiff’s remedy, if he have any, be not trespass.
Whenever a benefit accrues to a party, whether for services rendered, money expended, or property used, or from any other cause, upon which a duty to make compensation to another arises, the law will, in the absence of an express promise to make such compensation, imply one from the transaction and the duty. Thus if A performs labor or renders services for B, at the latter’s request, or with his knowledge and assent, but without a contract for compensation, the law will imply a promise by B to pay A therefor what such labor or services shall be reasonably worth. So when the goods of A have been wrongfully taken or held by B, and sold, although the act of B in taking them, or in their conversion, may have been tortious, yet as he has sold them, and received a benefit from such conversion, A may waive the tort, and bring assumpsit for the price for which they were sold. So when a party enters upon land under a contract to purchase it, which is not performed, and such party is, after such failure of performance, notified that, if he remains in possession, he will be required to pay rent; if he remain, the law will imply a promise to pay rent from the time of such notice. But in the latter case, there can be no promise implied to pay rent for the occupation while the contract was in force, because no payment of rent could, during that time, have been in the contemplation of either party, and no such duty existed. And [520]*520where one has the clear right to • the use and control of property, and permits its use by others, upon condition of payment therefor, when the condition is specific in terms the law will imply from the use by one having knowledge of the terms an assent to them, and a corresponding promise to pay; and when not known, a promise of reasonable compensation. In the first case, the implication is founded upon the knowledge of the terms and conditions of the use, and in the latter upon the duty arising from the use; but in neither will it be made, when the party using it asserts adverse rights, and acquires and uses the property under an adverse claim of right. These are principles which, notwithstanding the diversity of opinion upon kindred questions, are clearly settled and recognized. But we are not aware of any principle upon which it can be held, that a mere naked trespass'can be made the basis of an implied assumpsit. If the trespass be proved, no presumption of an agreement for compensation can be raised; for the act of an- entry upon lands is in contravention of, and not in subordination to, the rights and claims of the party injured. For such injury the law has given a different remedy; and one founded upon the injury; and no promise can be implied to pay, but a liability arises to compensate for the wrong and injury.
It was said in Hosmer v. Wilson, 7 Mich. 294, that the liability, in cases of implied promises, is founded upon a duty which the law imposes upon the party receiving the benefit, to pay; and that this duty the law enforces under the fiction of an implied contract; and Martin B. in Clay v. Yates, 36 E. L. & E. 546, in speaking of the liability, says: “I should say the duty of the man to pay arises out of the transaction itself; and think this, is a more correct expression than talking of an implied contract, when a contract was never made.”
If, therefore, the plaintiff has a right to require com[521]*521pensation for the nse of his canal prior to the notice of June 1st, from the simple fact that the defendants have used it, then a duty arises upon their part to pay such compensation, and the law will imply a promise tb pay: but if he has no such right, no duty to pay arises from the assertion of such right, or from the fact of the use. Now the canal, upon the ease presented, was clearly a private way. It is true that it was dug by contribution, and was for a time thrown open to all passers; and perhaps still is, to those who contributed towards its construction, or those who have since contributed towards, keeping it in repair. But it was nevertheless upon the land of the plaintiff. No evidence exists, tending to show that the waters of Mill Creek ever ran along its" line, or that it was the improvement of an existing water channel. Indeed, the contrary is evidently the case; and the fact that it was dug through a marsh (the land belonging to-the plaintiff) in which the creek was lost, does not render it a part of the stream, so as to confer upon the public any rights of way along it.
It exists, then, as a way or passage, opened by the plaintiff, and which he might dedicate to the public, or reserve for his private use at his option. Whether those who joined with him in its construction have or have not the right of passage along it, or what their rights may be, are questions not before us; but so 'far, at least, as all others are concerned, no .such right exists; for no dedication to the public is shown; nothing more than a sufferance of its use, which he might revoke at any time. For its use, while this permission existed, he had no right to demand compensation, nor will the law raise a duty to pay it.
But he had a right to require payment or compensation, before he would at any time suffer its use by individuals upon whom the right had not been specially conferred; and in such ease, those using it would be liable [522]*522to pay therefor according to the terms imposed, if assented to, or if used under circumstances from which the law would imply assent. In Wadsworth's administrator v. Smith, 11 Me. 278, which was assumpsit on an account for slij^ping logs along a stream which had been made floatable for logs and lumber by the application of artificial means at the expense of the owner, while the right to exact toll was questioned, it was held that a proprietor may open a passage through his land for his own accommodation, and he may permit others to psss it under an agreement for compensation which may be enforced at law. “He may yield the enjoyment to one and refuse it to another. If he receives compensation for such enjoyment, the law will permit him to retain it; if he accept a promise as an equivalent, the law will enforce it, and a promise may as well be implied in such a case as in any other.”
The plaintiff, therefore, having, until the giving of the notice of June 1st, suffered the public to pass along his canal without objection, or making any demand for compensation, must be confined to his claim upon such use of the canal as occurred after such notice.
For the purpose of a revocation of the general license, and a declaration that compensation would thereafter be demanded, the notice, having come to the knowledge of the defendants, was sufficient and competent to impose upon them a liability to pay for its use, according to the terms of the notice, if subsequently used, had the right to demand any compensation been acknowledged, or reeog-nized and not denied; for in such case the law will presume that they used it upon the terms imposed,' and raise the corresponding duty, and imply the contract accordingly. But in the present case, all such implication is precluded by the fact that the defendants denied any right to demand compensation for the ¡ use, and used it in defiance of the plaintiff’s claim, and under claim of right in [523]*523themselves; and they can not therefore be presumed to have acceded to the terms imposed.
If, then, any duty can be implied, it is to pay what such use is reasonably worth. Now, as already remarked, the plaintiff had a right to require payment, as a condition to the use of the canal; and had he required such, but fixed no price, and the defendants had used it with knowledge of such terms, and under the condition, beyond doubt the duty would be raised to pay what such use would be reasonably worth; but if the effect of a denial of the right to demand compensation, and a use of the canal in contravention of the claims asserted by the plaintiff, will prevent the implication of a duty to pay a specific rate imposed, how can it be said that it will still raise the duty of paying according to its worth? If the denial goes to anything, it must go to the whole claim of the plaintiff for compensation, and will preclude every presumption of the recognition of a duty upon which a contract can be implied; while, on the other hand, if the law will imply a duty, it will imply one co-extensive with the terms im. posed. It goes to the whole remedy, whether for a specific price, or for reasonable compensation. But the law implies the duty only where the right of dominion over the subject matter is conceded, or not questioned; and never where the use is under an adverse claim of right, or a denial of that asserted. In such case, the entry, being adverse to the plaintiff, is a naked trespass, upon which no duty to compensate, which can be converted into a contract, arises; for such duty can only be implied where the conventional or implied relation of promiser and promisee exists, or where the duty springs from some change of relation after the wrongful act, as in the case of the conversion into money of property wrongfully taken, and the like. If he could be held to be a promiser in such case, under any implication of law, no valid reason can be given why an intruder, under a claim of right, may not be so held in all cases. The con[524]*524elusion can not be avoided that in such a case he can not be regarded in any" other light than as a trespasser; for he not;only enters upon the property in opposition to the notice of the owner forbidding it, except upon the terms of recog, nizing and responding to his right to require compensation, but also under the assertion of a claim of right inconsistent with and adverse to that made by the owner.
The subject of tolls, and the right of the plpintiff to collect them, was very elaborately discussed in this case, but, under the views we have taken, it does not become necessary for us to consider, it.
From the views already expressed, it follows that the defendants in this case are mere naked trespassers, and no assumpsit can be implied from their use of the canal; and this view renders it unnecessary to consider any other of the questions raised.
The judgment is affirmed.
Campbell J. concurred. Chkistiancy J. also concurred in the result.
Manning J.:
I think trespass, and not assumpsit, is the proper action. Was the stream navigable before the canal was
dug? The defense is that it was, and that defendants, in common with other citizens of the state, had a right to use it to float their logs. The law will not imply a promise in such circumstances,'for there is nothing to base a promise upon, as defendants received no benefit from the use of the canal, if their defense be true.
Assumpsit for money had and received is an equitable action, and may be brought when one person has money in his hands that in equity and good conscience belongs to another. But that is not this action, which is assumpsit to recover compensation for the use of plaintiff’s canal, and, like assumpsit for goods sold and delivered, or for [525]*525Work and labor, will lie only on a promise, express or implied.
When plaintiff’s goodsi have been wrongfully'! taken, it is said he may waive the trespass and bring assumpsit for goods sold and delivered. This may be so where defendant lays no claim to the goods, and the trespass is wholly wanton on his part. But when he claims them as his own, or claims a right to the possession of them, and justifies the taking on that ground, trespass 6and not assumpsit is the proper remedy. In a case of pure trespass, by which I mean one committed without color; of right to the property taken, the court may well say to defendant. You shall not be permitted to defeat the action by show-big you took the goods without intending to pay for them, or with an intention to do a wrong with which the plaintiff, by putting a more charitable construction on your conduct, has not thought proper to charge you, This, I think, is all that is meant by waiving the trespass and suing for goods sold and delivered. There is no objection to such a course when the trespass is wholly separate from the right of property; but when it is mixed up with the right of property, and the question of trespass or no trespass depends on that right, and must stand or fall with it, the trespass can not be waived, because none is admitted; and the law will not imply a promise to pay, as defendant took the goods in his own right.
The case at bar does not involve the right to personal property, but the right of the public to an easement over plaintiff’s land. If the stream was navigable when the canal was dug, the public still has a right to use it; otherwise not, unless it it has since been dedicated to the public.
It was urged on the argument, as a reason why the court should sustain the present action, that in trespass the plaintiff could recover nominal damages only. I do not think so. In trespass for breaking and entering his close, [526]*526he may allege and prove the use of the canal by defendants as special damages.
Judgment affirmed.