Wiggin v. Wiggin

6 N.H. 298

Opinion

Richardson, C. J.

delivered the opinion of the court.

Assumpsit for the use and occupation of land lies only in cases where the defendant can be considered as having held the land with the permission of the plaintiff But the permission may be either express or implied.

In cases where the defendant has held the land adversely to the plaintiff, no permission can be implied, and assumpsit does not lie. 3 Starkie’s Ev. 1513; 2 Greenleaf, 336, Wyman v. Hook; 17 Mass. Rep. 299, Allen v. Thayer; 9 Dowling & Ryland, 480, Cripps v. Blank; Laws, Pl. in Assumpsit, 378.

But where the defendant has entered without any col- or of right, and held the land, the law, in cases where there is nothing to rebut the presumption, may, perhaps, presume a promise on the part of the defendant to pay for the use, and a permission on the part of the plaintiff In such a case the tort may perhaps be waived and as-sumpsit sustained. 3 Starkie’s Ev. 1517.

But in this case, as the defendant held the land in defiance of the plaintiff, no permission can be presumed. The case of Cripps v. Blank, above cited, is directly in point.

Judgment for the defendant.