Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-06-29
A. X. G. N. R'Y co. V. M'HAN.
Supreme Court of Georgia.
April 10, 1900.

AN ACTION FOR THE USE AND oC-
CUPATIoN OF LAND WILL NOT
LIE IN FAVOR OF ITS OWNER
AGAINST ONE WHO ENTERED
WITHOUT HIS CONSENT, AND
WITHOUT ANY AUTHORITY OR
RIGHT TO USE THE LAND.
An action was brought by A. McHan
against the railroad company for the
use and occupation of a described strip
of land for the years 1895, 1896, 1897. and
1895. The plaintiff alleged in his petit
ton that the defendant company had
operated It's line of railway over the
land in question without the consent
OF the plaintiff, and without any au-
thority Whatever, or right to the said
USE" BY amendment the plaintiff fur
Their alleged that the Marietta and
North Georgia Railroad Company. de-
PENDANTS predecessor in USE was grant
ed by PLAINTIFF simply the right to pos
sess and enjoy the use of said described
real estate at the will of plaintiffs tes-
tatorl?J. and that at the expiration of
said use defendants predecessor agreed
to pay reasonable compensation
therefor. and for all damages done to
the premises in its use: that defend
ants predecessor accepted the same on
the terms aforesaid; that, at the time
defendant went into possession of said
land. 1t had full notice of plaintiffs title
and of its predecessors use, and the
character thereof" To this petition. as
amended. the defendant company filed
a general demurrer. which was over
ruled. and IL excepted
The court says:
Under the allegations of the petition
as originally framed, the railway COM
pany was 'trespaSSer, pure and sim
pie; and, this being so, the plaintiff
could not maintain against it an action
Tor the use and occupation of the prem
Uses, as upon an implied promise to pay
rent. The amendment did not help the
case. AS will have been seen. this
amendment merely alleged that the de-
PENDANTS predecessor in use, the Mari
eta and North Georgia Railroad Com
pany. was the tenant at will of the
plaintin; that 1t had expressly agreed
TO pay reasonable compensation for the
use of the property; and that the de-
1enuant went into possession with full
notice OF these facts. Nothing in the
amendment in any manner qualities or
negatives the averment In the petition
that the defendant entered into posses
sion without the plaintiffs consent, and
without shadow of right. Certainly
then. no contractural relation between
the plaintiff and the defendant was spe-
cifcally alleged; and. In view of the
aVerment Just referred to, there is no
ground for even an inference that the
Atlanta. Knoxville and Northern Rail-
way Company in any way succeeded to
any right of its predecessor to use or
occupy the premises in dispute In
deed. the defendant company could
have acquired no right as against the
plaintiff, by reason of the fact that it
was the legal successor of the Marietta
and North Georgia Railroad Company:
for that company. being only a tenant
at viii. had no estate in the PLAINTIFF
land which was the subject-matter of
assignment or of judicial sale, and ac-
cordingly its rights in the premises did
not pass to it's successor, but immedi-
ateIy ceased and determined when 1t
relinquished possession. So, taking the
petition and the amendment together.
1t still remains that, relatively to the
plaintiff, the defendant company was
nothing but a trespasser; and the rela-
ton of landlord and tenant, which Is
the necessary foundation for an action
like the present, could not have existed
between the plaintiff and that company.
Further comment is Unnecessary for
this case is controlled by section S11s of
the Civil Code, which provides that:
when title is shown in the plaintiff
and occupation by the defendant, an
obligation to pay rent is generally i'm
Piled: but II the entry was not under
the plaintiff, or If possession is adverse
to him. no such implication arises"
Judgment reversed.