¶1The items of the plaintiff’s account annexed are all for use and occupation, and fall into two groups, those for the use of a wharf and lumber yard on Pleasant River, and those for the use of dams, brows, flowage, etc., in driving logs in the river above.
¶2As to the first group, the preponderance of the evidence is that full payment was made therefor. As to the second group, we do not find sufficient evidence that the defendant promised to pay the plaintiff anything for what use he made of the dams, etc., for log driving purposes. The mere use of them did not imply any promise *543to pay for such use. The defendant in driving his logs down the river was entitled to use the river as he found it. The plaintiff showed no franchise to charge for the use of the dams, etc., and without evidence of such franchise or of an agreement to pay, the plaintiff cannot recover. Ocqueoc Improvement Co. v. Mosher, 101 Mich. 473. Lamprey v. Nelson, 24 Minn. 304.
¶3Judgment for defendant.