majority">BROADDUS, J.

This is a suit for rent of land for the year 1900. The plaintiff was the owner of a life-estate in about twenty acres of land, which was inclosed by the land of adjoining proprietors with about thirty acres of land belonging to the defendant. It had been the custom of the owners of the last-named- quantity, prior to defendant’s ownership, to use all the inclosed land without demand and payment of rent by plaintiff' *625for the value of the grazing on her share of the same. But in 1900, through her agent, Isaiah Buzzard, she claimed rent of defendant, for her portion. Buzzard testified that he had a talk in May or June, 1900, with defendant about the matter, in which he told him (defendant) that if he used all the pasture, plaintiff would have to be paid for it, to which defendant replied that he did not know about it; that he would rather buy plaintiff’s interest in the land, and that he would figure up and see what he could do about it. However, in a later conversation, when Buzzard asked him what he was going to do about the matter, defendant answered that he was not going .to do anything. •

There was evidence as to the value of the rent of plaintiff’s portion of the land, and also that defendant not only grazed his own stock on the inclosure, but grazed that of others for compensation. The finding and judgment were for the plaintiff, from which defendant appealed. , Defendant contends that under the evidence plaintiff was not entitled to recover and that the court committed error in the giving and refusing of instructions.

Instructions one, two and three, given on the part of plaintiff, are predicated upon the theory that if the jury should find that there was an agreement between defendant and plaintiff’s agent, Buzzard, that defendant was to pay plaintiff rent, it would find for plaintiff the value of such rent. We think that in the giving of these instructions the court was in error, for there was no evidence that the defendant would pay rent, and no such inference is to be drawn from the conversation alluded to between said agent and defendant.

The instructions asked by the defendant and refused by the court were to the effect that, if the jury found that the lands of plaintiff and defendant were included in a common inclosure, and defendant turned his cattle into this inclosure on his own land, and they *626wandered upon plaintiff’s land and grazed there, the finding would be for the defendant. These last-named instructions raise the principal question in the case, viz.: the liability of the defendant for use of plaintiff’s-premises included in the same inclosure with his own. Defendant’s contention is, that under the law he was not required to- fence his own land, but had the right to turn his cattle upon it to graze, and the fact that they went upon that of plaintiff and grazed thereon would not make him liable for rent of the same. This contention would undoubtedly be true if the lands were unintílosed. But the facts are different': the lands of plaintiff and defendant were in a common inclosure, and not open to the cattle of strangers. The question is not a new one in this State. In Jackson v. Fulton, 87 Mo. App. 228, it was held: “The common law, restraining cattle from running at large has never been in force in this State, but the common law as to adjoining proprietors without a partition fence is in force, and under it each party must fence his own stock or pay the-' damages it may do to the other proprietor.” See O’Riley v. Diss, 41 Mo. App. 184.

The plaintiff’s action is not for a trespass but for rent. Because, as we have seen, defendant had no right to turn his cattle upon the common- inclo-sure so that they would in the very nature of things trespass upon plaintiff’s lands, it does not follow that her action should be founded in trespass. Independent of her common-law right to waive the trespass and sue on an implied promise, the evidence showed the relation of landlord and tenant. In Wilkinson v. Wilkinson, 62 Mo. App. 249, it was held: “A definite agreement to pay rent is not essential to create the relation of landlord and tenant ; and an action for use and occupation will lie where the defendant, with plaintiff’s consent, enters upon the land and uses it for his own profit, as that is a complete .promise to pay a reasonable compensation.” The defendant was notified that plaintiff would require him *627to pay rent, and although he refused to agree to pay any particular amount, or to pay any sum whatever, his occupation with plaintiff’s permission, and with the understanding that rent would be demanded, under the authority cited, created an implied promise at least to pay •a reasonable compensation for the use of the land.

The case seems to have been tried upon a false theory, judging by the instructions, but as the plaintiff would have been entitled to a verdict upon any theory, this court is not authorized to reverse it, as the statute forbids such action on our part in such cases.

Therefore, the cause is affirmed.

All concur.

Citation profile

Relationships

How this case has been treated — in progress