The opinion of the Court was drawn up by
Tenney J.— This is an action of trespass quare clausum fregit. It appears, that the defendant acted as the servant and by the direction of James H. Foster, in entering the dwelling-house, alleged to be that of the plaintiff, and tearing down a partition in a bedroom therein.
The estate, which the defendant is charged in the writ with having unlawfully invaded, was that of James 11. Foster. The *116rights of the plaintiff, whatever they were, originated in an agreement between him and William H. Foster many years ago, when William was in the occupation of all which James claimed to own ; and this occupation with the exception of the bedroom in question was continued by William till his death, in 1837. William held by no written agreement with the owner, and can therefore be regarded only as a tenant at will or from year to year ; and this ténancy was determined by his death. The plaintiff could have no right superior to those of the one from whom he derived them, and so far as his occupation depended upon the agreement with William, the legal power to continue it ceased with his death.
The counsel for the plaintiff however contended, that he was the tenant at will of James, the owner; and that his claim in this action is founded upon that relation ; that his continued occupation for thirty-two years, a part of which was after the decease of William, with whom the contract for the use of the bedroom was made, implies in law, that his occupation was by the assent of James, and that the contract is to be considered as made between the plaintiff and the owner, the latter having acted through his agent, William. They then insist that such a tenancy is not determined till after notice to quit; and that no such notice having been given in this case, the. acts complained of are an injury to his rightful possession.
We have seen nothing from which such an implication as is contended for arises. The jury might or might not, so have found had the question been submitted to them. There is no evidence that James ever knew of the plaintiff’s possession, and from the situation of the whole building and the manner in which it was occupied by the respective tenants, such knowledge cannot be presumed. From an agreement between a tenant at will and a stranger to the owner of the estate, is the assent of the latter, that such tenant shall occupy after the relation of landlord and tenant has ceased, legally inferible ? No authorities are cited in favor of the doctrine contended for, and we see no sufficient reason for its maintenance.
All the plaintiff’s rights arose under the agreement with the *117tenant, and ended with the determination of his term, which was his life. No relation is shown to exist between the plaintiff and the owner after the tenant’s death. Tiie jury have found, that no injury was done, more than was necessary to effect the object of the owner, which was to make an alteration in his own part of the building, and this alteration it was his privilege to make. No legal occupation of the plaintiff was disturbed ; and this action, which is for an injury to his possession, cannot be sustained.
The verdict is to he set aside
and a nonsuit entered.