The opinion of the court was delivered by
Redfield, J.This action is ejectment. The substantial facts stated by the referee are, that the plaintiff is the owner of the premises; that defendant is in the occupation of a small portion by a small hovel in which ho lived; that in the fall of 1872, the plaintiff gave defendant leave to build the hovel in which to keep his colt, and for compensation the plaintiff was to have the manure made thereon; that plaintiff allowed him to enlarge the hovel, and occupy it the second winter; that in the summer of 1874 the defendant raised up the roof, fitted it up, and moved in his family, with the knowledge of the plaintiff, and without objection ; that defendant continued to occupy without any further or different arrangement, and that the plaintiff has taken and appropriated the manure every spring, down to and including the spring of 1876; that in the spring of 1875 the plaintiff requested the defendant “ to move off the building, and vacate the premises” ; and that on July 10th of the same year, he gave defendant a like notice, and on the 14th of the same July this suit was commenced.
The act of the defendant in moving his family into the hovel, and occupying it as a dwelling-house, was, doubtless, a violation of, and put an end to, the contract, if the plaintiff had so elected. But the plaintiff, by acquiescence, constructively assented to such occupancy; and by receiving the stipulated compensation, confirmed it. If we treat the stipulated compensation for the use of the premises as annual rent, by the continued occupancy for a succession of years, and the payment of annual rent, the tenancy, however it should be designated in its inception, had grown into a tenancy from year to year. But without canvassing further the question whether the notice required is the same as of a farm occupied from year to year with annual rent, we think the notice as stated in the report was not reasonable notice. The request in the spring that defendant would move off the premises and take away his building, named no time in which this should be done, *216and plaintiff seems never to have acted upon it. The formal notice on the 10th of July required the defendant, at once, to take up his house and walk, and within four days this suit was brought. We think, under the facts reported, the defendant was not wrongfully and unlawfully in the possession at the time the suit was brought.
Judgment affirmed.