seems to have been begun, and tried, by the plaintiff on the theory that his right to the possession of the house was superior to his right to remain in the defendant's service.

When the labor ceased on the 19th of July, the plaintiff ceased to pay for his occupancy. By ceasing to labor without remonstrance or objection he must be held to acquiesce in the defendant's right to terminate the contract for labor. If that contract was rightfully terminated, then the plaintiff's right to the house was at an end, and he could be lawfully put out of possession. . . . It is not necessary that occupation of a house, or apartments, should be a necessary incident to the service to be performed in order that the right to continue in possession should end with the service. It is enough if such occupation is convenient for the purposes of the service and was obtained by reason of the contract of hiring."

[33] To the same effect is Heffelfinger v. Fulton, 25 Ind. App. 33, 56 N. E. 688, and East Norway Lake Church v. Froislie, 37 Minn. 447, 35 N. W. 260.

Judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.

NOTE.

Person Occupying Premises of Employer as Part of Compensation as Tenant of Owner.

Introductory, 1111.
General Rule, 1111.
Application of Rule, 1112.
Qualification of Rule, 1115.

Introductory.

It is the purpose of the present note to discuss only those cases which deal with the relation of a person occupying the premises of his employer as a part of his compensation, as affecting the civil rights and liabilities of the owner of the property. There are decisions which deal with the effect of occupation of that kind with relation to other matters, such as the right of the servant to claim a settlement, or his liability to be rated under the various poor laws, and his right to a franchise under particular statutes, but as stated by the court in Bowman v. Bradley, 151 Pa. St. 351, 24 Atl. 1062, 17 L.R.A. 213, which action was brought to recover damages for the alleged wrongful ejection of a farm hand from premises, owned by his employer, of which he claimed to be in possession as a tenant and not as a servant, "analogies furnished by cases arising under the poor laws

in England or in this country, while they may be helpful in some respects, ought not to be controlling."

For a discussion of the cases dealing with the relation between the owner of premises and a person working the land for a share of the crops see the notes to Mead v. Owen, 13 Ann. Cas. 231; Wagner v. Buttles, Ann. Cas. 1914B 144.

General Rule.

As a general rule it is held that a person, who occupies the premises of his employer as part of his compensation, is in possession as a servant and not as a tenant where the occupancy is connected with or is required for the necessary and better performance of his service.

England.-White v. Bayley, 10 C. B. N. S. 227, 7 Jur. N. S. 948, 30 L. J. C. Pl. 253, 100 E. C. L. 227; Rex v. Cheshunt, 1 B. & Ald. 473; Rex v. Stock, 2 Taunt. 339, 2 Leach C. C. 1015, R. & R. C. C. 185, 11 Rev, Rep. 605. See also Bertie v. Beaumont, 16 East 33; Lake v. Campbell, 5. L. T. N. S. 582.

Canada. Hart v. O'Brien, 15 L. C. Jur 42. See also Williams v. Herrick, 5 U. C. Q. B. 613.

California.-Todhunter v. Armstrong, 53

Pac. 446.

Georgia. Mackenzie v. Minis, 132 Ga. 323, 16 Ann. Cas. 723, 63 S. E. 900, 23 L.R.A. (N.S.) 1003.

Illinois. Eichengreen v. Appel, 44 Ill. App. 19; Mead v. Pollock, 99 Ill. App. 151; Crain v. Burnett, 190 Ill. App. 407.

Indiana.-Heffelfinger v. Fulton, 25 Ind. App. 33, 56 N. E. 688.

Kentucky-See Waller v. Morgan, 18 B. Mon. 136.

Michigan.-School Dist. v. Batsche, 106 Mich. 330, 64 N. W. 196, 29 L.R.A. 576; Vincent v. Crane, 134 Mich. 700, 97 N. W. 34. And see the reported case. See also Tucker v. Burt, 152 Mich. 68, 115 N. W. 722, 17 L.R.A. (N.S.) 510, 15 Detroit Leg. N. 83. Minnesota.-Lightbody V. Truelsen, 39

Minn. 310, 40 N. W. 67. Nebraska. Homan v. Redick, 97 Neb. 299, 149 N. W. 782, L.R.A. 1915€ 601.

New Jersey-Mitchell v. Morris Canal, etc. Co. 31 N. J. L. 99; McQuade v. Emmons, 38 N. J. L. 397.

New York.-Haywood v. Miller, 3 Hill 90; People v. Annis, 45 Barb. 304; Kerrains v. People, 60 N. Y. 221, 19 Am. Rep. 158; Weisberg v. Cohen, 129 App. Div. 496, 114 N. Y. S. 138. See also Doyle v. Gibbs, 6 Lans. 180.

North Carolina.-See State v. Curtis, 20 N. C. 363; Watson v. McEachin, 47 N. C. 207.

Pennsylvania.-Huggins v. Bridges, 29 Pa. Super. Ct. 82; Bowman v. Bradley, 151 Pa. St. 351, 24 Atl. 1062, 17 L.R.A. 213, 31 W. N.

C. 142. See also Zinnel v. Bergdoll, 9 Pa. Super. Ct. 522, 44 W. N. C. 54, 7 Del, Co. Rep. 369.

In White v. Bayley, 10 C. B. N. S. 227, 7 Jur. N. S. 948, 30 L. J. C. Pl. 253, 100 E. C. L. 227, Erle, C. J., said: "The distinction is extremely important between granting an estate to a person and the case where an owner allows a person in his employ, for the purpose of better complying with his duties as a servant, to have the use of premises. He has no estate in the latter case, and the owner of the premises, as far as that goes, is ablə to remove him at any time."

The

On the termination of the employment the right to occupy the premises ceases. Lake v. Compbell, 5 L. T. N. S. (Eng.) 582; Hart v. O'Brien, 15 L. C. Jur. (Eng.) 42; Williams v. Herrick, 5 U. C. Q. B. 613; De Briar v. Minturn, 1 Cal. 456; Homan v. Redick, 97 Neb. 299, 149 N. W. 782, L.R.A.1915C 601; Mitchell v. Morris Canal, etc. Co. 31 N. J. L. 99; McQuade v. Emmons, 38 N. J. L. 397; People v. Annis, 45 Barb. (N. Y.) 304; Bowman v. Bradley, 151 Pa. St. 351, 24 Atl. 1062, 17 L.R.A. 213, 31 W. N. C. 142. Thus in De Briar v. Minturn, 1 Cal. 450, the court said: "The defendant was an innkeeper. He employed the plaintiff as a barkeeper, and was to give him three hundred dollars per month for his services, and allow him the privilege of occupying a room so long as he remained in the defendant's employ. plaintiff was not hired for any definite pericd, and he was discharged by the defendant. After such discharge, the defendant notified the plaintiff to leave the room which he occupied, at the end of the month. The plaintiff did not comply with the notice, and the defendant put him out of the house by force; and this action is brought to recover damages for being thus ejected. The jury rendered a verdict in favor of the plaintiff for six hundred dollars. We do not see how any action can be maintained upon the facts presented. The plaintiff had no right to remain in the defendant's house after being notified to leave. and the defendant had a right to eject him. It does not appear that any more force was used than was necessary, or that the facts would warrant anything more than nominal damages, even if an action could be sustained at all. We think a new trial should be granted." In Crain v. Burnett, 190 Ill. App. 407, it was said: "Where an employee occupies a house incidental to his employment and he is discharged, whether the discharge be rightful or wrongful, he must vacate the premises occupied by him as such employee. If he fails to leave peaceably, or after doing so returns, he becomes a trespasser and may be ejected by the master although his wages have not been paid."

Application of Rule.

In Mackenzie v. Minis, 132 Ga. 323, 16 Ann. Cas. 723, 63 S. E. 900, 23 L.R.A.(N.S.) 1003, it appeared that the defendant had entered into a written agreement with the plaintiff whereby the former agreed to work for the plaintiff as gardner on the latter's summer place for a period of three years. The engagement was dependent on the defendant proving himself competent and satisfactory to the plaintiff. As an employee, he was to have the use of a house on the land of the plaintiff. Before the expiration of three years the plaintiff discharged him and gave him written notice to quit the premises. The defendant refused to go and the plaintiff sought to enjoin him from continuing to enter the premises. In granting the injunetive relief the court said: "Where a servant occupies a dwelling house belonging to the master, free of rent, as incidental to and connected with the performance of his duties as such servant, if he quits the service of the master before the expiration of the term, or is discharged by the master, his right to the possession of the dwelling house ceases, and he must surrender it. In such cases, in the eye of the law, the master has never parted with possession of the premises, the servant's possession being regarded as that of the master. Hence the master may enter and use such reasonable force as may be necessary to expel the servant. It has been said, that, 'when a servant has been discharged, the master's right in this respect does not depend upon the question whether the servant is rightfully or wrongfully discharged, but exists in the one case as well as in the other, the master incurring the peril of paying damages for a breach of the contract if the discharge is wrongful; but the right to expel a servant from the house exists, whether he had good cause therefor or not.' . It is evident from the reading of the contract that the furnishing of the house upon the place to the manager and head gardener was an incident to the service, and for the purpose of aiding in its discharge, and was not a letting of any part of the property to him as a tenant of the owner. The occupancy of the house was directly connected with the service to be rendered, and for the better performance thereof. In law, therefore, the employer did not resign possession to the employee as to a tenant, but the possession of the employee was in effect that of the master. When the employee was discharged, it was his duty to resign possession and to leave the premises. He had no right to persist in remaining on the place, walking over it, and using it as if he had not been discharged. Nor could he do this because he insisted that he could not legally be discharged for three

years from the date of the contract." So in Mitchell v. Morris Canal, etc. Co. 31 N. J. L. 99, it appeared that the defendant was employed by the plaintiff canal company as a lock tender and as part of his compensation he was permitted to occupy one of their dwelling houses. One of the rules of the company which had been in force for a number of years and of which the defendant had notice provided that “in case any plane or lock tender shall be discharged while occupying the house belonging to the company, he shall thereupon immediately leave said house." The defendant was served with a written notice of his discharge and a notice and demand in writing for the surrender of the premises within thirteen days. The defendant refused to surrender, claiming that he was a tenant at will and entitled to three months' notice to quit. The court said: "The defendant was to occupy as long as he was in the employment of the company; and when he ceased to be so employed he was immediately to leave the house.' He held under the company and so was their tenant, not at a rent reserved, but as part compensation for his services and only during the time those services were being performed. The company reserved to themselves the right to terminate his employment and his occupancy at their pleasure. Such an arrangement is not only reasonable, but in most cases of large manufacturing companies and public works, almost indispensable. Dwellings are provided for the employees convenient to the places of their labor, to further the objects of the enterprise and facilitate the business of themselves and the public. These dwellings are not leased; nor is a rent reserved or term fixed beyond the period of labor, for that would frustrate the design of the owners and tend to defeat the enterprise-since while the time of a notice to quit was running, their works might be suspended. The notice to quit, which by the common law was six months, by our statute three months, was not required in this case." Similarly in McGee v. Gibson, 1 B. Mon. (Ky.) 105, it appeared that the plaintiff contracted to labor on the farm of the defendant, for which the defendant was to pay him, monthly, till the end of the year certain sums stipulated, and the defendant was to furnish a house to the plaintiff and to keep his cow, for which he was to pay two dollars a month for the house and one dollar a month for the cow, both payable monthly. The court said: "Upon this contract, we are of opinion that there was no independent lease of the house for a year, or any other period, but that the right of occupancy was incident to the contract of hire, and ceased whenever, by mutual consent, or by the fault of the plaintiff, the services themselves ceased. Furnishing of the house at two dollars per month,

was obviously a mode of paying a part of the wages of the plaintiff; and after such a cessation of his services as is above described, he could no more cleam the right to occupy the house, or to feed his cow on the defendant's pasture, than he could claim any other portion of his hire. From that time he would be in no better condition than a strict tenant at will, who has, by his own act, terminated the tenancy, and would, at most, be entitled only to a reasonable time for removing from the house."

In Presby v. Benjamin, 169 N. Y. 377, 62 N. E. 430, 57 L.R.A. 317, an action instituted to recover the rent reserved in the lease of an apartment, the defense was eviction. The claim of the defendant was that on leaving his apartment before the expiration of the demised term he placed the porter of his store with his wife in the apartment as his servant to take care of the apartment on his behalf during his absence; that the plaintiff refused to allow the defendant's servant to enter or occupy the apartment and that thereupon he surrendered and abandoned the premises to the landlord. The lease contained a covenant that the lessee would not assign or sublet the premises and it was the claim of the plaintiff that the action of the lessee in attempting to place his employee in possession of the premises was a breach of the covenant against subletting. The court said: "It is clear that even under a liberal construction of the covenant, to constitute a violation of this lease the defendant must have attempted to put in possession of the premises a new tenant, not merely a new occupant. To be a tenant a person must have some estate, be it ever so little, such as that of a tenant at will or on sufferance. A person

may be in occupation of real property simply as a servant or licensee of his master. In that case the possession is not changed; it is always in the master. Therefore, if

the defendant sought to place his porter in occupation of the premises as caretaker or as servant he was entirely within his rights. His testimony to this effect was not conclusive. There were circumstances from which the jury might have inferred that the suggestion of a caretaker was a subterfuge, and that the real intent was to make the porter a tenant of the premises. But in this respect the evidence presented a question of fact for the jury to pass upon." In Vincent v. Crane, 134 Mich. 700, 97 N. W. 34, it appeared that an employer was the lessee of a farm. lease contained a covenant against subletting. The court held that the act of the employer in placing one of his laborers in possession of a house situated on the premises, for the better performance of his service was not such a subletting as would avoid his lease.

His

In Huggins v. Bridges, 29 Pa. Super. Ct. 82, it was held that while the relation of landlord and tenant did not exist as between an employer and his employee who occupied rooms on the premises, as a part of his compensation and although at the termination of his employment the employer had the right to set out his goods, he was liable for injuries sustained by the employee's wife as a result of his stopping up the chimney thus causing smoke and gas to enter the rooms so occupied in an effort to make him vacate after the termination of his employment.

In Waller v. Morgan, 18 B. Mon. (Ky.) 136, it was held that a college professor who occupied a portion of the house of his employer on the premises as a part of his compensation could not be considered a tenant of his employer and therefore was not liable as a subtenant or assignee for the rent due the owner from his employer.

Where a pastor occupies as a residence property owned by a church, for the better performance of his duties, the relation of landlord and tenant does not exist and his right to the possession of the property ceases with the termination of his employment. Chatard v. O'Donovan, 80 Ind. 20, 41 Am. Rep. 782; East Norway Lake Church v. Froislie, 37 Minn. 447, 35 N. W. 260. See also Bigelow v. Norton, 3 Nova Scotia 283. Compare Bristor v. Burr, 120 N. Y. 427, 24 N. E. 937, 8 L.R.A. 710. Thus in Chatard v. O'Donovan, supra, it appeared that the action was instituted to oust the defendant, a priest, from the possession of certain church property. He had been removed from the office of pastor but had refused to surrender his possesion of the property. The court said: "While it may not be said that the defendant was the hired servant of his Bishop, it does appear that he was appointed to his position by and held it at the discretion of the Bishop, and that his possession of the property was only an incident to his appointment, the better to enable him to discharge the duties of his office, and when, in the exercise of that discretion, which by the rules and customs of the church he had the right to employ, the Bishop removed the defendant from his charge or pastorate over the congregation, his right to possession of the property at once necessarily ceased. If. under the circumstances, the parties should be deemed to have come under a contract relation to each other, the plain meaning of the contract was that when the defendant should cease to be pastor, which might be at the will of his Bishop, he should cease forthwith to occupy the property, there being, from the nature of the case, no right of occupancy except as an incident to the performance of the duties of pastor. And if this be regarded as a tenancy, it was a tenancy at will, and

determinable by one month's notice, in writing, delivered to the tenant,' which notice the complaint shows to have been given. We are, however, of the opinion that the relation of the parties was more like that of master and servant-the possession of the priest being, in fact, the possession of his superior, the Bishop, who had power, at any time and upon his own judgment or discretion, to remove one and install another in the office of pastor, and in the possession of the property of the office." In Doe v. M'Kaeg, 10 B. & C. 721, 21 E. C. L. 154, it was held that a minister placed in possession of a chapel and dwelling house was a mere tenant at will of his employers whose estate was determined by a demand of possession. See to the same effect Doe v. Jones, 10 B. & C. 718, 21 E. C. L. 153, 8 L. J. K. B. 310.

Likewise, it has been held that where a person occupies the premises of his employer as a caretaker or while looking after the interests or business of the owner the relation of landlord is not created. Mayhew v. Suttle. 4 El. & Bl. 347, 82 E. C. L. 347, 1 Jur. N. S. 303, 24 L. J. Q. B. 54, 3 W. R. 108, 3 C. L. R. 59; Doe v. Derry, 9 C. & P. 494, 38 E. C. L. 194; Davis v. Williams, 130 Ala. 530, 30 So. 488, 89 Am. St. Rep. 55, 54 L.R.A. 749; Cook v. Klenk, 142 Cal. 416, 76 Pac. 57; Davis v. Clancy, 3 McCord L. (S. C.) 422. See also Allen v. England, 3 F. & F. (Eng.) 49; Mitchell v. Davis, 20 Cal. 45; McCutchen v. Crenshaw, 40 S. C. 511, 19 S. E. 140; Letang v. Donohue, 6 Quebec Q. B. 160; Reynolds v. Metcalf, 13 U. C. C. P. 382. Compare Colcord v. Hall, 3 Head (Tenn.) 625. In Cook v. Klenk, supra, the court said: "The mere possession of property does not necessarily imply that the relation of landlord and tenant exists. The servant when given the possession of a cottage, in which to live while in the employ of the master is not necessarily a tenant. If this were so, servants and agents would have novel and embarrassing powers in regard to property placed in their charge. The relation of landlord and tenant is created by contract express or implied. The evidence here does not show that any such contract was made, or that any facts exist from which it can be inferred. To allow defendant to remain in possession under an arrangement by which he was to collect the rents from third parties and turn them over to plaintiff, after he has refused to turn over such rents, on the theory that he is a tenant, would be to allow him to reap an undue advantage from the acts of kindness shown him by plaintiff. He would be a tenant for the purpose of holding possession, but not for the purpose of collecting or paying rents."

However, in Shaw v. Hill, 79 Mich. 86, 44 N. W. 422, it was held that where one is put in possession of premises under an agree

ment to improve the same and to keep off trespassers he becomes a tenant at will.

Qualification of Rule.

A person may occupy premises as a tenant and yet be a servant of the owner and where the occupation of the employer's premises is not a mere incident to the service the principle of landlord and tenant applies even though the rental is satisfied by service. Reg. v. Lynn, 8 Ad. & El. 379, 35 E. C. L. 409, 3 N. & P. 411; Snedaker v. Powell, 32 Kan. 396, 4 Pac. 869; Ofschlager v. Surbeck, 22 Misc. 595, 50 N. Y. S. 862; Anderson v. Steinreich, 36 Misc. 845, 74 N. Y. S. 920. See also Hughes v. Chatham, Bar. & Arn. El. Cas. 61, 7 Jur. 1136, 13 L. J. C. Pl. 44, 5 M. & G. 54, 44 E. C. L. 39, 7 Scott. N. R. 581; Hunt v. Colson, 3 Moo & S. 790, 30 E. C. L. 319. In Womach v. Jenkins, 128 Mo. App. 408, 107 S. W. 423, the court said: "Where the occupation of the master's house by the servant is directly connected with the service or if it is required expressly or impliedly by the employer for the necessary or better performance of the service, the relation of the parties with respect to the property is not that of landlord and tenant, but of master and servant, and the latter will be required by law to surrender possession of the premises at the end of the employment.... But there is no inconsistency between the relation of landlord and tenant and that of master and servant, and where, as in the case in hand, it appears that the occupation of the master's premises was not treated by the parties themselves as a mere incident of the service, it should be regarded in law as the occupation by a tenant, and the rights of the parties should be determined according to the laws and principles applicable to the relation of landlord and tenant." In Anderson v. Steinreich, 36 Misc. 845, 74 N. Y. S. 920, it was held that where a janitress occupies an apartment owned by her employer under an agreement to pay rent therefor and her salary as janitress is deducted from the rent, her occupancy is that of a tenant although the relation of master and servant exists while she is performing the service of janitress. In Ofschlager v. Surbeck, 22 Misc. 595, 50 N. Y. S. 862, it appeared that a hired man who occupied a house on the premises of his employer was in possession under an agreement that he should keep the house in good order and that the rent was to be ten dollars per month, which was deducted from his wages each month. It further appeared that the employer had several times sworn that the occupancy of the hired man was that of a tenant. Under those circumstances the court held that the question whether the employer held as a tenant had been properly left to the jury. In Snedaker v. Powell, 32 Kan.

396, 4 Pac. 869, it appeared that the plaintiff had agreed with one B. to work on his farm for eight months. In return B. agreed that he would pay the plaintiff fifty dollars a month and would furnish him with a house on the premises for a period of one year. With the consent of B. the plaintiff permitted the defendant to occupy part of the house. After the completion of the term of his service the plaintiff moved out and subsequently instituted an action to collect four months' rent from the defendant. The defendant claimed that he was in possession under B and that the plaintiff merely held as the servant of B. and had no right of action for rent. The court said: "Under the contract. [plaintiff] had paid by his labor and services for the use of the house .; and even if the occupancy of the dwelling during his eight months' service was that of a servant and not as a tenant, yet after he had performed that service, the relation existing between B. and [the plaintiff] was that of landlord and tenant. In order for a person to occupy as a servant, the occupancy must in some way be in aid of or necessary to the performance of service." In Reg. v. Lynn, 8 Ad. & El. 379, 35 E. C. L. 409, 3 N. & P. 411, it appeared that an employee who formerly occupied a house on the premises of his employer by agreement moved out and made arrangements with a third person for the renting of another house. While the arrangements were made with the employee, the owner of the house considered the employer as his tenant and the rents and charges were paid by the employer under the terms of the contract of employment. The court held that the employer occupied the house as a tenant and not as a servant and as such tenant was liable to be assessed for the poor rate. In State v. Smith, 100 N. C. 466, 6 S. E. 84, it appeared that the prosecutor occupied with his family a separate and distinct dwelling, several hundred yards from that of the defendant, and under a special contract by which, for his services as a laborer, he was to have furnished him a dwelling place and a monthly allowance of meal and meat as well as the privilege of cultivating a small strip of land for his own benefit. While in possession under the agreement he was driven out, by threats and a demonstration of deadly weapons and an array of numbers, against which resistance would have been useless. The court said: "There were created, in our opinion, the legal relations of lessor and lessee between the parties, which did not warrant this invasion of the prosecutor's possession of the premises, no more than if the house had been on other lands of [defendant] instead of the plantation whereon he lived."

If the person occupying the premises of his employer as a part of his compensation re mains in possession after the termination of