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(Reported Aleyn, 31. ) SLANDER. Thou art a thief, and hast stolen my dung. After a verdict for the plaintiff it was moved, that the words were not actionable, because dung is an indifferent word to signify either dung in a heap, which is a chattel, or dung spread or scattered upon the ground, which is parcel of the freehold, and then no felony may be committed of it. But upon good debate judgment was given for the plaintiff, because the first words being plainly actionable, the effect of them shall not be taken away by subsequent words ambiguous; for when subsequent words should qualify the words precedent, they ought to carry in them a strong intendment that they were spoken in such a sense as was not actionable ; and then also Roll held they ought to be brought in by way of explanation by the word " for," as to say Thou art a thief, for thou hast, &c.; but if the words are, Thou art a thief, and hast stolen, &c., there the latter words are cumulative. But Bacon denied the difference, and cited Clerk and Gilbert's Case, Hob. 331, where that difference is denied, and said, that 8 Car. in the Common Pleas, where the words were, Thou art a thief, and bast robbed thy kinsman of his land, the court was divided in opinion ; but after upon conference with all the Justices at Serjeants’ Inn, it was adjudged for the plaintitl. And Roll denied both those cases to be law; and said, that this latter case was resolved upon consideration of that in Hobert, which hath been often denied for law in this court. And he said, that he had conferred with Sir Robert Barkley and Sir John Bramston, and their opinions concur with him in this point. And Roll held, that if the defendant had said thou hast stolen my dung, without any other words, they would have been actionable ; for dung in common parlance is understood of dung in a heap, which was agreed to be a chattel, of which felony may be committed, and goeth to the executors; but if it lieth scattered upon the ground, so that it cannot well be gathered without gathering part of the soil with it, then it is parcel of the freehold. slere filed a heat it pusnakty - chat they acattered it
LASSELL v. REED.
SUPREME JUDICIAL COURT OF MAINE. 1829.
(Reported 6 Greenl. 222.] This case, which was trespass quare clausum fregit, came before the court upon a case stated by the parties.
The defendant bad been the lessee of the plaintiff's farm, for the term of one year, ending April 15th ; on which day he left the premises, leaving thereon a quantity of manure, lying in heaps about the barn and in the farmyard, so frozen that it could not then be removed without great inconvenience. It was afterwards taken away by the defendant, between the 10th and the 30th of May, as soon as it conveniently could be removed ; doing no other dainage than was unavoidable in effecting that object; and this act was the trespass complained of. Some of the cattle kept on the farm belonged to the lessor and were leased with the premises; others belonged to the defendant. Some of the hay also, was purchased by the defendant, and the residue was cut on the farm. The lease was referred to in the statement of facts, as containing covenants for the breach of which the lessor bad recovered judgment; but none of them related to the surrender or mode of management of the farm, or in any manner touched the cause of this action.
The parties agreed that if the opinion of the court should be wholly with the defendant, he should have judgment for costs; that if he had a right to take away the manure at the end of his term, and not afterwards, the plaintiff should have judgment for nominal damages and costs; but if he had no right to the manure, the plaintiff should have judgment for its value, being fifteen dollars, and costs.
Johnson, for the defendant,
MELLEN, C. J. Upon examination of the lease referred to in the statement of facts, we do not perceive any covenants on the part of Reed which have any direct bearing on the questions submitted for our decision. Nothing is said as to the management of the farm in a husbandlike-manner, or surrendering it at the end of the year in as good order and condition as it was at the commencement of the lease. The lease is also silent on the subject of manure. The same kind of silence or inattention has been the occasion of the numerous decisions which are to be found in the books of reports between lessors and lessees, mortgagors and mortgagees, and grantors and grantees, or those claiming under them, in relation to the legal character and ownership of certain articles or species of property, connected with or appertaining to the main subject of the conveyance or contract. A few words, inserted in such instruments, expressive of the meaning of the parties respecting
the subject, would have prevented all controversy and doubt. In the absence of all such language, indicating their intention as to the particulars above alluded to, courts of law have been obliged to settle the rights of contending claimants, in some cases according to common understanding and usage; thus window blinds, keys, &c., are considered as part of the real estate (though not strictly speaking fixtures), or rather as so connected with the realty as always to pass with it. In other cases, as between landlord and tenant, the question has been settled upon the principles of general policy and utility; as in the case of erections for the purpose of carrying on trade, or the more profitable management of a farm by the tenant. It does not appear by the facts before us, that there is any general usage, in virtue of which the manure made on a farm by the cattle of the lessee during the term of his lease is considered as belonging to him exclusively, or to the lessor, or to both of them ; and we have not been able to find any case directly applicable to the present. There being no usage, nor such decision, nor expressed intention of the parties to guide us, the case is one which must be decided on the principles of policy and the public good ; for we do not deem the case cited from Espinasse as applicable. The opinion there given was founded on certain expressions in the lease, by means of which the lessee was considered as a trespasser in removing the manure from the farm at the end of the lease.
What then does policy and the public good dictate and require in the present case? Before answering the question we would observe that we do not consider the case in any way changed by the fact that a part of the fodder was carried on to the farm by the defendant, and a part of the cattle on the farm were those leased; for the purposes of the lease, such fodder and such cattle must be considered as belonging to the tenant during the term ; and he must be considered as the purchaser of the fodder growing on the land, by the contract of lease, as much as if he should purchase it elsewhere on account of the want of a sufficiency produced by the farm ; because a farm not yielding a sufficiency would command the less rent on that account. Numerous cases show that a tenant, at the termination of his lease, may remove erections made at his own expense for the purpose of carrying on his trade; because it is for the public good that such species of enterprise and industry should be encouraged ; and where the parties are silent on the subject in the lease, the law decides what principle best advances the public interest and accords with good policy, and by that principle settles the question of property. It is our duty to regard and protect the interests of agriculture as well as trade. It is obviously true, as a general observation, that manure is essential on a farm ; and that such manure is the product of the stock kept on such farm and relied upon as annually to be appropriated to enrich the farm and render it productive. If at the end of the year, or of the term where the lease is for more than a year, the tenant may lawfully remoye the manure which has been accumulated, the consequence will be the imporеrishment of the farm for the ensuing year; or such a consequence must be prevented at an unexpected expense, occasioned by the conduct of the lessee; or else the farm, destitute of manure, must necessarily be leased at a reduced rent or unprofitably occupied by the owner. Either alternative is an unreasonable one; and all the above-mentioned consequences may be avoided by denying to the lessee what is contended for in this action. His claim has no foundation in justice or reason, and such a claim the laws of the land cannot sanction. It is true that the defendant did not remove and carry away any manure, except what was lying in heaps, probably adjoining the barn in the usual places; but still if he had a right to remove those heaps, why had he not a right to travel over the farm and collect and remove as much as he could find scattered upon the ground during the summer and autumn by the cattle in their pastures? In both instances the manure was the product of his cattle ; yet who ever claimed to exercise such a right, or pretended to have such a claim? The argument proves too much, and leads to impossibilities in practice, as well as to something in theory which bears a strong resemblance to an absurdity.
We do not mean to be understood by this opinion, as extending the principles on which it is founded to the case of tenants of livery stables in towns, and perhaps some other estate, having no connection with the pursuits of agriculture; other principles may be applicable in such circumstances; but as to their application or their extent we mean to give no opinion on this occasion.
The case most nearly resembling the present is that of Kittredge v. Woods, 3 N. Hamp. Rep. 503, in which it was decided that when land is sold and conveyed, manure lying about a barn upon the land, will pass to the grantee, as an incident to the land, unless there be a reservation of it in the deed. The Chief Justice observed that the question would generally arise between lessor and lessee, and very plainly intimates an opinion that a lessee, after the expiration of his lease, would have no right to the manure left on the land. On the whole, we are all of opinion that the defence is not sustained, and that the defendant must be called. According to the agreement of the parties, judgment must be entered for $15.00 and costs.
STAPLES V. EMERY.
(Reported 7 Greenl. 201.) This was an action of trespass for taking and carrying away from the barn yard of the plaintiff, thirty cords of manure, in the month of May, 1828.
1 See Lewis v. Jones, 17 Pa. 262 ; Hill v. De Richemont, 48 N. H. 87.
In a case stated by the parties, it was agreed that one Elwell, who was the owner of the farm from which the manure was taken, had mortgaged it to the plaintiff, who had entered for condition broken, in August, 1827. The farm, however, had for many years, and until September, 1830, been in the sole occupancy of Elwell the mortgagor ; and the manure was taken under an execution against Elwell, committed to the defendant, as a constable, for collection.
J. and E. Shepley, for the plaintiff'.
MELLEN, C. J. The only question decided in Lassell v. Reed, 6 Greenl. 222, was, that a tenant for one year, ending April 15, had no right to remove and convert to his own use, at or after the end of the lease, the manure made and accumulated on the premises during the continuance of the lease. In some peculiar respects the present action differs from that; for in this it appears that before the manure in question was made, the plaintiff had entered under the mortgage for breach of the condition ; but it also appears that Elwell, the mortgagor, for many years before such entry, had been in possession of the land, and ever since the entry, which was in August, 1827, had continued in possession, up to the time when the statement of facts was signed in September, 1830; and from this last fact we are to consider Elwell, during all that time, as a disseisor of Staples, or as a tenant at will under him ; but as a wrong is not to be presumed, and as none is alleged on his part, we ought to consider him, and so the plaintiff's counsel contends, as a tenant at will, liable to the uncertainties of such a tenancy, and entitled to its privileges; liable to have the lease terminated at the pleasure of the lessor or owner, but entitled to emblements, if terminated unreasonably, according to well-settled principles. is important to attend to the reasoning of the court, which led to the decision, in the case of Lassell v. Reed. They say, “ it is obviously true, as a general observation, that manure is essential on a farm; and that such manure is the product of the stock kept on such farm, and relied upon as annually to be applied to enrich the farm and render it productive. If at the end of the year, or of the term, when the lease is for more than a year, the tenant may lawfully remove the manure which has been accumulated, the consequence will be the impoverishment of the farm for the ensuing year; or such a quence must be prevented at an unexpected expense, occasioned by the conduct of the tenant; or else the farm, destitute of manure, must be leased at a reduced rent or unprofitably occupied by the owner.” In the case before us the above reasoning is inapplicable, because none of the contemplated consequences could follow. Suppose a tenant for five years should, the second, third, and fourth years, sell all the manure and manage the land without any ; whose loss would it be? He would be injuring himself, destroying his own profits to a certain extent, and rendering himself less able to pay his rent. Still, would he not have a right to proceed in this manner?