§ 1277. After the tenancy is dissolved, and the lessee has quitted possession,1 certain rights still remain to him, in virtue of his tenancy,
§ 1278. 1st. He has a right to enter upon the premises for the purpose of removing such of his goods and utensils as are not fixtures.2 All the fixtures which he is permitted by law to remove must be taken before the termination of the tenancy;8 and if he neglect so to do, he cannot afterwards enter to take them. But where a chattel has been annexed by the tenant and may without injury to the freehold be severed, it is not necessarily to be inferred from the annexation that it becomes the property of the freeholder. This is a question for a jury, and they may infer, from the evidence of use or other circumstances, an agreement that the original owner should have liberty to take it away again on the determination of the lease.4
§ 1279. 2d. Whenever the time of the tenancy is indeterminate and uncertain, the tenant is entitled to emblements, unless he determine the tenancy by his own act. But if the term be certain and definite, he is not.5 Emblements are those annual products of the land which are grown by the labor of the tenant. Whatever either grows spontaneously or is not of an annual growth and decay, as trees, grass, fruit, is not included in the term emblements.1
1 A tenant is bound to deliver up complete possession at end of his term; and if an under-tenant holds over, the landlord may recover, as damages against the tenant, the value of the whole premises and cost of ejecting sub-tenant. Henderson v. Squire, Law R. 4 Q. B. 170 (1869). And see Harding v. Crethorn, 1 Esp. 57; Christy v. Tancred, 7 M. & W. 127.
2 Lit. § 69; 2 Black. Comm. 147; Folsom v. Moore, 19 Me. 252.
3 Poole's Case, 1 Salk. 368; Ex parte Quincy, 1 Atk. 477; Fitzherbert v. Shaw, 1 H. Bl. 258; Heap v. Barton, 12 C. B. 274; 10 Eng. Law & Eq. 499.
4 Wood v. Hewett, 8 Q. B. 914; Rex v. Otley, 1 B. & Ad. 161. As to what a tenant may remove, see ante, § 1232.
5 Co. Litt. 55, &; Knevett v. Pool, Cro. Eliz. 463; Davis v. Connop, 1 Price, 53.
§ 1280. A tenant from year to year, therefore, is entitled to emblements, but a tenant for a year certain is not.2 So, also, where the tenancy is determinable upon the occurrence of some future contingent event, the tenant will be entitled to emblements.3 And even where the tenancy is for a term certain, a custom of the neighborhood allowing the tenant the outgoing crops, harvested after the expiration of the term, or an agreement to that effect, will entitle the tenant to such emblements.4
§ 1281. Whenever the tenancy is determined by, 1st. The act of God, - as by death; or, 2d. By act of law, - as if a lease be made to husband and wife during coverture, and they be divorced; or, 3d. By the act of the lessor, - as by his giving notice to quit, - the tenant may enter and take the emblements. But if the tenancy be determined by the lessee, as if, being tenant at will, he determine the will, or if he be guilty of a breach of condition, he has no right to emblements.5
§ 1282. The manner in which the tenant shall enter, and the nature and extent of his possession during the necessary time consumed by him in reaping and removing the harvest, are determined by the terms of the express contract, or, in the absence of any contract in relation thereto, by the custom and usage of the neighborhood, which the tenant is bound to prove.6 The tenant in such case, however, can never have more than an easement sufficient to enable him properly to cultivate, reap, and remove the crop; and he will, in no case, be entitled to an adverse possession. The tenant is, also, allowed, if such be the custom, to leave his away-going crops in the barns for a reasonable time, for the purpose of threshing.1 Unless, however, there be an express contract in regard to manure on a farm, the outgoing tenant cannot take it.2 But where it is made in a livery-stable, or in manner not connected with agriculture or in the course of husbandry, the tenant may take it.8
1 Co. Litt. 55, b; 1 Rol. Abr. 728, 1. 1; Latham v. Atwood, Cro. Car. 515; 2 Black. Coram. 123.
2 Kingsbury v. Collins, 12 Moore, 424; 4 Bing. 202; 2 Black. Coram. 123, 404; Chandler v. Thurston, 10 Pick. 209; 4 Kent, Comm. 109; 1 Hill. Abr. 9, 10, 183; Whitmarsh v;. Cutting, 10 Johns. 361.
3 Co. Litt. 55, b; Knevett v. Pool, Cro. Eliz. 463.
4 Wigglesworth v. Dallison, 1 Doug. 201, 207; Beavan v. Delahay, 1 H. Black. 5; Lewis v. Harris, Ib. 7, note.
5 1 Roll. Abr. 728, 1. 1; Latham v. Atwood, Cro. Car. 515; 2 Black. Comm. 123; Lit. § 69.
6 Wigglesworth v. Dallison, 1 Doug. 201, 207, note 8; Caldecott v.
§ 1283. The right, also, of the tenant to be remunerated for tillage, or cultivation of arable land, which is to enure solely to the benefit of his successor, and the right to carry away straw and hay grown upon the land, or to be paid therefor, depend upon custom;4 and usage and custom constitute the rule in all cases where there is no express agreement providing therefor, or directly inconsistent therewith.5
Smythies, 7 C. & P. 808; Strickland v. Maxwell, 2 C. & M. 539; 4 Tyr. 346.
1 Beavan v. Delahay, 1 H. Bl. 5; 2 Abr. Customs, b.
2 Lassell v. Reed, 6 Greenl. 222; Staples v. Emery, 7 Greenl. 204; Daniels v. Pond, 21 Pick. 367; Lewis v. Lyman, 22 Pick. 442; Gough v. Howard, Peake, Ad. Cas. 197; Ex parte Nixon, 1 Rose, 445; Perry v. Carr, 44 N. H. 118; Hill v. DeRochemont, 48 N. H. 88; Plumer v. Plumer, 10 Foster, 558 (1855).
3 Daniels v. Pond, 21 Pick. 367; Needham v. Allison, 24 N. H. 355; Plumer v. Plumer, 30 N. H. 558; Corey v. Bishop, 48 N. H. 148; Godard v. Gould, 14 Barb. 662; Ford p. Cobb, 20 ST. Y. 344; Wing v. Gray, 36 Vt. 261; Noble v. Bosworth, 19 Pick. 314; Conner v. Coffin, 22 N. H. 538; Austin v. Sawyer, 9 Cow. 39; Fay v. Muzzey, 13 Gray, 53.
4 Dalby v. Hirst, 1 B. & B. 224; 3 Moore, 536; Woodf. by Harrison, 526; Smith v. Chance, 2 B. & Ald. 753; Hutton v. Warren, 1 M. & W. 477.
5 Holding v. Pigott, 5 M. & P. 427; 7 Bing. 465.