Judgment affirmed.

Stewart V. Doughty

9 Johnson (N. Y.), 108. - 1812.

Kent, Ch. J. - There are several questions raised in this case, which it will be necessary to consider.

1. The first question is, whether the plaintiffs be entitled, in any form of action, to recover.

The lease was determined while the crop was in the ground, and it was determined by the lessor, under the provision contained in the twelfth article of the agreement. The right to the emblements which would otherwise exist in the lessee, as the duration of his estate depended upon the will of the lessor, does not appear to be controlled or affected by the special contract of the parties. In case of the determination of the estate by the lessor, the contract provides for compensation only, "for preparing the ground for the reception of seed, or for any other extra labor." This preparation of the ground for the reception of seed is not necessarily a substitute for the right to the emblements, for it may apply to clearing and manuring and ploughing the ground, and these acts may have taken place long before seed time. The common law has established a distinction in respect to this very subject of emblements and the cost of ploughing and manuring the ground, so that the determination of an estate at will would give to the lessee his emblements, but not any compensation for these improvements. He might be ousted of the possession before the crop was in the ground, and wholly lose the expense of ploughing and manuring the land though if he was ousted afterwards he would be entitled to the emblements. Bro. Abr., tit. Emblements, pl. 7, tit. Tenant, per copie de court roll, pl. 3. We ought to consider the compensation intended by the article for such a case as this, and not as an equivalent for the crop itself The doctrine of emblements is founded on the clearest equity and the soundest policy, and ought to receive a liberal encouragement. Compensation for preparing the ground for seed is not an indemnity for the loss of the crop, which includes the loss of the seed, the labor of sowing and nursing it, and the hopes, to the laborer and his family, of a fruitful harvest.

While the crop was in the ground, and before notice to quit, it was sold by the sheriff under an execution against the lessee, and the plaintiff became the purchaser. This was a valid sale, and the purchaser became entitled to the right of ingress, etc., to gather the crop. He succeeded to all the interest of the original lessee in the crop sown and so the law was understood by this court in the case of Whipple v. Foot, 2 Rep. 423. The subsequent act of the lessee in abandoning the premises soon after notice was given, did not impair or affect the purchaser's right which had already vested. Quitting the premises was not injurious to the lessor. He lost no rent by it. It was in furtherance of his wishes, and in obedience to his notice; and if the lessee had continued in possession for the whole six months, he would probably have been an injury to the farm, by preventing its improvement the ensuing season. His prompt abandonment of the premises was no injury, and no reason why he should lose his emblements, even if we were to admit that he had it in his power, by this means, to affect the purchaser's interest. The lessor himself did not intend by the notice to deprive the lessee of the crop already sown; for the six months would not have expired until after harvest. The plaintiff, therefore, appears to have had a clear right and title to the emblements at the time they were gathered by the defendants.

The next question is, whether the plaintiff is entitled to recover the whole or only a moiety of the crop. This will depend upon the question whose property the grain was before a moiety was delivered to the lessor. By the eighth article of the agreement, the lessee was to "render and yield and pay to the lessor one-half of all the wheat, rye, corn, and other grain raised on the farm, in each year, in the bushel, after deducting the seed and also the one-half of the butter and cheese," etc., and by the ninth article he was to deliver such a proportion of hay, etc.. But here was a lease for five years, and the articles of agreement expressly declared that Van Antwerp " rented and hired, and suffered the lessee to possess and enjoy the farm, and gave him the quiet uninterrupted possession," etc. An interest in the soil passed, and the lessee would have been entitled to an action of trespass for any unlawful entry upon it; the proportion of the production of the farm which the tenant was yearly to render, was a payment of rent in kind. They were not tenants in common in the crops and productions raised. The interest and property in the crops was exclusively in the tenant, until he had separated and delivered to the lessor his proportion. It might as well be said that the lessor would have been tenant in common in the crop, though he was to receive only every tenth bushel of grain as a rent. The interest in the whole crop, therefore, passed to the plaintiff.

The only remaining question is whether the plaintiff is entitled to an action of trespass quare clausum fregit for the loss of the crop. As he had an exclusive interest, I think the action will lie. The case of Crosby v. Wadsworth, 6 East, 602, was an action of trespass quare c/ausum fregit, and the court of K. B. held that the action was proper if the plaintiff had made out his alleged interest, which was to the exclusive enjoyment of a growing crop of grass, and to the right to cut and carry it away. The general language of the authorities is to this effect that the grantee vesturae terrae or herbagii terrae, may maintain trespass, though he has not the soil. Co. Litt. 4b; Com. Dig., tit. Trespass, B. 1. There are numerous authorities which support the general position, and which are referred to in Crosby v. Wadsworth, and in 1 Chit, on Plead. 176, 177.

The court are, accordingly, of opinion that the plaintiff is entitled to judgment.