100 Am. Dec. 415; Messinger v. Union Warehouse Co. 39 Ore. 546, 65 Pac. 808; Jones v. Chamberlin,

5 Heisk. (Tenn.) 210 (semble); Mead v. Owen, 80 Vt. 273, 12 L. R. A. (N. S.) 655, 67 Atl. 722; Lowe v. Miller, 3 Gratt. (Va.) 205, 46 Am. Dec. 188.

48h. Tinsley v. Craige, 54 Ark. 346, 15 S. W. 897, 16 S. W. 570; Baughman v. Reed, 75 Cal. 319, 7 Am. St. Rep. 170, 17 Pac. 222; Ferrall v. Kent, 1 Gill (Md.) 209; Johnson v. Hoffman, 53 Mo. 504; Carr v. Dodge, 40 N. H. 403; Cooper v. McGrew. 8 Ore. 327; Fagav v. Vogt, 35 Tex. Civ. App. 528, 80 S. W. 664; Bradley v. Arnold, 16 Vt. 382; Fuhrman v. Interior Ware House Co. Wash. 116. Pac. 666.

We will consider this question, of the existence of a tenancy in common in the crops, firstly, on the theory that the agreement does not involve a demise of the land, creating the relation of landlord and tenant. If the agreement in such case be regarded as one of hiring, making the cultivator the servant of the landowner, a view quite frequently asserted,48j it is difficult to understand how the share of the crops which is to be delivered to the cultivator as wages can, before such delivery, be regarded as belonging to him. He has, it would seem, a mere contractual right against the landowner. That one thus employed to cultivate the land for a share of the crops has no proprietary interest therein is recognized in a number of cases.48k If, however, instead of regarding the cultivator as the servant of the landowner, we regard the two as parties to a joint adventure, as has occasionally been suggested,48l they may well be joint owners or tenants in common of the crops. This would be in accordance with a principle which has been recognized in other connections,48m article; (3) the intention of the person making the annexation. The later cases usually regard the consideration of intention as, in theory, the controlling one, referring to the mode of annexation and the character of the article merely as evidence upon this question of intention.54 Unfortunately, the courts are not entirely clear, nor are they consistent, in their statements as to the nature of this intention, and the facts from which it is to be inferred. In a leading case,55 which is frequently quoted and referred to in connection with the law of fixtures, it is said that the intention is to be inferred "from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made."56 And so it is in effect said in other cases

48i. See Pruitt v. Ellington, 59 Ala. 454; Knox v. Marshall, 19 Cal. 617: McClure v. Thorpe, 68 Mich. 33, 35 N. W. 829; Schmitt v. Cassilius, 31 Minn. 7, 16 N. W. 453; Consolidated Land & Irr. Co. v. Hawley, 7 S. D. 229, 63 N. W. 904.

48j. See ante, this section at note 48b.

48k. Gray v. Robinson, 1 Ariz. 24, 33 Pac. 712; Bryant v. Pugh, 86 Ga. 525, 12 S. E. 927; Chase v. McDonnell, 24 111. 236; Gifford v. Meyers, 27 Ind. App. 348, 61 N. E. 210; Richards v. Wardwell, 82 Me. 343, 19 Atl. 863; Delaney v. Root, 99 Mass. 546, 97 Am. Dec. 52 {semble); Porter v. Chandler, 27 Minn. 301, 38 Am. Rep. 293, 7 N. W. 142; Patten v. Heustis, 26 N. J. Law (2 Dutch.) 293; Tanner v. Hills, 48 N. Y. 662 (semble); Cole v. Hester, 31 N. C. (9 Ired. Law) 23; Huff v. Watkins, 15 S. C. 85, 40 Am. Rep. 680; Kelley v. Rummer-field 117 Wis. 620, 98 Am. St. Rep. 951, 94 N. W. 649.

481. See ante, this section, at note 48c.

48m. Freeman, Cotenancy & Partition, Sec. 94; Beaumont v. Crane, 14 Mass. 400; White v. Brooks, 43 N. H. 402; Sheldon v. Skinner, 4 Wend. (N. Y.) 525, 21 Am. Dec. 161; Boylston Ins. Co.

As regards the existence of a tenancy in common in the crops when the relation of landlord and tenant exists between the owner of the land and the cultivator on shares, the cases are by no means in unison. As before stated,48p there are a number of decisions in which the landlord and tenant have been regarded as tenants in common of the crop. But there are perhaps even more cases in which the two relations are regarded as inconsistent, for the reason that crops regularly belong to the tenant, and the share of the crop which is eventually to go to the landlord is in the nature of rent, and the fact that an article is to be delivered in payment of rent cannot make it the property of the landlord until it is delivered or "rendered" to him.48q Regarding the landlord's share of the crop, v. Davis, 68 N. C. 17, 12 Am. Rep. 624; Thomas v. Morrison (Tex. Civ. App.) 46 S. W. 46.

48n. 1 Mechem, Sales, Sec. 342; Williston, Sec. 135; 8 Am. & Eng. Encyc. Law (2nd Ed.) 311.

48o. Benjamin Sales, Sec. 126; 1 Mechem, Sales, Sec. 342.

48p. Ante, this section, note


48q. Smyth v. Tankersley, 20 Ala. 212, 56 Am. Dec. 193; Ponder v. Rhea, 32 Ark. 435; Clarke v. Cobb; 121 Cal. 595, 54 Pac. 74; Taylor v. Coney, 101 Ga. 655, 28 S. E. 974; Dixon v. Niccolls, 39 111. 372, 89 Am. Dec. 312; Chicago & W. M. R. Co. v. Linard, 94 Ind.

Real Property.

[Sec. 265 in the particular case, as rent to be rendered or paid to him, the view asserted in these cases, that the whole crop in the first place belongs to the tenant, seems on principle entirely sound. The view has been taken however, in one jurisdiction at least,48r that such a provision that the landlord shall have a share of the crop is to be regarded, not as a reservation of rent, but rather as an exception, out of the operation of the lease, of such proportion of the future profits of the land, these future profits being a proper subject for an exception, as they are for a grant,48s and, in support of this view, attention was at the same time called to the statement of the common-law writers that part of the profits of the land cannot be reserved as rent.48t This view of the provision for a sharing of the crops, as constituting an exception from the thing demised, and not a reservation of rent, and as consequently vesting an undivided interest in the crops in the landlord as they come into existence, would seem, in the majority of cases, to be a reasonable one, though so to regard the provision when the lease expressly states that the landlord's share is to be paid to him "as rent" would seem to involve considerable latitude of construction. It is on such a theory that the numerous cases recognizing a tenancy in common in the crops48u may perhaps best be supported. In the last analysis, however, the question in every case would seem to be, what was the in319, 48 Am. Rep. 155; Howard County v. Kyte, 69 Iowa, 307, 28 N. W. 609; Holderman v. Smith, 3 Kan. App. 423, 43 Pac. 272; Richards v. Wardwell, 82 Me. 343, 19 Atl. 853; Warner v. Abbey, 112 Mass. 355; Betts v. Ratliff, 50 Miss. 561; Reeves v. Hannan, 65 N. J. Law, 249, 48 Atl. 1018; Peebles v. Lassiter, 33 N. C. (11 Ired. Law) 73; Ream v. Harnish, 45 Pa. 376; Magill v. Holston, 65

Tenn. (6 Baxt.) 322 (semble); Texas & P. R. Co. v. Bayliss, 62 Tex. 571; Hurd v. Darling, 16 Vt. 377.

48r. See opinion of Bell, J., in Moulton v. Robinson, 27 N. H. 550.

48s. Ante, this section, at note 48n. 48t. Post Sec. 403.

48u. See ante, this section, at note 48h.

Tention of the parties, as indicated by the language used.48v act of another in annexing it.51 There are also occasional decisions and dicta to the contrary, that the owner-ship of the chattel is not affected by such wrongful annexation, provided at least it is not so closely incorporated with the realty that the latter will be injured by its removal.52 These latter cases appear to accord with the spirit of the decisions hereafter referred to,53 in which the interest of one other than the landowner, in a chattel of which the latter is given possession, is protected in spite of its annexation to the land provided this is with such other's express or implied consent. If one's rights in a chattel can be preserved by agreement, in spite of its annexation to another's land with his consent, it seems reasonable that his rights be preserved when the annexation is by a wrongdoer without his consent.