This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
It is a general rule that if one's estate in land comes to an end at a time which he could not have previously ascertained, without his fault and without any action on his part to bring about such a result, he is entitled to take the annual crops planted by him before the termination of the estate.1 This right is ordinarily referred to as the right or doctrine of "emblements," and is based upon the justice of assuring to the tenant compensation for his labor, and also upon the desirability of encouraging husbandry, as a matter of public policy.
The fact that one had done work on the land in the nature of plowing or manuring, before the termination of his tenancy, does not, if he has not actually sown the crop, entitle him to assert any claim to the crop subsequently grown.2
97. Ante, this section, note 93.
98. Drake v. Wells, 11 Allen (Mass.) 141; Fletcher v. Livingston, 153 Mass. 388, 26 N. E. 1001; Banton v. Shorey, 77 Me. 48; Rich-bourg v. Rose, 53 Fla. 173, 125 Am. St. Rep. 1061, 12 Ann. Cas. 274, 44 So. 69; Fish v. Cap-well, 18 R. I. 667 25 L. R. A. 159, 49 Am. St. Rep. 807, 29 Atl. 840.
99. Benjamin, Sales, Sec. 126;
Mechem, Sales, Sec. 342; Willistoa, Sales, Sec. 62.
1. Co. Litt. 55b; 2 Blackst. Comm. 123. See Sornberger v. Berggren, 20 Neb. 399, 30 N. W. 413; Bittingei v. Baker, 29 Pa. 66, 70 Am. Dec. 154; Davis v. Brocklebank, 9 N. H. 73.
2. Bro. Abr., Emblements, pl. 7; Kingsbury v. Collins, 4 Bing. 202; Price v. Pickett, 21 Ala. 741;
The tenant entitled to emblements has the right of ingress to and egress from the premises for the purpose of harvesting and taking away the crops.3 Be also has the right to go upon the premises for the purpose of doing such cultivation as may be necessary.4 He has not, however, the right of exclusive occupation.5
- Things which are the subject of the right. The right to emblements is confined to those things which yield an annual profit. It the lessee "plant fruit trees, or young oaks, ashes, elms, etc., or sow the ground with acorns, etc., there the lessor may put him out notwithstanding, because they will yield no present annual profit."6 "The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit, but it is otherwise of fruit trees, grass and the like, which are not planted annually at the expense and labor of the tenant, but are either a permanent or natural profit of the earth. For when a man plants a tree he cannot be presumed to plant
Reeder v. Sayre, 70 N. Y. 180, 26 Am. Rep. 567; Stewart v. Doughty, 9 Johns. (N. Y.) 108; Thompson's Adm'r v. Thompson Ex'r, 6 Munf. (Va.) 514.
3. Litt. Sec. 68; Co. Litt. 56 a; Simpkins v. Rogers, 15 111. 397; Reilly v. Ringland, 39 Iowa, 106; Brown v. Thurston, 56 Me. 126 96 Am. Dec. 438; Towne v. Bowers, 81 Mo. 491; Davis v. Brockle-bank, 9 N. H. 73; Van Doren v. Everett, 5 N. J. L. (2 Southard) 460, 8 Am. Dec. 615; Reeves v. Hannan, 65 N. J. L. 249, 48 Atl. 1018; Stewart v. Doughty, 9 Johns. (N. Y.) 108.
4. Bevans v. Briscoe, 4 Har. & J. (Md.) 139; Den d. Humphries v. Humphries, 25 N. C. (3 Ired. Law) 362; Edghill v. Mankey,
79 Neb. 347, 11 L. R. A. (N. S.) 688, 112 N. W. 570.
5. Den d. Humphries v. Humphries, 25 N. C. (3 Ired Law) 362; Edghill v. Mankey, 79 Neb. 347, 11 L. R. A. (N. S.) 688, 112 N. W. 570; Smith, Landl. & Ten. (3d
Ed.) 404; 1 Williams, Executors (9th Ed.) 632. See Stoddard v. Waters, 30 Ark. 156. But In Bevans v. Briscoe, 4 Har. & J. (Md.) 139, it is said that "the reversioner is not entitled to the occupation of the lands on which a crop is growing until that crop is taken off, or a reasonable time is given for taking it off." And see Griffiths v. Paleston, 13 Mees. & W. 358.
6. Co. Litt. 55b.
Hops, though they grow from ancient roots, have been regarded as "like emblements," because they grow "by the manurance and industry of the owner,"12 that is, "the labor and expense, without which they would not grow at all, seems to have been deemed equivalent to the sowing and planting of other vegetables."13 The same theory has been applied in this country with regard to crude turpentine forming on the body of the tree, usually known as "scrape."14
The doctrine of emblements applies to "a crop of that species only, which ordinarily repays the labor by which it is produced, within the year in which that labor is bestowed, though the crop may, in extraordinary seasons, be delayed beyond that period."15
7. 2 Blackst. Comm. 123.
8. 1 Williams, Executors (9th Ed.) 620, 624
9. 1 Williams, Executors, 625; Reiff v. Reiff, 64 Pa. 134.
10. 1 Williams, Executors, 625; Graves v. Wells, 5 Barn. & Adol 103.
11. 11. Craig v. Dale, 1 Watts & S. (Pa.) 509, 37 Am. Dec. 477. The case involved the right to the straw as a part of the away-going crop, but the principles asserted by the court would apply to the right of emblements
12. Latham v. Atwood. Cro. Car. 515.
13. Graves v. Weld, 5 Barn. & Adol. 105, 119.
14. Lewis v. McNatt, 65 N. C. 65. Compare Florala Sawmill Co. v. J. T. Parrish, 155 Ala. 462, 46 So. 461.
15. Graves v. Weld, 5 Barn. & Adol. 105.
A tenant who has taken one crop from a single sowing cannot, alter the tenancy has come to an end, take a second crop from the same sowing, although he has applied additional labor to make the second crop.16
- Persons entitled. The doctrine of emblements is applied when a life tenant plants crops and dies before they are gathered, his personal representatives being in such case entitled to the crops.17 A tenant pur autre vie may take the crops upon the death of the cestui que vie.18
One holding under a lease from a life tenant is entitled to the benefit of the rule. Thus, if a life tenant, after making a lease, dies before the end of the term thereby created, the lessee is entitled to take the crops as against the remainderman,19 and he is so entitled when the lessor's estate comes to an end by the latter's own act, though the lessor himself would not have been entitled in such case to crops planted by himself.20