A tenant at will, or his representative, is entitled to the crops planted by such tenant, if the tenancy comes to an end by some providential cause, as by his own death or by that of his landlord, or if the landlord terminates the tenancy,21 but not if the tenant himself

16. Graves v. Weld, 5 Barn. & Adol. 105. This rule was applied, in Hendrixson v. Cardwell, 68 Tenn. (9 Baxt.) 389, 40 Am. Rep. 93, to a case in which the tenant, after taking one crop of oats, "plowed in" the stubble to make a second crop.

17. Co. Litt. 55 b; 2 Blackst. Comm. 122; Hayes v. Wrenn, 167 N. C. 229, 83 S. E. 356. And it is immaterial that he had power to appoint the fee simple and did so. Keays v. Blinn, 234 111. 121, 84 N.

E. 628

18. Co. Litt. 55 b; Bro. Abr., Emblements, pl. 16.

19. Co. Litt. 55 b; Bro. Abr. Leases, pl. 24, Emblements, pl. 6; Edgill v. Mankey, 79 Neb. 347, 11 L. R. A. (N. S.) 688, 112 N. W. 570-Bevans v. Briscoe, 4 Har. & J. (Md.) 139: Bradloy v. Bailey, 56 Conn. 374, 1 L. R. A. 427, 7 Am. St. Rep. 316, 15 Atl. 746.

20. As when one having an estate during widowhood makes a lease and then marries. In such case the lessee is entitled to emblements. Oland v. Burdwick, Cro. Eliz. 460; Debow v. Colfax. 10 N. J. L. (5 Halst.) 128; 2 Blackst. Comm. 124.

21. Litt Sec. 68; Co. Litt 55 b. 56a, terminates it by some voluntary act on his part,22 or if it comes to an end by reason of the termination of the landlord's estate at a fixed time.23

A tenant for years is not ordinarily entitled to emblements, since he knows when the term is to come to an end, and should not plant crops which will not mature before that time,24 but he is so entitled if the tenancy comes to an end, without his connivance or previous knowledge, before the end of the term, as, for instance, when this results from the termination of his landlord's estate by reason of the expiration of the life by which it was measured,25 or by reason of a of the existence of a legal custom to that effect has been denied, on the ground that a custom must be immemorial, and that this is not possible in this country.31 Such a custom would not prevail in opposition to express stipulations of the lease bearing on the subject.32

63a; Oland's Case, 5 Coke 116a; Morgan v. Morgan, 65 Ga. 493; Reilly v. Ringland, 39 Iowa, 106; Brown v. Thurston, 56 Me. 126, 96 Am. Dec. 438; Comm. v. Galatta. 228 Mass. 308, 117 N. E. 343; Towne v. Bowers, 81 Mo. 491; Monday v. O'Neill, 44 Neb. 724, 48 Am. St. Rep. 760, 63 N. W. 32; Howell v. Schenck, 24 N. J. L. S9; Harris v. Frink, 49 N. Y. 24, 10 Am. Rep. 318.

22. Co. Litt. 55 b; Oland's Case, 5 Coke, 116; Oland v. Burdwick,

Cro. Eliz. 460; Chandler v. Thurston, 27 Mass. (10 Pick.) 205.

23. Bristow v. Carriger, 24 Okla. 324, 25 L. R. A. (N. S.) 451, 103 Pac. 596.

24. Litt. Sec. 58; 2. Blackst. Comm. 145; Florala Sawmill Co v. Parrish, 155 Ala. 462, 46 Sc. 461; Rasor v. Quails, 4 Blackf. (Ind.) 286, 30 Am. Dec. 658; Chesley v. Welch, 37 Me. 106; Gos-sett v. Drydaie, 48 Mo. App. 130; Whitmarsh v. Cutting, 10 Johns. (N. Y.) 360; Reeder v. Sayre, 70 N. Y. 180, 26 Am. Rep. 567; Sanders v. Ellington, 77 N. C. 255; Harris v. Carson, 7 Leigh (Va.)

632, 30 Am. Dec: 510.

In Opperman v. Littlejohn, 98 Miss. 636, 35 L. R. A. (N. S.) 707, 54 So. 77, it was held that the tenant was entitled to a crop of cotton planted by him, matured but unpicked when his term came to an end, on the theory that the matured crop was personal property belonging to the tenant, which he could remove after the term as he could other personal property belonging to him. Obviously, in so far as crops in the ground are regarded as the tenant's personal property, the doctrine of emblements is inapplicable. He is entitled to the crops after the end of his tenancy, under such a view, because they belong to him. The view 'hat they are the tenant's personal property for the purpose of enabling him to remove them after his tenancy does not appear to have been asserted elsewhere. See the discusssion in Bagley v. Columbus Southern Ry. Co., 98 Ga. 626, 34 L. R. A. 286, 58 Arr St. Rep. 325, 25 S. E. 638.

25. Co. Litt. 55 b; Bro. Abr.,

Sec. 263]

Rights of Enjoyment.

"special limitation."26 And the landlord may validly stipulate that the tenant for years shall have the right to harvest the crop after the end of the term,27 and he may, it has been in one case decided, by his conduct in inducing the tenant to plant a particular crop, become estopped to deny the right of the latter to harvest such crop after the term.28

Though the doctrine of emblements is not ordinarily applied in favor of a tenant for years after the end of the term, a custom that such tenant shall take his crops, not harvested by him during the term, has been recognized and given effect in several jurisdictions, such a customary right being known as the right to "waygoing (or away going) crops." In England the custom which controls in this respect is that of the particular locality or neighborhood,29 while in several states in this country such a custom in favor of the tenant has been recognized as common to the whole state.30 In one state, on the other hand, the possibility merely holding over his term. If he actually severs the crops, however, he would apparently, in jurisdictions in which a disseisor is regarded as entitled to crops severed by him,38 likewise obtain title to such crops.39

Emblements, pl. 6. The same principle has been applied when, after a husband had leased his wife's land to another, she procured a divorce a vinculo, his estate thus coming to an end, and consequently that of his lessee also. Gould v. Webster, 1 Tyler (Vt.) 409.

26. As when a lease is for years si tamdiu vixerit, and the tenant, after sorting, dies before severance of the crop. 1 Rolle's Abr., Emblements, pl. 12, 127, when the tenancy came to an end by reason of a provision terminating it on notice from the landlord to that effect (Stewart v. Doughty, 9 Johns. [N. Y.] 108) or on a sale by the landlord. Comfort v. Duncan, 1 Miles (Pa.) 229; Pfan-ner v. Stunner, 40 How. Pr. [N.

Y.] 401; Harwood v. William;, 161 Mich. 368, 126 N. W. 475; Toles v. Meddaugh, 106 Mich. 398, 37 L. R. A. 561, 58 Am. St. Rep. 499, 64 N. W. 329.

27. See Hyatt v. Griffiths, 17 Q. B. 505; Caldecott v. Smythies, 7 Car. & P. 808; Stoddard v. Waters, 30 Ark. 156; Hudson v. Porter, 13 Conn. 59; Kelley v. Todd, 1 W. Va. 197.

28. Carmine v. Bowen, 104 Md. 198, 64 Atl. 932.

29. See Wigglesworth v. Dal-lison, 1 Doug. (Mich.) 205; Boras-ton v. Green, 16 East, 71.

30. See Eliison v. Dolby, 3 Penn. (Del.) 45, 49 Atl. 178; Corle v. Monkhouse, 47 N. J. Eq. 73, 20 Atl. 367; Reeves v. Hannan, 65 N. J. L. 249, 48 Atl 1018; Lewis v McNatt, 65 N. C. 63; Stultz v.

It has been decided in England that a tenant from year to year, whose estate is terminated by notice from the landlord, is entitled to emblements, in view of the uncertainty as to whether the landlord will give the legal notice to quit in any year.33 In this country the right of such a tenant to emblements has been denied.34 In one case the rule is asserted to be that he is entitled to emblements which result from his sowing before the receipt of the notice to quit, and not so entitled to crops sown thereafter,35 and this seems to accord with the ordinary rules bearing on the subject.

One who wrongfully retains possession of land after his rightful tenancy under a lease has come to an end, a "tenant at sufferance,"36 has no right to the crops then growing on the land by reason of such retention of possession.37 Were the rule otherwise, a tenant for years could obtain a right to emblements by

Dickey, 5 Binn. 285, 6 Am. Dec. 411; Forsythe v. Price, 8 Watts (Pa.) 282, 34 Am. Dec. 465; Shaw v. Bowman, 91 Pa. 414.

31. Harris v. Carson, 7 Leigh (Va.) 632, 30 Am. Dec. 510. The same view is indicated in Bur-rowes v. Cairns, 2 U. C. Q. B. 288. But in England, it seems, an immemorial custom is not regarded as necessary for this purpose, a common usage of the neighborhood being sufficient. See Senior v Armytage, Holt, N. P. 197.

32 Wigglesworth v. Dallison, 1 Doug. 201, 1 Smith's Leading Cases (11th Ed.) 545, and notes; Boraston v. Green, 16 East, 71. The custom has been regarded as, excluded by a covenant on the part of the lessee to give up the land at the end of the term. Bur-rowes v. Cairns, 2 U. C. Q. B. 288; Kaatz v. White, 19 U. C. C. P. 36.

33. Kingsbury v. Collins, 4 Bing. 202. See Haines v. Welch L. R. 4 C. P. 91.

34. Gosett v. Drydale, 48 Mo. App. 430; In re Steele, 154 N. Y. App. Div. 860,139 N. Y. Supp. 550; Sanders v. Ellington, 77 N. C. 255. In Pennsylvania such a tenant is given the right by custom. Clark v. Harvey, 54 Pa. 142.

35. Reeder v. Sayre, 70 N. Y. 180, 26 Am. Rep. 567.

36. See ante Sec. 68.

37. Doe d. Bennett v. Turner, 7

Sec. 263] priate such overhanging branches, or the fruit thereon, since those belong to the owner of the land on which the tree is planted.48

Rights of Enjoyment.

- Effect of forfeiture by tenant. A tenant whose estate is terminated by his own act or default, as when he is guilty of a breach of condition subsequent and the landlord re-enters therefor, cannot ordinarily assert any right to emblements.40 As has been remarked, under a contrary rule, a tenant, having sown his crop, would have little or no object in complying with his stipulations.41 There are, however, decisions in two states which assert a contrary view, to the effect that the forfeiture of the leasehold does not affect the tenant's right to the crop.42 The termination of a tenant's estate by reason of an act of forfeiture on his part will not usually affect a subtenant's right to harvest his crops.43

Mees. & W. 226; Simpkins v. Rogers, 15 111. 397; Baker v. Mc-Inturff, 49 Mo. App. 505.

3S. That a trespasser or disseisor is so entitled, see Bethea v. Jeffrees, 126 Ark. 194, L. R. A. 1918A, 549, 189 S. W. 666; Johnston v. Fish, 105 Cal. 420, 45 Am. St Rep. 53, 38 Pac. 979; Lindsay v. Winona & St. P. R, Co. 29 Minn. 411, 43 Am. St. Rep. 228. 13 N. W. 191; Jenkins v. McCoy, 50 Mo. 348; Stockwell v. Phelps, 34 N. Y. 363, 90 Am. Dec. 710; Fau!-con v. Johnston, 102 N. C. 26 4, 11 Am. St. Rep. 737, 9 S. E. 394; Wattenberger v Hall. 26 Okla 815, 110 Pac. 911; Lynch v. Sprague Roller Mills, 31 Wash. 535, 99 Pac. 578. Contra, see Liford's Case, 11 Coke, 51 b; Anonymous, Dyer, 31 b, Moore, 24 Dalison, 30; Co. Litt. 55 b; Lane v. King, 8 Wend (N.

Y.) 584, 24 Am. Dec. 105.

39. See Wolcott v. Hamilton, 61 Vt. 79, 17 Atl. 39, to this effect.

40. Co. Litt. 55 b; 1 Rolle's Abr. Emblements, pl. 3; Oland v. Burdwick, Cro. Eliz. 460; Bulwer v. Bulwer, 2 Barn. & Adol. 470; Davis v. Eyton, 7 Bing. 154; Cheney v. Bonnell, 68 111. 268; Kip-linger v. Green, 61 Mich. 340, 1 Am. St. Rep. 584, 28 N. W. 121; Samson v. Rose, 65 N. Y. 411; Myer v. Roberts, 50 Ore. 12 L. R. A. (N. S.) 194, 126 Am. St. Rep. 733, 81, 89 Pac. 1051.

41. Hunter v. Jones, 2 Brewst (Pa.) 370; Id., 7 Phila. (Pa) 233.

42. Collier v. Cunningham. 2 Ind. App. 254. 28 X. E. 341; Koele-v. Phelps, 80 Mich. 466, 45 N. W. 356.

43. Bevans v. Briscoe, 4 Harv. & J. (Md.) 139; Samson v. Rose,

Real Property.

[Sec. 264