Lewis v. . McNatt

Dick, J. Crude turpentine which has formed on the-body of the tree, and is usually known as “ scrape,” is personal property, and belongs to the person who has lawfully produced it by cultivation. State v. Moore, 11 Ire. 70. It is an annual product of labor and industry, and although it adheres to the body of the tree it is not a part of the realty. The turpentine crop may be properly classed with fnidusindustriales, for it is not the spontaneous product of the trees, but requires annual labor and cultivation. Upon a-similar principle, hops which spring from old roots have long-been regarded as emblements. A lessee of turpentine trees, even after the expiration of his lease, has the right of u entry, egress and regress” to remove the “ away going crops” which he has produced by his labor, provided he does so within reasonable time. He has a right to the occupation of the premises for that purpose, and if this right is refused by the owner of the land, the. lessee is entitled to recover the value of the property detained. Brittain v. McKay, 1 Ire. 265. The scrape must be removed before the sap begins to flow-in the subsequent spring, for then the new turpentine mingles with the old “ scrape” which cannot be taken away without interfering with the rights of the owner of the trees. In this case, it appeared, that the lease of the plaintiff had terminated, but there was no evidence as to the time when he entered for the purpose of removing the scrape. The charge of his Honor was, therefore, too general in its. terms, as the plaintiff had no right of entry afterathe new turpentine had begun to flow, and for this error there must be a venire de novo. *66 The question of pleading raised on the trial by the defendant’s counsel is attended with some difficulty on account of the change in our system of procedure. At common law in actions in form ex delicto, and which are not for the breach of a contract, if a party who ought to join, be omitted, the objection can only be taken by a plea in abatement, or by way of apportionment of damages on the trial; and the defendant cannot, as in actions in form ex contractu, give in ■evidence the non-joinder as a ground of non-suit on the plea of the general issue. 1 Chitty, P. 76. Under the C. C. P., sec. 8, par. 1, all civil actions pending in the Courts when the present Constitution was approved by Congress, and which were not founded on contract, are to be governed by the C.C. P., “as far as may be according to the state of the progress of the action, and having regard to its subject and not to its form.” A different provision is made as to actions founded upon contracts made previous to the C. C. P. Merwin v. Ballard, at this term. The C. C. P., sec. 62, provides that the parties who are united in interest must be joined as plaintiffs or defendants, &c. If a necessary party to an action be omitted, and the defect appears upon the face of the complaint, the non-joinder must be taken advantage of by demurrer. C. C. P., sec. 95. If it does not appear upon the face of the complaint the objection may be taken by answer. C. C. P., sec. 98. “ If ’ no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same.” C. C. P., sec. 99. It does not appear from the transcript at what term of the Court the issues were joined in this case, and the defendant might have put in a plea in abatement at any time before pleading in bar of the action. If the issues were not joined when the case was transferred to the Superior Court, he would have been entitled to have objected to the non-joinder of a necessary party by answer, as the defect does not appear in the pleadings. As the defendant *67 went to trial without taking any such objection, the charge of his Honor must be sustained. Venire de novo awarded. Let this be certified. Pee Cueiam. Venire de novo.