Jordan v. Staples

Dickerson, J. Trespass for breaking and entering plaintiff’s close, and carrying away his hay. The title to the premises was in the plaintiff who had leased them to one Isaac Harmon before the alleged trespass was committed. Harmon sold the hay to the defendants. By the terms of the lease of the premises, the lessee was “ to yield and pay therefor one-half of all the proceeds raised or grown upon said farm, to be delivered unto the lessor’s dwelling-house at the time of harvesting.” Subsequent provisions of the lease, however, render it clear that the parties did not intend to include the hay in “the proceeds” named in the lease. These required the lessee “ to cut and put into Jthe barns all the hay,” authorized the lessor to reduce the stock on thelfarm, during the winter, to the amount of the hay that the place might furnish for their keeping, bound him to furnish all the hay, if any should be needed to keep out the stock in the spring, and entitled him to the hay left on the plaee at the expiration of the lease. The lessor agreed to furnish [355] stock for tlio place, under tlie stipulation, that the hay cut thereon should be fed out to such stock. In respect to the hay, the lessee was simply the servant of the lessor, and had no title to it whatever. The case is clearly distinguishable from the common one of “ letting a farm on shares,” as it is termed, where the property in the crops is in the lessee until they are divided. The lessor reserved the right of occupying the premises attached to the property leased, as he had before done under a lease to one Downs. It appears from the testimony, that, pending that lease, the lessor was in possession of the barn where the hay in controversy was put, and that he held such possession under the lease to Harmon. The plaintiff was thus the owner, and in possession of the hay. The declaration iii the writ sets forth in one count that the defendants “broke and entered the plaintiff’s close, and took and carried away his hay,” &c. The counsel for the defendants argues that this is not a sufficient count in trespass de bonis asportatis to entitle the plaintiff to maintain this action. The cases cited by the learned counsel render it clear that such a declaration cannot be supported by simply proving a trespass in taking and carrying away the goods, though it would be good upon the further proof of a breach of the close. In the case at bar such proof is furnished. The plaintiff testifies that the defendants took the hay from the barn, and hauled it away; that they cut it down with a hay-cutter; that he forbade them; . . . that “ they told him he liad forbidden them enough ; they had bought the hay, and were able to pay for it, if they had not bought it of the right man.” There is some conflict of testimony as to the quantity and value of the hay; but wo think the plaintiff is entitled to recover one hundred and twenty-five dollars, and that judgment should bo rendered in his favor for that amount. Appleton, G. J.; Walton, Barrows, Danforth, and Tapley, JJ., concurred.