Deltenre v. Deltenre

JOHNSON, J. This is an action for waste. At the conclusion of the evidence of plaintiff the jury returned a verdict for defendant in obedience to a peremptory instruction from the court and, after unsuccessfully moving for a new trial, plaintiff appealed. Defendant sold a farm to plaintiff January 21, 1910, and on the same day plaintiff leased the farm to defendant for a term ending October 21, 1910, for a rental of seventy-five dollars in money and one-sixth of the crops. There was a vineyard on the farm and a crop of young grape plants which were still attached to the parent vines. Plaintiff did not reserve this crop in the contract of letting and in the following- March, defendant severed the new plants from the parent vines, dug them up and appropriated them to his own use. Plaintiff, contending this was waste, sued for treble damages, under the provisions of section 4140, Revised Statutes 1899 (now sec. 7913, R. S. 1909). The evidence shows that in the spring of 1909, defendant, then the owner of the vineyard began the propagation of the crop of new plants. O'ne year old canes were laid down across the rows and covered with dirt, new plants sprouted from these canes and, in time, became rooted in the ground. When strong enough to live without sustenance from the parent vine, they were ready to be severed and transplanted. They might have been severed in the fall of 1909, but were left attached until the following spring, to give them greater strength and vitality. It was necessary to sever and transplant them in the spring both for their' own good and that of the vineyard. They were a crop that matured at the time they should be separated from their parents. [491] They were personal property, fructus industriales, just as pendant apples are personalty when they are ripe and should he gathered. “Waste,” says Ellison, J., in Davis v. Clark, 40 Mo. App. 515, “is that which does a lasting damage to the freehold or inheritance and tends to the permanent loss of the owner in fee, or to destroy or lessen the value . of the inheritance.” The removal and appropriation by the lessee of a matured crop, whether rightful or wrongful is not waste as it does no injury to the inheritance. Since the young plants were not intended to be left where they were propagated, but to be removed and transplanted, they did not belong to the inheritance, but as we have shown, were personaltv. The learned trial judge properly concluded that thé action must fail. The judgment is affirmed. All concur.