Summary
On Exceptions from the District Court, Cole, J., presiding.
Trespass quare clausum, originally commenced before a justice of the peace. On facts agreed. Plea the general issue. , •
It appeared that the defendants entered upon the grass land in possession of one Morse, under whom the plaintiff claims, and took and carried away the hay thereon. Morse had possession of the farm under a lease from Paul Adams, which lease, before the taking of the hay, had expired. Previously to the alleged trespass, Adams had notified Morse in writing to quit the premises. While Morse was in possession, after Ms lease had expired, he let a portion of the grass standing thereon to the plaintiff, to be cut on shares. Part of it was cut by plaintiff under this agreement and left by him in the field. The defendants, as the agents and by the direction of said Adams, in the presence of two witnesses, peaceably entered'upon the premises for the purpose of talcing and holding possession of the same, but Morse did not give his consent to such entry. The defendants, after such entry, took and carried away the hay sued for, by the direction and as the servants of Adams.
If the Court, on this statement of facts, should decide that the action was maintainable, judgment was to be rendered for the amount fixed by the justice and legal costs, otherwise the plaintiff to become nonsuit and costs for defendants.
On this agreed statement, the presiding Judge was of opinion that the action was maintainable, and ordered judgment for the plaintiff. To which opinion the defendants excepted.
A copy of the lease and also of the notice to quit were to be put in with the facts, but were not furnished to the Court.
argued that, by the statement of facts, it appears that Morse had no legal right to sell the grass,- the plaintiff therefore acquired no right by his purchase. His entry and cutting were a trespass.
Title, right of possession-and actual possession," were in Adams, by whose directions and authority the defendants acted, at the time of the cutting of the grass, and the severance of the grass from the freehold, gave no more right or property in the grass to the plaintiff, than he would have acquired in timber or wood, if he had felled trees. Davis v. Thompson, 13 Maine, 209; King v. Fowler, 14 Pick. 238. In Mayo v. Fletcher, 14 Pick. 525, the Court say, “ a' mortgagee, having never entered, cannot maintain trespass quare clausum fregit, against a person entering and occupying by permission of the mortgager before condition broken and holding over after breach.” In the present case the condition had.been broken and entry made by mortgagee, and he could have maintained trespass against the plaintiff; consequently he or his servants cannot be liable to the present action.
1. “Lessee for a year, holding over, becomes tenant at "will.” Bennett v. Whipple, 12 Maine, 346.
“In the case of a tenancy at will, the crops belong to the tenant.” Sherburne v. Jones, 20 Maine, 10; Bailey v. Fillebrown, 9 Mass. 12. .
“ Where a tenancy at will is determined by the lessor, the tenant is entitled to the emblements.” Davis v. Thompson, 13 Maine, 209.
Mo-rse, being tenant at will on the premises, had a right to the crops, and consequently a right to sell the grass growing on the same, and the plaintiff having rightfully bought the grass growing on the premises, and the same being converted into hay, there was such a severance from the freehold as to leave the hay sued for personal property in the hands of the plaintiff.
The sale of grass, from Morse to the plaintiff, carried with it the incidental right to enter upon the premises, cut the grass, and carry away the hay made from the same.
2. The entry made by the lessor cannot defeat the action.
1. Beause there is no statute provision by which a lessor can gain a possession by “ entering in the presence of two witnesses,” the statute remedy being by R. S., c. 128, an action of forcible entry and detainer.
2. An entry in the “presence of two witnesses,” is a remedy secured solely to mortgagees, to gain possession of mortgaged premises, after condition broken.
3. To make a legal entry, by a mortgagee, in the “presence of two witnesses,” it must be “ peaceably” and “ openly” made, and “not opposed.” In this case, Morse, the tenant, did not consent to the entry, consequently, if it had been made by a mortgagee it would be an unlawful entry. R. S., c. 125, § 3.
4. The grass, having been severed from the freehold, no longer attached to the soil, and the lessor could not in a legal entry reclaim the same as a part of the freehold.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
