34 N.H. 454 | N.H. | 1857
The only question raised by this case relates to the instructions to the jury. The propriety of these depends upon the property of the beans; the right of the tenant to enter upon the leased premises, after his lease has expired, and he has removed from them, to remove his property; the right of a co-tenant to take common property from the possession of his co-tenant; the right to use force in such a case, and upon the proper measure of damages.
It is settled by the court in the case of Moulton v. Robinson, 7 Foster 550, that crops raised at the halves are the common property of the landlord and tenant, until a division is made; lb. 557 ; and this is so considered by the counsel in the argument.
A tenant, though his tenancy is dissolved and he has quit the possession, has the right to a reasonable ingress upon the land, in order to remove his goods and utensils. Comyn’s L. & T. 356; Litt., sec. 69; 2 Blac. Com. 147; 4 Kent. Com. 111; Elliott v. Page, 1 Pick. 49; Com. Dig., Estates, H. 9.
If, therefore, the property here in question was the sole property of the tenant, he would have a clear right to enter on the premises to remove it, within a reasonable time. It does not seem that any question is made as to the reasonableness of the time of returning for the articles here in question.
The abstract right of a co-tenant of personal property to take it from the possession of his fellow, it is not necessary to discuss. For the present purpose it may be only necessary to consider if one co-tenant can maintain trespass against another for taking and carrying away the common property ; and upon this point the law is well settled. It is thus stated by Littleton, sec. 323. “ If two be possessed of chattels personal in common by divers titles, as of a horse, an ox, or a cow, and if the one take the whole to himself out of the possession of the other, the other hath no remedy, but to take this from him who hath done to him the wrong to occupy, &c., when he can see his time,” &c.
A tenant cannot justify the use of force in obtaining possession of his property left on the leased premises. A tenant in common cannot justify the use of force in taking possession of the common property when held by his co-tenant. 3 Black. Com. 4. The entry on the property of another for either purpose, if justifiable, is so by force of a license in law. Any abuse of the power thus given, of which any resort to violence would be clearly an example, makes the party a trespasser db initio. Bennett v. White, 3 N. H. 227; State v. Moore, 12 N. H. 42; Berrin v. Symonds, 11 N. H. 363.
The entry of the tenant for the purpose of taking away his goods, or goods to which he had a right as tenant in common, was justifiable of itself, but when accompanied by violence to the owner of the property, it became a trespass from the first, and the action maintainable for all damage resulting from the tort to the real estate, and from the removal of the common property.
The rule of damages laid down by the court was erroneous. By the judgment in trespass de bonis asportatis the property in the goods carried away becomes vested in the trespasser, and this furnishes a rule as to the damages for such property. The plaintiff is to be compensated for his entire interest, for all that he loses by the operation of the wrong and consequent judgment, and ordinarily no more. The rule prescribed to the jury was the whole value; the plaintiff owned but an undivided half. One tenant in common cannot make a division of the common property without the consent of the other, so as to affect the rights of either. The verdict, being founded on this error, must be set aside, unless the plaintiff shall remit one half the damages assessed by the jury.
Half the damages being remitted by the plaintiff, judgment was rendered on the verdict.
