Lead Opinion

Letting of land upon share — Trespass qu. cl. not maintainable by landlord during continuance of term. In Moulton v. Robinson, 27 N.H. 550, there is an elaborate discussion, by BELL, J., of the contract of letting land upon shares, and the relation thereby established between the parties with respect to the right of possession, both of the land itself and of the crops raised upon it during the term. The general conclusions there reached are, that the contract puts the parties in the relation of landlord and tenant; that as to the crops to be divided, they are made tenants in common, and as to the land, the exclusive right of possession is vested in the tenant. On page 557 he says, — "The effect of these views may be seen in the two most common cases of contracts relating to land, where they seem applicable. The first is the ordinary case of letting on shares. There, we hold, that the lessee is properly a tenant, having, ordinarily, as against his landlord as well as others, the possession of the land, and the rights growing out of that relation." He shows that great diversity exists in the opinions of courts who have decided cases *Page 544 of this sort, but finally adopts, in substance, the propositions stated above as the most satisfactory basis upon which the rights of parties growing out of such contracts can be determined.

Upon a careful reading of the contract between the plaintiff and Philbrick in this case, I am unable to doubt that, so far as regards the respective rights of the parties to possession of the land, it is to be regarded as no more nor less than the ordinary contract of a letting upon shares. All its stipulations are consistent with a general possession and occupation of the land by the tenant, and inconsistent with such possession by the lessor. It is true, there are stipulations as to how the farm shall be carried on, and an exception as to the west half of the farmhouse and one half of the carriage-house, as well as of the wood and its growth. But these exceptions clearly imply that as to the rest the right of possession was transferred to the lessee; and it seems to me that by no fair construction of the whole instrument, read together in the light of Moulton v. Robinson, can it be held that the right of possession, as to the premises not excepted, remained in the plaintiff. This brings us to the question, whether the landlord can maintain all action of trespass quare clausum fregit, for an entry upon and injury to the land during the term. It is undoubtedly true that the authorities upon this point outside of this state are conflicting and unsatisfactory. It is sufficient, perhaps, to refer to the cases of Starr v. Jackson, 11 Mass. 519, Campbell v. Arnold, 1 Johns. 511, Tobey v. Webster, 3 Johns. 468, and the cases referred to by BELL, J., in Moulton v. Robinson, supra, pp. 558, 559. But however the authorities may stand in other jurisdictions, I think the question is to be regarded as settled in this state adversely to the plaintiff in Anderson v. Nesmith, 7 N.H. 167, followed by Robertson v. George, 7 N.H. 306. In the former case, both the New York and Massachusetts decisions are referred to and commented on, and the New York doctrine approved and adopted. In the latter, while it was held to be the general rule that a landlord cannot maintain trespass for an entry upon land while in the occupation of a tenant, it is left upon a quaere whether such form of action is in fact proper, even where all injury of a permanent character has been done to the reversion. In Anderson v. Nesmith the court say, — "Upon the whole, we have been unable to reconcile the right of a lessor for years to sustain trespass while his lessee is in possession, with the principle that actual possession is necessary to maintain such action."

The doctrine of such cases as Cox v. Glue, 5 C. B. 533, resting upon the principle stated by Coke (Co. Litt., 4 b.), might have application in cases of this sort, were it not held in this state that a letting upon shares amounts to something more than a grant of the restrenam terrae, namely, a demise of the land itself. Moulton v. Robinson, supra. I am unable to see how it can be held that the plaintiff may recover in this form of action upon the facts stated, without overruling cases that have long been regarded as the settled law of this state.

If I am correct in this view, any discussion of the rule of damage to be applied would be premature. *Page 545

Concurrence Opinion

Whether the contract between the plaintiff and Philbrick, which they in the last sentence called a lease, and in which the relation established between them is called a tenancy, and in which Philbrick is called a tenant, be or not a letting upon shares, it seems to me that Philbrick, under this contract, had the right to the possession of the land, excepting so much of it as was expressly reserved to the plaintiff; and I do not see that the term "exclusive," applied to the use which the plaintiff reserved of a part of the premises, at all implies any common possession of the rest. Philbrick could not fulfil his contract, could not have reasonable certainty of doing what he had to do and of avoiding what he was not to do, and of deriving the full benefit which he had a right to expect from his labor and outlay, if his possession was liable to be interfered with by the plaintiff. So, the expression "pay over," applied to the half of the crops or of the money realized from their sale, implies rather all exclusive possession and ownership of the crops which he is to pay, than a tenancy in common of the crops, which, perhaps, would be owned in common when they had been stored, as the contract required, on "joint account."

The tenant, then, being entitled to the exclusive possession, the plaintiff cannot maintain an action for injury to that possession. The close, which is alleged to have been broken, is not the plaintiff's close. Those injuries, for which the plaintiff can recover damages, are such as if done by the tenant would be waste, and when done by a stranger are in the nature of waste. The cases cited by my brother LADD show that in this state the remedy must be by all action on the case, and not by all action of trespass. It has, I think, always been held, that the form of action cannot be changed by an amendment. This is a doctrine for which I never could see any very good reason, but which renders the objection fatal to the plaintiff's action.

SMITH, J. The only question to be considered in this case is, whether the plaintiff, upon the evidence reported by the referee, can maintain trespass quare clausum. I think he cannot. The agreement entered into between the plaintiff and Philbrick is called by them a lease, and, under the authority of Moulton v. Robinson, the relation of landlord and tenant clearly existed between them, and entitled Philbrick to the exclusive possession of the demised premises. Wentworth was not in possession nor entitled to the possession during the term of the lease. The gist of the action is being disturbed in the possession, and unless the plaintiff was in the actual possession at the time the injury was committed, trespass cannot be supported. This is well settled in this state. Lane v. Thompson,43 N.H. 320; 1 Chitty's Pl. 175; 3 Bl. Com. 210; and authorities cited by my brother LADD.

Case discharged. *Page 546