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