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