(dissenting).
I respectfully dissent. The doctrine of emblements should be applied in this case. Tendered, as part of my rationale, is SDCL 43-8-6, which provides:
A tenant for years or at will, unless he is a wrongdoer by holding over, may occupy the building, take the annual products of the soil, work mines and quarries open at the commencement of his tenancy, and cultivate and harvest *532the crops growing at the end of his tenancy.
This statute, South Dakota’s partial codification of the common-law doctrine of em-blements, formerly numbered SDC 38.0405, was interpreted in Bolzer v. Hamilton, 78 S.D. 388, 103 N.W.2d 183 (1960):
The doctrine or right of emblements entitles one who holds land for a period subject to termination at a time which he cannot ascertain beforehand to remove from the land after the termination of his tenancy the annual crops or emblements which he has planted thereon prior to such termination, if the termination is brought about without any fault on his part or without any act of his intended to bring about such a result.
Bolzer, 78 S.D. at 394, 103 N.W.2d at 186. This right is premised on the justice of assuring the tenant compensation for his labor and the desirability of encouraging husbandry as a matter of public policy. Strand v. Boll, 44 S.D. 228, 231, 183 N.W. 284, 285 (1921). Strand applied the common law doctrine of emblements to life tenants’ estates, which are beyond the reach of our statute. The rationale of Strand is reflected in recent caselaw: “The reason a tenancy of uncertain duration is required is that a tenant for a fixed term is able to plant his crop with knowledge as to when the term will end.” Gallager v. Nelson, 383 N.W.2d 424, 426 (Minn.App.1986). “A tenancy of indefinite duration is ‘subject to termination on the happening of a future event.’” Gallager, id.
The future event, in this case, was Gerken’s potential sale of the property, which was purely hypothetical when the Hydes, with Gerken’s permission, planted their crops. The trial court, in finding of fact No. 7,* held, inter alia, that “Eileen Gerken did agree that winter wheat could be planted in case the real estate was not sold.” This finding, combined with Gerken’s February 25, 1987, signature on plaintiff’s exhibit No. 3, a document required for participation in a federal agricultural program, indicates that the Hydes were, in fact, Gerken’s tenants, raising their crops on her land with her knowledge and permission. They were not holding over wrongfully, in terms of SDCL 43-8-6. The relationship between the Hydes and Gerken created a right to emblements which the Hydes can enforce:
Since the tenancy was terminated by the occurrence of an uncertain event, the sale of the land, plaintiffs were entitled to the crops they had nurtured prior to the termination under both common law and the [] emblements statute.
Falk v. Amsberry, 279 Or. 417, 423, 569 P.2d 558, 561 (1977). Tenants at sufferance, who hold over after a tenancy for years, are entitled to emblements if their landlord recognizes their tenancy for an additional period. See Lewis v. Lewis Nursery, Inc., 80 N.C.App. 246, 342 S.E.2d 45, 48 (1986). Here, the period was as in Falk, uncertain. Therefore, the emblements doctrine applied. Under either common law, as interpreted in Strand, or our emble-ments statute, as construed in Bolzer, the Hydes were entitled to the fruits of their labor, their crop. Their hard work, not the power of nature, produced fructus industr-iales, as emblements were known in the common law. See Black’s Law Dictionary, 341 (5th Abridged Ed.1983). The majority’s award of seeding costs does not eliminate unjust enrichment on these facts. As Littleton wrote, in 1480:
Yet if the lessee soweth land, and the lessor, after it is sown, and before the corn is ripe, put him out, yet the lessee shall have the corn, and shall have free entry, egress, and regress, to cut and carry away the corn....
Littleton’s Tenures, Book I, ch. VIII, § 68 (Wambaugh ed. 1903) (quoted in Falk v. Amsberry, 569 P.2d 558, 559-60 n. 2 (Or. 1977)).
*533If Gerken consented to Hydes planting the wheat, would this Court permit:
(a) Gerken to have the bounty of Hydes’ seed and labor?
(b) A total stranger, Scott, to make off with the wheat crop?
What kind of justice is this?
Hydes are not coolies. To give them the price of their seed wheat and an award of labor at a “custom rate” is to deny them an entrepreneurial existence. Once Gerken consented to their planting the winter wheat, the wheat crop and possession of the land was theirs. Hydes had the right to exercise ownership over their wheat crop. Gerken simply wanted to ride two horses. She wanted:
(a) to have the property in production; and
(b) to sell it, also.
She cannot have it both ways.
Finding of fact No. 7: That a conversation between Hydes and Gerken took place sometime in September of 1986 concerning planting of winter wheat. There was a discussion about planting of some wheat, but there was not a meeting of the minds as to an extension of the lease. The Court concludes that Eileen Gerken did agree that winter wheat could be planted in case the real estate was not sold.