dissenting:
By statute, tenant farmers in Illinois are entitled to four months’ notice of the termination of their leases. The statute provides:
“In order to terminate tenancies from year to year of farm lands, occupied on a crop share, livestock share, cash rent or other rental basis, the notice to quit shall be given in writing not less than 4 months prior to the end of the year of letting. Such notice may not be waived in a verbal lease.” (Ill. Rev. Stat. 1979, ch. 80, par. 5.1.)
Because the statute by its own terms is limited to tenancies and does not apply to other arrangements, the first problem here is determining the capacity in which Flowers farmed the 125 acres. To be sure, not all persons who raise crops for another or who assist in the cultivation of crops are tenants:
“It is possible, of course, for a land owner and a farm operator to enter into any type of contract they choose. The contract can create a landlord-tenant relationship, an employer-employee relationship, a partnership or a joint venture.” (United States v. Myra Foundation (8th Cir. 1967), 382 F.2d 107, 110.)
Whether an agreement has created a landlord-tenant relationship is a factual question whose answer depends upon the parties’ intentions. (Wheeler v. Sanitary District (1915), 270 Ill. 461, 469-70, 110 N.E. 605, 609.) The evidence in this case is conflicting but points to the existence of a tenancy from year to year, grounded on the division of the crops between the landlord, Mehroff, and the tenant, Flowers.
The agreement was oral. I would not accord much evidentiary weight to Mehroff’s denial that a landlord-tenant relationship existed. Mehrhoff also said, however, that Flowers had had possession of the tillable acres, 125 in all, on this particular farm. Mehrhoff himself farmed the land during the first three years of his ownership, 1974-1976, with Flowers helping him somewhat during that time, doing certain tasks on a custom basis. The legal nature of the relationship changed after that, however. Beginning in 1977 Flowers worked the land under a crop-share agreement; the two split the proceeds of the crops evenly. Other aspects of his testimony undercuts the trial court’s decision that the arrangement was for personal services and could be fulfilled only by Flowers’ efforts. Mehrhoff conceded that the estate had sufficient labor and equipment to complete the agreement for 1980; presumably, then, Flowers had supplied his own machinery, or at least could have supplied his own, in farming Mehrhoff’s land. Mehrhoff also agreed that he had frequently seen Mrs. Flowers and several other persons helping Flowers.
Mrs. Flowers’ testimony shows the nature of the agreement as well as Mehrhoff’s failure to abide by the terms of the statute. According to her testimony the agreement between Flowers and Mehrhoff required Flowers to plant, cultivate, and harvest the crops and haul them to the elevator where the proceeds were divided. Mrs. Flowers, a hired man, a son, and a son-in-law all had helped Flowers. Mrs. Flowers testified that Mehrhoff did not give an advance notice of his intention to terminate the agreement but instead had merely telephoned her several days after her husband’s death offering to pay for the work already done if she would agree to terminate the lease. She had refused.
A division of crops between owner and worker does not necessarily create a landlord-tenant relationship. (Alwood v. Ruckman (1859), 21 Ill. 200.) Iowa has a statute similar to that of Illinois requiring advanced notice; the Iowa law excludes “croppers” from its protection (Iowa Code §562.5 — .7), who are in effect laborers or hired help. One discussion of this distinction listed the following elements as aids to assessing intent: (1) who lives on the premises, (2) who controls the buildings, (3) who has the right of possession, (4) who furnishes supplies, (5) who divides the crops, (6) the length of the agreement, (7) the extent of the land owner’s control over the operation, and (8) the words used in the agreement if written. Dopheide v. Schoeppner (Iowa 1968), 163 N.W.2d 360, 362-63.
Although the hearing did not produce a comprehensive report on the nature of the dealings between Flowers and Mehrhoff, the evidence shows that Flowers occupied the land as a tenant, not as an employee. The record clearly shows that Flowers had possession of the farm land, divided the crops, and made the important decisions. The agreement had commenced in 1977 after several years of working under a greatly dissimilar agreement.
As a tenancy, the relationship that existed between Mehrhoff and Flowers was governed by the statute regarding termination of farm leases. The next question is whether the statute requires the landlord to give advance notice following the death of his tenant, or whether that death by itself immediately ends the relationship, denying the estate any continuing interest in the land. The trial court did not refer to the statute and characterized the arrangement as a contract for personal service that ended when Flowers died. Section 5.1 was added in 1961; previously, section 5 required written notice 60 days in advance of terminating a lease, applied to all tenancies from year to year, including leases of farmland. (Ill. Rev. Stat. 1959, ch. 80, par. 5.) Section 5 was interpreted as the exclusive method for terminating a year-to-year tenancy. (Willhite v. Schurtz (1920), 294 Ill. 309, 128 N.E. 551; Anderson v. Dodsworth (1920), 292 Ill. 335, 127 N.E. 43; Streit v. Fay (1907), 230 Ill. 319, 82 N.E. 648.) Read v. Estate of Mincks (Iowa 1970), 176 N.W.2d 192, construed Iowa’s advance notice provision and held that the statute applies when the tenant dies, therefore continuing the possession of the land in the estate until the landlord has given the required notice of his intent to terminate the lease.. Read reached this result even though it also held that sharecrop leases are personal service contracts, ordinarily terminated by the death of the party obligated to perform. The statute had been held to be the exclusive method of termination, however, and the court refused to read into it an exception regarding death. I would adopt a similar analysis here for the Illinois statute. I also think this statute applies regardless of the characterization of a sharecrop agreement as a contract for personal service. I therefore would reverse that portion of the trial court’s order denying the estate permission to complete the agreement with respect to the approximately 62 acres planted in soybeans.