
    (Eighth Circuit—Lorain Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    JOSEPH H. BALDWIN v. S. CURTH.
    
      Lease of land on shares — Growing crops at termination of termr— Bights of parties—
    fl.) Where land is rented for a term, on shares, with the provision that the tenant should be entitled to his share from crops put in by him and growing at the time of the termination of the lease, the lessor, having entered into possession of the land at the termination of the lease, has no right to plow up a growing wheat field put in by the tenant before the termination of the lease, and his doing so is trespass, for which he is liable in damages.
    
      Same — Computation of lessor’s one-third—
    (2). In the computation of the value of the lessor’s one-third share m the growing crops, the fact that the lessee will be at the expense of cutting and threshing the wheat in harvesting the same, must be considered.
    Error to the Court of Common Pleas of Lorain county.
   MaeviN, J. ’

The case of Joseph H. Baldwin v. S. Curth is a proceeding in error, seeking to reverse the judgment of the court of common pleas; and the case grows out of this state of facts:

Curth brought suit in the court of common pleas, setting out that he leased from Baldwin a farm for a period of two years from the first of April, 1893. A copy of that lease is attached to the petition, and among the provisions in the lease is that certain wheat which was on the ground at the time the term granted by the lease began, should belong to the lessor, Baldwin, who should have a right to take it off, and if Curth,the lessee,should leave any wheat growing upon the ground at the end of his term, which would be the first of April, 1895, he should have the right to harvest it, giving to Baldwin the share which under the custom of the community, the land owner would be entitled to if the wheat was raised upon shares, and the division should be made to him, to be measured by the bushel. He says that he did leave twenty-seven acres of wheat growing upon the land when his term ended on the 1st of April, 1895 — wheat which was sown in the fall of 1894, to be harvested in 1895; that Baldwin shortly thereafter entered upon the premises and plowed up and destroyed twelve acres of this wheat to the damage of Curth and in violation of his rights. Baldwin answers, admitting that the lease was made, admitting that he plowed up some wheat put in by Curth, but says the amount is less by an acre than that complained of; but he says the reason why he did this is because Curth put in more wheat than he had a right to, and that he had destroyed a meadow which he had no right to destroy.

The lease provided that the farming must be done in a proper manner, according to the rules of good husbandry. He says Curth did not carry out that provision of the lease, and he files with his answer a cross-petition in which he ■says that Curth cut down and destroyed three maple trees of considerable value, for which Baldwin should have pay from Curth; that he destroyed a meadow by turning cattle upon it, after Baldwin had seeded it properly to grass, and that he destroyed it; that he permitted certain fence posts to be washed away by high water and that he should pay for these, thus charging Curth with waste in these several ways, and he asks a judgment against. Curth.

The case was tried to a jury, and the jury returned a verdict for the plaintiff in the sum of $98 and some cents. There was submitted to the jury,at the request of the plaintiff, certain interrogatories which were answered. Attention is called to these, because of the fact that some of the law questions are affected by the answers to these questions. (I ought to say a reply was filed to this answer and an answer to this cross-petiticn, in which the plaintiff says it is true that he cut down three trees, but he says he cut them down with the knowledge and consent of the defendant.)

The lease provided that Ourth should have his fire-woods from off the premises, but that he should not cut down, growing trees or timber except by special permission of" Baldwin,

The first of the interrogatories propounded to the jury upon which they were specially to find, reads: “Did the plaintiff cut down the three trees with the knowledge and' consent of the defendant”? And the jury answered “Yes”.

Second: “Is the plaintiff indebted to the defendant on account of any of the claims set forth in the cross-petition of the defendant”? To which the jury answered “No”.

Third: “If the plaintiff is indebted to the defendant on account of any of the claims set up in the cross-petition,, etc.” Of course, there was no occasion to answer this, because the jury had already answered that the plaintiff was not indebted to the defendant on account of any of the claims set up in such cross-petition.

An objection was made upon the trial of this case to the introduction of any evidence under the petition. The claim-is that no cause of action was set out in the petition, The theory upon which that claim is made is, that this is substantially an action of trespass; that the petition shows that Baldwin was entitled to this land which ■ he plowed, and was entitled to its possession in 1895 and that therefore he could not be held for a trespass upon such land; that the damages which Ourth seeks to recover are-simply an incident of that trespass, and unless an action for trespass can be maintained, he cannot recover for such incidental damages.

The case of Brown and others against Lake, found in the 29th of the Ohio State Reports, at page 64, is relied on to' sustain the proposition that the action cannot be maintained.

The syllabus reads:

“In an action to recover damages for unlawfully breaking and entering the dwelling house of the plaintiff and removing, the roof therefrom, whereby the property and family of the plaintiff were exposed to the inclemency of the weather, and the plaintiff became sick, Held: That if the plaintiff fails to prove the trespass, no recovery can be had on account of any of the alleged consequential damages'’.

In that case the suit was brought by a party who was in the occupation of a certain dwelling house, and the suit was against the defendant for going upon the premises and removing the roof for the purpose of making repairs, and for injury to the health of the plaintiff, resulting from the inclemency of the weather which came in,by reason of the removal of the roof. On the trial it turned out that the defendant had a perfect right to enter upon the premises; they were his, and plaintiff had no right there, and the court held that since there was no trespass that could be maintained, no recovery could be had for the injury to the plaintiff’s health.

We think there is a clear case here of trespass under the decision in the case of Wilber v. Paine, 1st Ohio Reports 251. Attention is called here in the argument to Swan’s Treatise, 15th Edition, pages 825 and 826. An examination of these pages seems to establish that Baldwin was a trespasser if the averments of this petition be true.for .although the term ended in April, 1895, the party who put in the crop had a right to protect the crop and harvest it, and may maintain trespass against the owner for coming in upon it. We think the ruling of the court that evidence could be introduced under this petition was right.

While the plaintiff was upon the witness stand, he was asked what was the fair market value of this growing wheat which was destroyed by Baldwin. An objection was made that he had not qualified — he had not shown that he was prepared to give an answer that would be of any value. It was shown that it is only an occasional thing that wheat is sold, growing wheat, by the acre, although some times sold by administrators of estates of deceased persons, and pernaps by others occasionally, The plaintiff,it seems,had purchased two fields of growing wheat. The purchase was all made at one time. It was in Ashland county,some years since, but he was a farmer, had been farming on his own account for ten years, and had that much knowledge of the value of growing wheat. We think it was not error to allow him to testify as to the value. It might not be of very great aid to the jury, but he had some knowledge better than a man who knew nothing of farming; better than a man who never made a purchase, or knew of a sale or purchase, of wheat upon the groundv— growing wheat, by the acre, and we do not think there was any error in allowing that question to be answered.

The defendant put upon the witness stand Lawson. Taylor, and he was being examined with a view to showing that the management of the farm by Curth had not been such as good husbandry would require. That he did not properly farm the land, and that it was bad'husbandry to have destroyed the meadow that it was alleged had been destroyed —plowed up for the purpose of putting in this wheat, and Taylor was asked about the character of that meadow, for this wheat was grown upon land which had once been a meadow. He was finally asked the question, “How much hay was cut to the acre upon that meadow when Risden occupied the farm?” Risden had been a tenant of Baldwin upon this farm, and it was in the summer of 1892 that Risden cut this hay. As this land was plowed up for wheat in 1894, it would seem somewhat remote to undertake to show that it was bad husbandry to plow up a meadow in 1894, which had produced a crop of grass in 1892, and which the defendant proposed to show by Taylor was a ton and a half to the acre. We think there was no error in excluding that. When Baldwin himself was upon the stand, he was asked whether the plowing up of this meadow land was in accordance with good husbandry. An objection was made by the plaintiff, and that objection was sustained and an exception taken, but no statement was made as to what the answer of Baldwin would have been. For ought that appears he may have said it was in accordance with good husbandry. We cannot say that there was error to the prejudice of Baldwin in this ruling of the court. We do not know what his answer would have been except as we. may infer that a lawyer is not expected to .ask a question the answer to which will prejudice his case, though it has sometimes been done.

The court charged the jury, and the only exception taken to the charge was to the refusal of the court to charge as requested by the defendant. There were two requests made to charge, one of them was:

“If you find from the evidence that the plaintiff did not leave the rented premises of the defendant in as good condition as they were in at the time he took possession thereof, the natural wear and tear excepted, then you may inquire whether he so left them through malice or ill will; if you find from the evidence he did, you may go further than mere pecuniary damages and give the defendant exemplary damages, that is, such damages as will be an example, and in that you may include a reasonable attorney fee’’.

This the court refused, but the jury found specially that the defendant was not entitled to recover on any of the things set up in his cross-petition, so whether that ought to have been given or not there was no prejudice; because the jury found there was no wrong doing on the part of the plaintiff, there surely was no malice; therefore there was no error to Baldwin’s prejudice in refusing to give this request.

The other request I will not stop to read; it is long. The substance of it is, if you find that the plaintiff had not properly farmed that land and had not left the feed on the farm that good husbandry would require, and the like, and that in order to restore the farm to as good condition of husbandry as when the plaintiff took possession and that to provide a proper amount of feed and support for stock it became necessary to plow up this wheat, the defendant had a right to plow it up and the plaintiff could not recover. We do not suppose that one may go and destroy the property of another in such a way as this, go and plow up his crop of wheat because he hasn’t farmed the land as it ought to have been farmed, and without reference to how valuable the wheat is as compared with the injury that has been done. That is not the way for a man to right his wrongs; the court properly refused to charge this request.

And one other objection urged is, that the damages are excessive. The damages are, as found by the jury, ninety-eight dollars and some cents, and the claim is made that the jury made a mistake in this, since Baldwin was to have one-third of the wheat; for they say that that would be the share that Baldwin would be entitled to under the custom of the community; since he is to have one-third, leaving Curth two-thirds; that it would be a mistake to allow Curth the value of the entire two-thirds as it stands upon the land, and T think that that is true. If there were twelve acres of wheat growing, and each acre was of equal value, so that one-third of that set off to Baldwin would have been his share, and each acre was worth ten dollars, Baldwin’s four acres would be worth more than ten dollars an acre, because he is to have his cut and thrashed at the expense of Curth. So that if an estimate was made by saying that is worth $12.00 an acre, and there were twelve acres, and Curth’s interest in it is two-thirds, they made a mistake; it would not be two-thirds, for he would have to pay for Baldwin’s whatever was necessary to get his into the bushel.

Baldwin's was worth more than one-third of the wheat as it stood upon the ground, for Ourth was to be at the expense of cutting and harvesting his own and also at the expense of cutting and harvesting that of Baldwin. The testimony is that the expense of that would be in the neighborhood of three dollars an acre, Although there is a dispute as to how much there is of this, and there is a dispute as to the valúe, yet there is testimony to justify the jury, if they believed it, in finding it was worth $12.00 an acre, and there were twelve acres; if that is so, it would be worth 1144.00. Then Baldwin’s share would be worth $48.00. In addition to that, Baldwin’s share would be worth what it would cost to cut and harvest it. This at $3.00 per acre would give Baldwin $48,00 plus $12.00,and there would remain for Ourth $144.00 less $60.00, which would be $84.00, and the interest computed on that from the time the injury is said to have been committed up to the time when the case was heard, was $15.12, that would have been $99.12,and the jury found $98.00,so that making the computation in the wav I think it should be made and the way it is claimed, still the evidence is such we cannot say the damages are excessive, and the judgment is affirmed.

Judge Kelley and O. W. Johnson,for Plaintiff in Error.

H. G. Redington, for Defendant in Error.  