
    Elizabeth C. Taylor, Appellant, v. Charles Wright, Respondent.
    
      Action for trespass by an owner of a farm let on shares, against a third person—it is maintainable under Oode of Giml Procedure, § 1965.
    An owner of a farm, which has been leased upon shares to a tenant who agrees to surrender possession thereof at the expiration of the term in as good repair and condition as when he took possession, natural wear and tear and damages by the elements excepted, may, under section 1665 of the Code of Civil Procedure, maintain an action of trespass against a stranger, who, while the tenant is in possession, destroys and carries away a line fence upon the farm and closes up a right of way appurtenant thereto, which the owner was then actually using under a reservation in the lease.
    Appeal by the plaintiff, Elizabeth C. Taylor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schoharie on the 14th day of February, 1899, upon the dismissal of the complaint at the close of the plaintiff’s evidence by direction of the court after a trial before the court and a jury, and also from an order dismissing the complaint.
    
      A. B. Coons, for the appellant.
    
      William C. Lamont, for the respondent.
   Merwin, J.:

Prior to 1889 the plaintiff became and still is the owner of a farm of about 300 acres situated in the town of Esperance. In June, 1896, she commenced a suit in a Justice’s Court against the defendant to recover damages for trespasses committed by the defendant upon the farm and upon a right of way connected therewith. The defendant put in a plea of title and thereupon the action in the Justice’s Court was discontinued and the present one commenced in the Supreme Court for the same cause of action.

In the complaint it is alleged, among other things, that for more than six years last past the plaintiff has been and still is the owner and in possession of the farm; that at divers times during, that period the defendant has entered upon the farm without the plaintiff’s consent and tore down and destroyed the plaintiff’s fences, and also-obstructed and prevented plaintiff from using a right of way connected with the farm and which the plaintiff had the right to ' use and which was necessary for plaintiff in the use and enjoyment of her lands, such obstruction being by means of' a fence built by defendant across such right of way.

'. At the trial the plaintiff gave evidence tending to show that the defendant without right entered upon the plaintiff’s premises and tore down and carried away a portion of plaintiff’s fence which was a part of a line fence between the plaintiff’s and the adjoining farm; that the defendant, also, by means of a wire fence, closed up a private right of way belonging to plaintiff and used by her as appurtenant to. her farm.'

Upon .the cross-examination of tlie plaintiff it appeared that on October 12, 1889, a lease or contract was executed by the plaintiff and one Stalker with reference to the occupancy of the farm. This instrument the defendant then put in evidence. By this instrument it appears that the farm was let to Stalker upon shares. The plain-

. tiff reserved for her own use portions of the house and garden and barns, and also the right to do any repairs on the farm that she might deem necessary without doing injury to Stalker. Stalker agreed to cultivate and work the farm in a proper manner, each party to.have one-half of the proceeds. Stock was to be kept sufficient to use up the pasturing and the hay and fodder, and each was to furnish one-half the stock and have one-half the proceeds. The-plaintiff’s half of the crops was to be delivered by Stalker at a certain depot when requested by plaintiff, and the plaintiff also had a claim on Stalker’s half as security for his performance of the contract. Stalker was to take possession of the -premises on April 1,. 1890, and deliver them up on the 31st of March, 1891, in as good repair and condition as when lie took possession, natural wear and tear and damages by'the elements excepted. Stalker entered into possession under this contract April 1,1890. After its expiration he continued to carry on the farm under substantially the same terms until ’ April 1,1896. This covered the period of the trespasses in question.

At .the close of the evidence on the part of plaintiff, the court granted a nonsuit upon the ground that the plaintiff had not sufficient possession of the farm to maintain the action. The ruling was-based upon the case of Campbell v. Arnold (1 Johns. 511), where-it was held that a lessor cannot maintain trespass quare clausum fregit against a stranger for. cutting down and carrying away trees-while there is a tenant in possession. That case was decided in the year 1806. There may be doubt whether that rule in any event would he applicable to a letting upon shares like the lease in question. (Putnam v. Wise, 1 Hill, 234, 248 ; Taylor v. Bradley, 39 N. Y. 129, 138.). There is, however, another view of the subject that seems to be' decisive. By section 1665 of the Code of Civil Procedure it is provided that a person seized of an estate in remainder may maintain an action founded upon an injury done to the inheritance, notwithstanding any intervening estate for life or for years. There was a like provision in the Revised Statutes (1 R. S. 750, § 8) which was a reproduction of section 47 of chapter 246 of the Laws of 1811, passed subsequent to the decision in 1 Johnson.

The injuries to the line fence and to the right of 'way were injuries to the inheritance (Smith v. Felt, 50 Barb. 613; Mortimer v. Manhattan Ry. Co., 57 N. Y. Super. Ct. 509, 517; Korn v. New York El. R. Co., 39 N. Y. St. Repr. 322), and, if so, the plaintiff had a right to maintain the action.

It is suggested by the respondent that as Stalker was under obligation to return the premises in as good repair and condition as when he took possession, he was the only person who could recover for the injuries complained of, and that the plaintiff can only look to Stalker. It appears that the line fences torn down were rebuilt at the expense of the plaintiff, and evidently it was not within the contemplation of the parties to the lease that Stalker should be under obligation to plaintiff to indemnify her against such injuries. Besides, it appears that plaintiff, in the use of the rights reserved to her in the lease, was in actual use of the right of way, and, therefore, her present right in the right of way was interfered with by the obstruction of the defendant.

Except for the question of possession, the trial court was of the opinion that the proof was sufficient for a recovery as to the line fences and the right of way. The court erred, we think, in holding that the plaintiff’s possession was not sufficient. It follows that the nonsuit should not have been granted.

All concurred.

Judgment reversed and a new trial granted, costs of this appeal to the appellant to ábide the event.  