
    Harvey Harrison, Respondent, v. John McClellan and William McClellan, Appellants, Impleaded with John Haines, Defendant.
    Third Department,
    March 9, 1910.
    Animals — trespass — lease of farm and stock on shares — liability of landlord.
    The .liability for the trespass of animals is imposed not because.of ownership, but because of possession and the duty to care for them.
    Where lands stocked by the owner are rented, the tenant and not the landlord is liable for trespasses committed by the cattle which the landlord has furnished for the tenant’s use.
    Where the owners rented a farm on shares under a lease providing that they were to stock it with twenty-one cows and a bull, which they were not to remove unless they put others in their places, and the tenant agreed to furnish eight cows of his own and to keep the fences in repair, and the exclusive control of the stock and farm was left to the tenant, the landlords are not liable for damage done by the cows which escaped from a pasture and injured the crops of a neighbor.
    
      If any liability of the landlords were established, it should only be for the amount of damage committed by their own cattle and not for that done by the tenant’s cows.
    Appeal by the defendants, John McClellan and another, from a judgment of the County Court of Otsego county in favor of thé plaintiff, entered in the office of the clerk of said county on the 22d day of September, 1909, upon an order of said County Court entered on the 10th day of September,- 1909, affirming the judgment of a Justice’s Court, the appeal having been taken from said court upon questions of law only, and also (as stated in the notice of appeal) from said order of affirmance.
    Cattle from the farm owned by the defendants McClellan trespassed upon the plaintiff’s farm and injured his corn, to his damage of twenty-seven dollars, for which, with costs, he recovered judgment against them and Haines, their tenant. Haines was carrying on -the farm under a written agreement which “ Witnesseth: That the parties of the first part lease their farm on shares, share and share alike, for the period of one year, commencing upon Mar. 1, 1908, and terminating upon Mar. 1, 1909.” Haines was not to sublet any part of the farm; appellants reserved the right to sell and remove timber from any portion of the woodland “while this lease is in effect.” They were to “ stock said farm with 21 cows and bull, reserving the right to dispose of any of them after Hov. 1,1908, and replace with the same number.” Haines accepted the cows then upon the farm and was not to dispose of any of them; he was also to put on eight cows of his own; he is required to plow and top-dress certain lands; to raise five acres of buckwheat, each to furnish half the seeds and phosphate, and when threshed the buckwheat is to be divided equally. The milk, except two quarts a day to be used by Haines, to be delivered each morning at the factory, and the dividends from the factory are to be paid half to each party. Each pays one-half the taxes, and for one-lialf the salt and paris green; five acres of potatoes are to be planted, Haines to give them good care, and they are to be divided when dug; they are to determine what land shall be plowed; seven acres of ensilage corn is to be planted; Haines is to furnish his team; the hay and straw on the place is to be fed to the stock, and the balance, if any, is to remain on the farm; he is to keep not to exceed twenty-nine cows and-three horses during the winter; the proceeds of the poultry are his; he is to tap. and care for the sugar bush and divide the syrup and sugar; they reserve a bedroom in" the house for storage : purposes; he is not to remove any wood-or timber from the farm, but may get his own wood from "it from timber selected by them; haying is. to begin July 1, 1908, is to be well done, including the sides of the track on the trolley road and the flats ; “ the fences are to be built and repaired and Well kept up by second party, and parties of the first part are to furnish posts and nails to repair fences and build new fences ; second party to take good care.of buildings and stock; all stock to be kept off the meadows in the "spring and summer,”, and many other minute provisions are contained in the lease.. Between the plaintiff’s cornfield and the McClellan lower meadow there was nó fence worthy of the name, and it- appears that ’ on account of the better feed Haines turned the cattle into that meadow -and lie and his children watched, them, "but from the fifth to the tenth of September they escaped into- the plaintiff’s cornfield and greatly injured the crop. . • .
    
      George Wohlleben, for the appellants.
    
      W. I Bollen, for the respondent.
   Kellogg, J.:

It is apparent from the agreement or lease that the defendants McClellan had no right to dictate in what fields, in what manner or at what time the cattle should be pastured, or what - cafe should be taken of them to prevent their escape. Those matters were left solely with the tenant. He was" carrying on the farm and had • exclusive control of the farm and the stock except as otherwise provided in the lease ; the McClellans were only interested in one-half the results which came' from his management.

It is not always easy to determine the relative rights of the owner and the occupier of a farm worked on shares. The parties may so formulate the agreement .that the. occupier1 is the mere servant of the owner; or the occupant, in other cases, may be the tenant, and the relations subject to all the terms1 applying to landlord and tenant except that in place of a money rental the landlord receives half the crop. ■ They may ordinarily be considered as tenants in common " of the crops and farm products, which are to be divided, but are not in any sense partners in the business. In this case the parties have chosen to treat their relations as that of landlord and tenant, and while the lease in many respects is very minute as to what the tenant may or may not do, the same minutenéss is substantially found in most cases where a money rental is to be paid. There usually the milk is placed in a factory, and the moneys therefrom are paid, in great part, to the landlord until his rent is paid, and other conditions are inserted in the lease with, the view of requiring that thé farm shall be managed in a thorough, workmanlike manner and to insure the landlord his rental and the return of the stock and property without serious detriment.

Where premises stocked by the owner are rented, the tenant and not the landlord is liable for trespasses committed by the cattle which the landlord has furnished for the use of the tenant. ( Van Slyck v. Snell, 6 Lans. 299, 302; Atwater v. Lowe, 39 Hun, 150.)

Liability for the trespass of animals is imposed not because of ownership, but because of possession, and of the duty to care for-them. (Cooley Torts, 340.) Ordinarily the owner is charged with the duty of restraining his cattle, but in many instances the duty rests' not with the owner, but the tenant, or the person who for the time being has their control and management and may retain the same even against the owner.

In Lettis v. Horning (67 Hun, 627), Kelly, by written contract, took the defendant’s farm for one year from March 1, 1891, to work on shares.” He was to have twenty cows on the farm and one bull. It was held that the bull was not left upon the farm for the benefit of the tenant, but the tenant was merely a, bailee of it, keeping it there solely for the accommodation of the owner, and apparently upon that fact alone the liability of the owner rested. We may fairly assume that if the injury had been committed by one of the leased cows which were upon the farm for the tenant’s benefit the result would have been otherwise.

In Marsh v. Hand (120 N. Y. 315) Cumber worked the Hand. farm on shares for a year. The ram belonging to the Hands was to be kept on the farm with the sheep, but the tenant was the mere bailee of the ram, receiving no possible benefits from it. It was held that Cumber, having traded the ram off and acquired a vicious ram in its place, the Hands were not liable for injuries committed by it, as the ram was not their property. The. assumption that otherwise the Hands would be liable must rest upon the fact that the injury was committed by a ram which was not held for the benefit of the tenant, but he was simply pasturing and feeding it for the owner and for his benefit the next year. It was not necessary to the decision, and the case is not an authority against the views here expressed. That case shows that the tenant under such a lease is not a servant of the landlord, but an independent contractor, and that the landlord is not liable for his negligence or the manner in which he performs the duties resting upon him, the court saying (at p. 322): “ While they furnished and left the stock on the farm, and were ’to have a share in the products, he had the entire responsibility of carrying on the business of working it, arid accounting for their share in the results. He was the contractor who undertook to.do all this, subject only to the terms of the contract he had made with them to do it.” And at page 323 : “ The practical effect of the contract was that the executors should have a share of the products by way of compensation for the use of the property, and that Climber was entitled to the other share as compensation for his labor in performing the contract. N o negligence of the latter in the performance of the work to the prejudice of third parties could charge the Hands with.liability.”

The plaintiff’s injury in this case arose from the fact that the Haines boys did not carefully watch the cows, as their father directed them to do. The McClellans had no right to go upon the premises to watch them and keep them from plaintiff’s field. The McClellans had no right to prevent their pasturing upon this meadow or to dictate the time during which or the place where they should be pastured. It was not within their power to prevent the trespass. The provision in the lease that the landlords are to stock the.farm with twenty-one cows which have been accepted by the tenant, and that they may dispose of any of them after November 1, 1908, and replace with the same number, shows clearly that the cows were leased just as much as the farm was, and as it was stipulated on the trial, and that Haines had an equal control and authority over each, and that the McClellans had no right to remove any of the. cows from the farm prior to November first. The farm' and stock being in the'entire control and management of Haines except in the respects indicated .in the lease, which-are not material here, the defendants McClellan have violated no duty to the plaintiff, and the judgment against them cannot stand.

The cattle upon the McClellan farm were partly owned by the tenant and partly by the landlords, and if liability were established against the landlords it could only, be for the "amount of damage actually committed by their cattle, it being fairly assumed that all the cows trespassing did about an equal amount of damage. (Partenheimer v. Van Orders 20 Barb. 479; Wood v. Snider, 187 N. Y. 28.)

The judgment of the County Court and J ustice’s Court agáinst the McClellans is, therefore, reversed, with costs to them in all courts.

All concurred.

Judgment i of the County Court and Justice’s Court against the McClellans reversed, With costs to them in all courts.  