
    Harris v. Carson.
    July, 1836,
    Lewisburg.
    (Absent Bhooke, J.)
    Lands — Leased for Fixed Period — Waygoing Crop.— wtiere land is leased for a fixed and determinate period, the offgoing tenant is not entitled to the waygoing crop.
    Same — Same—Parol Evidence of Usage to Vary. — Parol evidence of a usage for the offgoing tenant to have the waygoing crop, is not admissible to explain a written contract of lease for a fixed and certain period.
    Common Law — Usage in Opposition to — Effect.—A practice or usage in opposition to the common law, however general it may be, has no force in this county on the ground of custom, because not immemorial.
    This was an action of trespass, brought by James Harris against Elijah Carson in the county court of Augusta. There were two counts in the declaration. The first count charged that the defendant on &c. broke and entered the plaintiff’s closes in the said county of Augusta, and trod down, spoiled, consumed and depastured the plaintiff’s grass, corn and small grain then and there growing, and cut and carried away other the grass, corn and small grain of the plaintiff then and there *growing and being, of great value &c. The second count was simply for taking and carrying away divers goods and quantities of grain, hay and corn, of the like quantity, quality and value as those described in the first count. The defendant pleaded not guilt}’, and issue was joined thereon.
    At the trial, the plaintiff gave in evidence to the jury a written lease, from Elizabeth Purris to himself, of the premises on which the trespass was alleged to have been committed, for the term of four years from the first day of April 1825. This instrument was signed and sealed by the said Elizabeth Purris and the plaintiff, and'contained, among various covenants, the following: “The said James Harris is to clear two acres of ground, and has the privilege of clearing fifteen, if he chooses, during the four years, for which he is to have three crops, as is customary for clearing land.” But as to the question whether the tenant should be entitled to the crop which might be growing on the demised premises at the expiration of the term, the lease was wholly silent. The plaintiff further proved, that he entered upon and took possession of the demised premises, and held the same until the expiration of his lease. That, at the time of making the said lease, the whole of the cleared land on the demised premises, except a few acres, was in small grain, having been seeded the previous autumn by a certain John Henry, under a contract between him and the said Elizabeth Purris; and that in the summer of 1825 the said John Henry gathered and hauled away the said crop, without any claim being made thereto on the part of the plaintiff. That, in the autumn of 1828, the plaintiff sowed about 30 acres of the old cleared land on the demised premises, and three acres which he had cleared during the term, which last parcel was embraced in the same enclosure with part of the old cleared land. That he also, at the same time, sowed in small grain about seven *acres of land in a separate field, which he had cleared and fenced during the term. That from the three acres aforesaid he had, previous to the said seeding in 1828, taken two crops, but the said seven acres had never been cultivated before. That, in the harvest of 1829, the defendant with his servants, horses and wagons, came upon the 30 acres aforesaid, and though prohibited by the plaintiff, took and carried away part of the said crop which the plaintiff had made thereupon, and which part the plaintiff had recently cut down; and also cut and carried away, though prohibited by the plaintiff, another part of the crop last aforesaid; and that part of the grain so cut and carried away by the defendant was growing upon the three acres aforesaid. It was also proved that the plaintiff took away several wagon loads of grain from the said 30 acre field. The plaintiff further examined witnesses to prove that, by the custom and usage of the country, a tenant for a term of years is entitled to the waygoing crop; and the defendant examined witnesses to prove that such was not the custom and usage of the country, and particularly of the neighbourhood of the demised premises.
    The defendant gave in evidence to the jury a written agreement, signed and sealed by himself and the said Elizabeth Purris, whereby the said Elizabeth Purris leased to him, for the term of four years from the first day of April 1829, the same premises which had been before demised to the plaintiff. This instrument contained the following clause: “It is further understood and agreed that the said Carson is to have liberty to take his last fall crop off in peace.” The defendant proved, that he entered upon and took possession of the demised premises at the expiration of the plaintiff’s said lease; hut there was no evidence to shew whether this possession extended to the land on which the waygoing crop was growing. He also proved, that about the *time of the expiration of the plaintiff’s said lease, the plaintiff and Elizabeth Purris referred the settlement of their accounts for rent, repairs and improvements, to arbitrators, who reported a balance due from the said Elizabeth to the plaintiff, which was paid him; but the said reference embraced no question in relation to the crops. The defendant further gave in evidence two notices in writing from Elizabeth Purris to the plaintiff; the first in these words: “June 11th 1827. Mr. James Harris. Sir, Take notice, I shall expect you to leave my farm by the first of April 1829. Any land which you have cleared or may clear, I wish you to have your crops off it before that time, as I shall expect it free from any and every in-cumbrance.” And the second in the terms following: “Mr. James Harris. You will please take notice, that I will take possession of the land leased to you by articles, on the first day of April next, being the time your lease expires agreeably to the articles, and that you will leave the said place in the situation that may be required of you in conformity with the said articles. Given under my hand this 23d day of December 1828.” Each of the said notices was signed by Elizabeth Purris, and it was proved, that the first was duly served on the plaintiff in July 1828, and the last on the 23d day of December 1828. It also appeared from the evidence, that the plaintiff, at the time of the lease to him, was cognizant of the previous lease to John Henry, and of the fact that a crop was then in the ground. The defendant also proved, that it is customary for a tenant to be allowed three crops for clearing land, he enclosing and leaving it under a good fence.
    And this, the record stated, was all the evidence offered on either side, except on the subject of usage.
    After the introduction of the foregoing evidence, the defendant moved the court to instruct the jury, first, That under the terms of the lease aforesaid, the plaintiff *was not entitled to recover for the crop severed from the 30 acre field aforesaid after the determination of his lease. Secondly, That the jury should disregard all the evidence offered by the plaintiff with a view of proving a custom or usage varying the terms of the articles, and tending to shew that the plaintiff was entitled to the waygoing crop. Thirdly, That under the facts aforesaid this action cannot be ' maintained. Fourthly, That if evidence of usage is admissible to influence the construction of the articles, then such usage must be generally acquiesced in, in the particular neighbourhood where the contract was made. Fifthly, That if evidence of usage is admissible, such usage must be of long standing, and uniform, peaceably acquiesced in, and not subject to contention and dispute, either at law or otherwise. • Sixthly, That if such general usage shall be established to prevail in the district of country where the parties lived and where the contract was made, yet if it shall be shewn, on the other hand, that a different and opposite usage prevailed in the particular neighbourhood where the contract was made and the parties lived, and at the time such contract was made, then such particular usage of the neigh-bourhood should govern in the construction of the contract, in preference to the general usage. But the court refused to give any of the instructions asked for by the defendant, and he thereupon excepted; the bill of exceptions stating the whole of the evidence, as detailed above. The jury found a verdict for the plaintiff, and assessed his damages to 100 dollars; and the county court rendered judgment accordingly.
    The circuit court of Augusta, on the petition of Carson, allowed a supersedeas to the judgment of the county court; and being of opinion that the said county court-ought to have given all the instructions asked for, reversed the judgment, set aside the verdict, and directed the cause to-be sent back for a new trial. To *this judgment of the circuit court a supersedeas was allowed by the court of appeals, on the petition of Harris.
    B. G. Baldwin, for plaintiff in error.
    Peyton, for defendant in error.
    
      
      Lands — Lease for Fixed Period — Waygoing Crops.— The principle settled in Harris v. Carson, 7 Leigh 632, that where a lease has a fixed period for its termination and there is nothing in It purporting to give to the tenant the crops growing upon the land at the time of Its termination, the tenant has no right to reap these crops after his lease terminates, again recognized. Mason v. Moyers, 2 Rob. 606, citing the principal case at pages 613, 620, but distinguishing it. See also, foot-note to same case.
      In Kelley v. Todd, 1 W. Va. 202. the rule laid down in the principal case is approved, but distinguished from the case at bar on the ground that, where the lease recognizes the right to sow in the last year of the term, as was the case in Mason v. Moyers, and the tenant is restricted to the cultivation of certain portions of the land and pays an equal annual rent for its use, he has a right to reap the waygrowing crop, where the lease is silent as to who is entitled thereto. See monographic note on “Landlord and Tenant” appended to Mason v. Moyers, 2 Rob. 606.
    
    
      
      Written Contracts — Local Customs to Vary. — For the proposition that a local custom or usage cannot be relied upon where it is inconsistent with the. terms of a written contract between the parties, the principal case is cited in Southwest Va. M. Co. v. Chase, 95 Va. 56, 27 S. E. Rep. 826. And in McGuire v. Wright, 18 W. Va. 513, to the point that where, the written, contract is not ambiguous parol evidence is not admissible to contradict or vary Its terms. .
    
    
      
      Comnion Law — Usage in Opposition to. — In Reese v. Bates, 94 Va. 325, 26 S. E. Rep. 865, It is said: “It is, of course, well settled, that a usage in opposition 'to the common law, however general It may be, has no force in this country on the ground of custom (Harris v. Carson. 7 Leigh 632), and there is no customary law in Virginia which per se can vest a right in a party claiming under it (Delaplane v. Crenshaw & als., 15 Gratt. 457); but a usage or custom of trade may be shown.” See also, citing the principal case, Delaplane v. Crenshaw, 15 Gratt. 470, 474, and note.
      
    
   CABELE, J.

Harris the plaintiff in error leased from Purris a tenement in the county of Augusta, for the term of four years, commencing on the first of April 1825, and ending on the first of April 1829. There is nothing in the lease purporting to give to the tenant any interest in the land, or in the crops upon it, after the termination of the lease. On the day on which this lease terminated, the same-tenement was leased by Purris to Carson-the defendant in error, who, in the summer of 1829, proceeded to cut and carry away a part of the crop of small grain which had been sown, in the fall before, by the former tenant. The main question presented by the record is, whether the offgoing or the incoming tenant was entitled to this crop.

The lease in this case having a fixed and certain period for its termination, it is. clear, beyond doubt, that the offgoing tenant had no right, at the common law, to any crops growing on the land, after the termination of the lease, although they may have been sown during his possession of and interest in the land; for it was his own folly to sow, when he knew that his interest would expire before he could reap. The crops are claimed, however, in this case, on the ground of a custom said to prevail in the district of country in which the land lies, that the offgoing tenant shall have the waygoing crops.

The case of Wigglesworth v. Dallison, Doug. Rep. 201, was strongly relied upon by the counsel for the plaintiff in error, as shewing that a custom would, in England, entitle the offgoing tenant to the wa3r-going crop, even where, as in this case, the lease was by writing' under *seal, and to end at a fixed time. But the ground on which 'lord Mansfield himself placed that decision, shews that it can have no weight in this country. He says “The custom of a particular place may rectify what otherwise would be imprudence or folly. The lease being by deed does not vary the case. The custom does not alter or contradict the agreement in the lease; it only superadds a right which is consequential to the taking.” I entirely concur in the correctness of this opinion, as applied to a case in England. But it is correct, not on the ground of direct contract, nor because the parties are presumed to have contracted in reference to the custom : it is correct, because of the force of the custom, as such; for, in England, where they have particular customs, the custom of the county in which the land lies is as much the law of that county, as the common law is the law» of the other parts of the country where they have no such particular custom. The particular custom prevents the application of the common law to the county or district in which the custom prevails, by shewing that the common law, as to this subject, never had any existence in that county or district. Bor, a custom, to be valid, must be as old as the common law; it must be immemorial. And if the particular custom be proved to be immemorial, it necessarily excludes the general custom, or common law; for two opposite and inconsistent customs cannot have immemorially existed, in the same place, and as to the same thing.

But the case is widely different in this country. Our ancestors brought with them the common law or general customs of England, but none of the particular customs. The common law became the law of our whole state, and gave th-e rule to every part of it; and we have seen that, by that law, the ofirgoing tenant was not entitled to the waygoing crop. Any practice or usage, however general, introduced into this country since its *settlement, and in opposition to the common law, can have no force on the ground of custom ; because it lacks the essential ingredient of a good custom — it isnot immemorial. It is clear that it could not have existed at any time, even as a recent custom, until after the settlement of the country, and after the common law had attached to every part of it. And nobody will contend that a recent usage or practice, however general, will change the common law. Nor is the case of the plaintiff in error helped by the argument, that the custom, although not obligatory as such, may nevertheless be looked to as having been within the contemplation of the parties at the time they contracted, and may therefore be regarded as an exponent of the contract. The principle of explaining a written instrument by parol testimony, applies to those cases only where there is some latent ambiguity in the written instrument, or where its terms have not a definite legal signification. Bowyer v. Martin &c., 6 Rand. 525. Here there is no ambiguity, no uncertainty, no doubt whatever. It is nothing more nor less than a lease for a period fixed and certain, when the interest of the tenant is to cease and determine. To extend it beyond that period by parol testimony, is contrary to received principles, and utterly inadmissible.

I am clearly of opinon that the plaintiff in error was not entitled to the waygoing crop; and this point being decided against him, it is equally clear that the county court ought to have given all the instructions moved for by the defendant in error. It may seem, at first view, that the third instruction is improper, as interfering with the province of the jury in deciding on the weight of testimony. But I do not think it liable to that objection. The court was not called on to say what facts were proved, but merely to say what the law would be on facts stated.

*1 am for affirming the judgment of the circuit superiour court.

The other judges concurring, judgment of circuit court affirmed.  