the lessee at will, by good husbandry and industry, either by overflowing or trenching, or compassing of the meadows, or digging up of bushes, or such like, make the grass to grow in more abundance, yet if the lessor put him out, the lessee shall not have the grass, because that the grass is the natural profit of the earth. And the same law is if he doth sow hay seed, and thereby increaseth the grass."

Co. Litt. 56 a.

It is undoubtedly true, as held in Graves v. Weld, that the common law "confines its allowance of emblements to those cases in which there is an outlay of cost or labor in one part of the year, the recompense for which is to arise in the shape of a crop in another part of the same year; but it is as clearly true that the rule makes another distinction, namely, between the crops which will not grow at all without the cost and labor, and those which will grow without, and are only made to yield a greater return by expending upon them the cost and labor. The former are the subjects of emblements, while the latter are not.

The rule, as stated in that case, is open to another excep tion. It is not necessary that the recompense should be had from the crop in the same year. Grain sown in the summer or fall of one year, which does not become ripe for harvest until the summer of the succeeding year, as winter wheat and rye, are the productions most commonly brought within the rule of emblements.

It may be said, however, that such is not the rule, according to the common law of England, but only in some of the States in this country, where the common law has been changed by general custom.

The case of Stultz v. Dickey, 5 Bin. R. 285, is an instance where the common law, as it exists in Pennsylvania, was held to be changed by the general custom of that State.

In that case, there was a lease of a farm for the term of five years, with no express provision in the lease in regard to emblements, or the crops which might ripen after the expiration of the term. In the fall of the last year of the term the

tenant sowed both rye and wheat, although fordidden to do so by the reversioner. At the end of the five years, which was the first of April, the tenant gave up possession of the premises. When the rye and wheat were ready for harvest, two or three months thereafter, he claimed the right to gather the crop, but was prevented from doing so by the tenant in possession, who cut the grain and converted it to his own use. The tenant who sowed the grain brought trespass quare clausum fregit, and recovered a judgment for the value of the wheat and rye against the tenant in possession.

The recovery was had upon testimony that by the general custom of the country a tenant for a term certain was entitled, after the expiration of his lease, to enter and take away the crop of grain which he had put in the ground the preceding fall. That testimony was held to be admissible and controlling of the law of emblements, on the ground that such was the general custom throughout the State as to what is known as winter grain.

In giving reasons for upholding the rule, it was said by the court that, "in the nature of the thing, it is reasonable that where a lease commences in the spring of one year and ends in the spring of another, the tenant should have the crop of winter grain sown by him the autumn before the lease expired; otherwise, he pays for the land one whole year without having the benefit of a winter crop. If the parties intend otherwise, it is easy to control the custom by an express provision in the lease."

But it was further said that such right of the tenant to emblements was confined to a reasonable quantity of land, in proportion to the residue, according to the course and usage of husbandry in the same parts of the country.

In another case, Deuri v. Boller, 1 Penn. R. 224, it was held that that rule was limited to winter grain, and did not embrace oats or other spring crops. In this case the lease was for the term of one year, commencing on the first of April in one year and ending on the first of April in the next year. The tenant sowed oats in March immediately preced

ing the end of his tenancy, and claimed the right to the crop at maturity, as emblements. The tenant in possession gathered the crop, the outgoing tenant brought trover, and it was decided that he could not recover.

Other cases in Pennsylvania hold the doctrine as in the two cases before noticed.

Idings v. Nagle, 2 Watts & Serg. 22; Briggs v. Brown, 2 S. &
R. 14.

The same rule is held to prevail in New Jersey, in Van Doren v. Everitt, 2 South. R. 460; in Delaware, in the case of Templeman v. Biddle, 1 Harrington, 522; in Maryland, in Dorsey v. Eagle, 7 G. & J. 331; and in Ohio, in Foster v. Robinson, 6 Ohio State R. 90.

The principle of these cases is, that the tenant for a year, or for a term of years, is entitled to all the successive crops usual to the locality, which are grown upon the land; that crops which can be matured the same year they are sown or planted, are not within that rule of emblements; but those which require a part of the succeeding year to ripen, are within the rule. This is a distinction, however, which seems to depend upon the general customs of the States, and differs in different States.

In New York, in Whitmarsh v. Cutting, 10 John. R. 360, in the case of a tenant for a year, it was held that he was not entitled to wheat and rye sown in the fall, as emblements. The term was limited for one year from the 20th of April, 1810. The court held to the common law rule, that the doctrine of emblements was founded entirely on the uncertainty of the termination of the tenant's estate; and that where that was certain, there exists no title to emblements.

In another case, decided about the same time, Bain v. Clark, 10 John. R. 424, the court applied the same doctrine. Those cases seem to have been regarded as settling the law of New York upon this point in strict accordance with the common law of England.

In concluding this part of the subject, we submit that, according to the doctrine of all the cases, where the law has

not been changed by general custom, the fact of the annual sowing or planting of the crop which is claimed as emblements, is not a necessary element of the right. It has become incorporated as a part of the definition of such a right, merely from the fact that cultivated crops, as distinguished from those of natural growth, generally spring from annual sowing or planting. But it is clear that the tenant has, both upon authority and by principle, the same right to emblements in all such perennial plants as will not produce at all, in a remunerative way, except when, like hops, they have been made the object of particular care and culture.

SECOND: When and in what cases the tenant is entitled to emblements.

It seems to be accepted as a general rule of the common law, that when the tenant sows or plants his crop, if it is not possible for him to know that his estate will terminate before the crop can ripen, and it does terminate before, he shall have the right to harvest and secure the crop at its maturity. Tenants for life and tenants at will are within that rule on the termination of their estates, unless the title under which they hold contains some express provision to the contrary; or unless the law shall be regarded as changed by some general custom of the country. On the contrary, when the determination of an estate is certain in its time, as, for example, a term for years, the tenant is not entitled to emblements.

Litt. sec. 68; Co. Litt. 55 a; 2 Bl. Com. 122; Penton v. Hobart, 2 East. 88; 1 Cruise Dig. 109, 110; Whitmarsh v. Cutting, 10 John. R. 361; Bain v. Clark, 10 id. 428.

The reason of that rule is, that if the tenant sows or plants, or cultivates a crop, when it is not possible that the crop can ripen before the end of his estate, he does so in his own folly, unless it is provided in his contract expressly, or impliedly by the general custom of the country, that he may gather the after-ripening crops.

But it must not be understood that this right to emblements belongs peculiarly to any particular class of estates.

The tenant at will and the tenant for life are not privileged in that respect, over the tenant for a term of years, because of the classification of their respective estates. The same principle and the same rule apply alike to each. The difference between them is, that the one more frequently comes within the rule or principle than the other. But, in all classes of estates alike, whenever the tenant's right of possession unexpectedly comes to an end, without any laches or fault on his part, after he has sown or planted, or bestowed the necessary labor to secure a crop, and before the ripening of the crop, he has the right to the crop. In the one class of estates, the natural end of the estate is fixed and certain in point of time, and the right of emblements does not attach as the incident of such an event. In the other, it is uncertain in point of time, and on the happening of the event the right of emblements attaches.

But the right of a tenant for years may terminate before the time allotted for it, by the happening of some other event. For example, if a tenant for life should make a lease. for a term of years, and die before the expiration of the term, his death would terminate the tenancy for years, and the tenant for years would, in that event, be entitled to emblements; for such an end of his estate could not have been anticipated. Then the tenant for years comes within the rule of emblements, as completely as the tenant for life would have done upon the determination of his estate by the death of the party upon whose life the estate depended.

1 Cruise Dig. 249; 4 Kent's Com. 109; Bevans v. Briscoe, 4 Har. & Johns. 139.

Thus in Stewart v. Doughty, 9 John. R. 108, the tenant, under a lease for six years, with a provision that the lessor might sooner terminate the tenancy by a six months' notice to quit, was allowed emblements upon the termination of the estate by such notice.

It will be seen that the right to emblements depends upon the mode of the termination of the estate, whether it ends upon an event uncertain in time, or upon the effluxion of a