Landlord and Tenant, Growing crops. Growing Crops. Emblements. Wanton Destruction of Personal Property. Real and Personal Property. Pleading, Criminal, Indictment or complaint. Practice, Criminal, Motion to quash, Arrest of judgment.
Growing crops, that were planted by a tenant at will in a part of a garden appurtenant to a tenement then occupied by him, continue to belong to him after his tenancy and occupation have been terminated by his landlord giving a lease in writing to a third person of the building containing his tenement.
A lessee under a lease given him to terminate a tenancy at will, who pulls up and throws in a heap growing crops that were planted by the tenant at will, can be found guilty of wantonly destroying the personal property of another upon a complaint under St. 1904, c. 305.
Under the rules of criminal pleading, contained in R. L. c. 218, §§ 17, 37, a complaint under St. 1904, c. 305, for wantonly destroying personal property of another need not allege that the destruction was in a manner and by a means not particularly described or mentioned in R. L. c. 208.
Neither R. L. c. 208, § 105, in regard to trespass in an orchard, nursery, garden or cranberry meadow, nor R. L. c. 208, § 106, in regard to maliciously entering an orchard, garden or other improved land of another with intent to carry away, destroy or injure the trees or the products there mentioned, particularly describes or mentions the wanton destruction of growing crops in a garden appurtenant to a tenement by a lessee lawfully in possession of the land.
A motion in the Superior Court to quash for a defect in form a complaint that originally was filed in an inferior court is made too late.
A formal defect in a complaint cannot be taken advantage of by a motion in arrest of judgment.
De COURCY, J.
George Speleos, a tenant at will of one Corsiglia, during the year 1915 occupied and planted some of the land appurtenant to the premises he hired, without objection on the part of his landlord. Again in April and May, 1916, he laid out and planted some garden produce in the same garden plot. In June, 1916, the landlord executed a lease of the entire premises to the defendant, Galatta, who later notified Speleos to vacate them within two days and brought a writ of ejectment. Thereupon Speleos vacated the premises, moved into the property of an adjoining owner and surrendered the key on July thirteenth. Some time during the early morning of July fourteenth his garden produce was pulled up, destroyed and thrown in a heap on the premises to which he had moved. The defendant was tried and found guilty on a complaint which charged that he "did wantonly destroy the personal property of another, to wit: the growing crops of George Speleos, by digging them up. . . ."
The motion to direct a verdict of not guilty was denied rightly. At common law growing crops, which owe their annual existence to the cultivation of man, are treated as chattels even while still annexed to the soil. Penhallow v. Dwight, 7 Mass. 34. See 8 R. C. L. 356. As between the landlord Corsiglia and his tenant Speleos these annual crops were the property of the tenant, and he was entitled to harvest the crop which he planted, even after the landlord had terminated the tenancy at will.
The defendant, Galatta, who took a lease of the premises knowing that Speleos was a tenant at will of his lessor, could not defeat that tenant's right to his crops. The general principle is that where a person is in possession of land under a title that may be determined by an uncertain event not within his control, it is essential to the interests of agriculture that such a determination of his lease shall not prevent him from reaping what he has sown. And we see no reason why a tenant should be denied the right to emblements by the act of the landlord where the crop is raised on a city or town lot rather than on a farm. Rising v. Stannard, 17 Mass. 282. Brown v. Thurston, 56 Maine, 126. Bittinger v. Baker, 29 Penn. St. 66, 70. 41 L. R. A. (N. S.) 404, note.
There was no error in the portion of the charge excepted to. Plainly the tenancy of Speleos was terminated by the lease of the premises to the defendant, and not by the surrender of the keys after the defendant had brought a writ of ejectment and the tenant had moved out. Chandler v. Thurston, 10 Pick. 205.
The motions to quash and in arrest of judgment were rightly denied. The complaint property alleged an offence under St. 1904, c. 305. See R. L. c. 218, §§ 17, 37. And neither § 105 nor § 106 of R. L. c. 208 was applicable to the facts in this case.
It may be added that the motion to quash well might have been denied on the ground that it was filed too late, Commonwealth v. Reid, 175 Mass. 325, and that the alleged formal defect could not be taken advantage of by a motion in arrest of judgment. Commonwealth v. Mackay, 177 Mass. 345.
Exceptions overruled.