A mortgagee of real estate, who has an order from the mortgagor to cut the grass thereon and apply the proceeds on the mortgage, may maintain trespass quare clausum against a stranger who wrongfully enters upon the premises and cuts and carries away the grass.
The fact that in such action he may recover full compensation for its value does not bar an action of replevin for the grass itself, and only becomes material, if at all, upon the question of costs.
BLODGETT, J.
The exceptions are not well taken.
1. The plaintiff, by virtue of his order, had an interest in the soil of the close so far as it was necessary to the exclusive enjoyment of the growing crop of grass, and to the right to cut and carry it away. This gave him a sufficient possession to maintain trespass against the defendant for breaking and entering the close; for the term close is technical, and legally signifies the interest in the soil, and not merely a close or enclosure in the common acceptation of this term — 1 Ch. Pl. (13th Am. ed.) 173 — and therefore trespass qu. cl. may be maintained by one who has a separate interest in the soil for a particular use, although the right of the soil is not in him. if he be injured in the enjoyment of his use. And to this effect are numerous authorities.
2. For that portion of the grass which the defendant actually cut and carried away replevin will of course lie. The fact that the plaintiff might have recovered full compensation for its conversion in his suit for trespass does not affect the right of action, and only becomes material, if at all, upon the matter of costs, which must be settled at the trial term.
Exceptions overruled.
CLARK, J., did not sit: the others concurred.