Dorsey v. Eagle , 7 G. & J. 321 ( 1835 )

Spence, Judge,

delivered the opinion of the court

This was an action of trespass quare clausum fregit, brought by Dennis Dorsey (now appellant) against William-Eagle, the (appellee) to the February Term, 1832, of Frederick county court. The declaration contained the ordinary count, to which the defendant pleaded not guilty, and issue was joined.

Upon the trial, the plaintiff offered parol evidence to prove that, by the manor regulations, the tenants have a right to remove their away-going crops, at any time within a reasonable period, after the determination of their leases; but to the admissibility of this evidence, the defendant objected ; the court overruled the objection, and permitted the evidence to go to the jury; the defendant excepted.

The first question therefore, which is presented in this cause for adjudication is, was it error on the part of the county court, in permitting the plaintiff to offer parol evidence, to shew what the manor regulations were ?

It is conceded, that if the lease were silent upon the subject of the manor regulations, that then, parol evidence -would be admissible, to prove that the tenants have a right, by the custom of the manor, to remove their away-going crops, at any time within a reasonable period, after the determination of their leases; because, the law itself would admit evidence, extrinsic of the written agreement of the custom of the manor, for the purpose of annexing it incidentally to the terms of the written instrument concerning which it was silent.

The lease which was admitted in evidence in this cause, among many other stipulations, has this one — “in other respects, the said Dorsey is to have and to hold the premises according to manor regulations.” The parties having thus by their written agreement, made the manor regulations a part of their.-pontract, and if they had omitted to do so, the law would have áifnexed them by intendment as a part of their contract, we are at a loss to discover the force of the argument which would exclude the evidence when offered for this purpose. Will it be gravely contended, that an express agreement, (and one which is precisely such a provision too as the law itself would annex to the contract by intendment;) is either inoperative or void, because the parties have thus set it out in terms ?

We have endeavoured in vain to discover in what possible manner, this parol evidence, can by any mode of interpretation, be made to vary, add to, or contradict the written agreement of the parties to the lease; and it is a well settled principle of law, that parol evidence may be given of collateral and independent facts, which tend to support a deed, provided it is not offered to vary the agreement, and is consistent with the deed. Sug. Vend. 97. Phil. Evidence, 425. 1 John. Ch. Rep. 370. We are therefore of opinion, that the county court decided this point correctly, and that the parol evidence was admissible to go to the jury for this purpose.

The next question presented for revision and adjudication, arises upon an exception taken by the plaintiff's counsel, to the following opinion, and instruction of the court to the jury, viz : — “ that if the jury shall believe from the evidence in the cause, that the defendant was in possession of the said farm at the time of the supposed trespass, and that the plaintiff’s right to gather and remove his corn was a privilege and easement, a mere right of ingress, egress, and regress, that then the plaintiff was not entitled to recover in this case.”

The possession was in this case; a question of fact, and we think, properly submitted by the court to the jury, by them to be ascertained and determined.

It is ingeniously urged in the argument, that the right of ingress, egress, and regress, was a privilege and easement, and therefore, a legal inference which ’should have been determined by the court.

If the contracting parties to the leasq' had not made the manor regulations a part of their agreement in express terms, then there would have been strength in this argument; because then, the question would have been one of law, which the court should have determined.

But the parties having provided by their agreement, that the manor regulations should form a part of their contract, what these regulations were could only be ascertained by evidence, and upon that evidence, depended Dorsey’s privilege of ingress, egress, and regress, for the purpose of removing his away-growing crops; and we are of opinion, that the question of Dorsey’s right of ingress, &c., was not an inference of law, but a question of fact, which was properly submitted by the court to the jury, by them to be found.

The appellant’s counsel, in his argument to convince this court, that the opinion and direction of the county court, to which he excepied, (and which forms the second bill of exceptions in this cause) were erroneous, insists, that the plaintiff had such a possession as wmuld in law, enable him to maintain an action of trespass quare clausum fregit.

Many authorities have been cited to establish the principle of law, that the term “ close,” being technical, signifying the interest in the soil only, that the action of trespass quare clausum fregit, can be sustained, however temporary the plaintiff’s interest, and although it be merely in the property of the soil, as vestura terree or herbagii pastures, prima tonsura, fyc. Of the soundness of this position, there cannot rest a doubt, and if this case had fallen within it, there could not be a question as to the legal conclusion. But after a deliberate examination of all the authorities invoked, we are of opinion, that they all as distinctly sanction the principle to be law, that this temporary interest, must be an entire or exclusive interest and possession, as that an action can be maintained when there is a temporary interest only. The distinction taken in the cases, is between exclusive rights, and rights in common.

We find it recognized in the case of Wilson vs. Mackreth, 3 Burr. 1824; which is referred to in many of the cases, and in Crosby vs. Wadsworth, 6 East, 610, and in Clap vs. Draper, 4 Mass. Rep. 268.

The question presented to us here is this, was Dorsey the appellant, at the time of the supposed trespass, viz. on the 25th day of December, in the year 1831, entitled to an exclusive interest to the soil, in the locus in quo.

By the manor regulations which the appellant himself offered parol evidence to establish, Eagle, the in-coming tenant, had the right and privilege of seeding down the cornfields of the out-going tenant in wheat and rye, before the crop of Indian corn was fit for gathering, and there was evidence that Eagle the appellant, did enter upon the farm and take possession of the same, on the 29th day of September, 1831, and seed down the fields (the locus in quo) in wheat and rye, and this crop was growing upon the locus in quo, at the time of the supposed trespass.

In order then for us to reach the conclusion, here set up, we must be of opinion, that the out-going tenant, had an exclusive interest in, and the possession of this portion of soil, for the maturing of his crop of Indian corn, on the 25th day of December, 1831; and that at the same moment of time, Eagle, the tenant on the farm, (for it was in evidence to the jury that Dorsey had moved out and that Eagle .had moved in) had an exclusive interest in, and possession of this same portion of soil, for the maturing his crop of wheat and rye. But we are of the opinion, that this is a conclusion to which we cannot arrive, by any principle of sound legal reasoning.

In relation to the last point suggested by appellant’s counsel, viz: that from the instruction and opinion of the court, the jury have found an inference of law, arising from the facts in the case; this point we think was suggested at the trial of the county court by the defendant’s prayer, and we have endeavoured to show in a former part of this opinion, that Dorsey’s right of ingress, &c. was not an inference of law, but a question of fact in the cause; and therefore properly submitted by the court to the determination of the jury.

Concurring therefore with the county court in this opinion we affirm their judgment.

JUDGMENT AFFIRMED.