Giles C. Calhoun vs. Elias Curtis, 4 Met. 413

Shaw, C. J. It might well be contended, that after the plaintiff had taken one half of the rye and placed it in his own barn, under a claim of right, he had at least a lawful possession which the defendant could not invade ; that the taking was therefore ‘ unlawful, and that trespass de bonis asportatis would lie. But upon another ground, the court are of opinion that the action well lies. The defendant, as tenant in common, had a lawful right to enter upon the land and to improve it; and such improvemen» would necessarily be exclusive, unless some cotenant had chosen to occupy with him, or claim partition.

Sargent v. Parsons, 12 Mass. 149. If therefore the other cotenants had acquiesced in his separate occupation, until the crop of rye had been gathered, we entertain no doubt that the rye would have been his, and without liability to account. But the cotenants may interrupt such exclusive occupation by one tenant in common, either by occupying with him, or by having partition. A right of partition is one of the incidents of an estate in common.

A growing crop is part of the freehold ; and the general rule is, that the right to a growing crop follows the right of soil, unless in special cases, where by contract, or custom, or by special rules of law, one person can claim an interest in the soil of another. Chandler v. Thurston, 10 Pick. 210. 1 U. S. Digest, Crops and Emblements. When, therefore, partition is made, that which was before common becomes several — as well the incidents, as the soil itself; and the crop, growing on the purparty of each, becomes the property of each, in severalty. The defendant brings himself within no exception.

He made no contract, express or implied, with his cotenants, either to cultivate the land for his own benefit, or to purchase the crop, or otherwise. He entered upon and improved the land solely on his own right as tenant in common. He could not claim emblements; for he was not tenant for life, nor at will.

His case is not within the equitable principle on which emblements are allowed by law to an outgoing tenant, because, when he sowed the rye, he knew that the land was at any time subject to partition, on the application of his cotenants, or any of them, and of course might be divided and assigned to another cotenant, in severalty, before the crop could come to maturity.

So far as the defendant had any equitable claim for service in cultivating the land for others’ benefit — which, however, cannot affect the question of ownership of the giain raised — the defendant obtained it, by being allowed to t half the rye, without objection. Judgment for the plaintiff.