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way, or through a fence belonging to its owner, &c. Held — 1. That the
second clause of the 193d section was independent of the first, and that it was
not necessary that the animal entering from the highway should have been
roaming in the highway contrary to the provisions of the preceding section.
2. That by the term " owned or occupied" was meant an actual or construct-
ive occupation, and that mere ownership, while a tenant was in actual and
exclusive occupation, was not sufficient.

Whether a letting of land on shares amounts to a lease depends much on the
particular terms of the agreement.

A let his farm to B on shares, the stock being owned in common, each furnishing

^ half the seed, and receiving half the*crops, and both IMng in the house on the



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MARCH TERM, 1870. 37

Herskell r. BushncD.

fium. Held that the occapation of B as tenant did not exclude the occupation
of A, and that A under the statute oould seize and take into his custody cattle
trefpassing upon the farm in the manner therein described. [One judge dis-
senting.]
And held that he was not bound to act jointly with B in seizing the cattle.

Action on the statute (Gten. Statutes, tit. 7, sec. 200,) for
the rescue of an animal of the defendant trespassing on tlie
premises of the plaintiff and taken into his custody by the
latter under Gen. Statutes, tit. 7, sec. 193 ; appealed to the
Superior Court in New London County from the judgment of
a justice of the peace, and tried, on a general denial closed
to the court, before Carpenter^ J.

The declaration averred " that on the 25th fay of May,
1867, at &c., he, the plaintiff, seized and took into his
custody and possession five cows which were then and there
trespassing on premises occupied by him, situate [describing
the premises;] which said cows entered said premises on
which they were trespassing as aforesaid, from the highway
adjoining the same ; and the plaintiff says that the defend-
ants afterwards, to wit, on the said 25th day of May, 1867,
at said Lisbon, with force and arms, rescued said cows, seized
and taken into the custody and possession of the plaintiff as
aforesaid, out of the hands and custody of the plaintiff;
whereby and by force of which statute the defendant has
forfeited the sum of seven dollars for each of said cows so
rescued by him, &c."

The court found the following facts : Tlie cows described
in the plaintiff's declaration were taken by him from a piece
of land containing about one acre, adjoining the highway
and uninclosed, on the 25th day of May, 1867. The land
was a part of the farm owned by the plaintiff, but the farm
was then, including the land in question, in the actual occu-
pation of Augustus P. Reade, under a contract to carry on,
manage and cultivate the same upon shares. The plaintiff
and Reade each owned one-half the stock, each furnished
one-half the seed, both lived in the house on the farm, and
each received one-half the products of the farm. This con-
tract, in the opinion of the court, amounted to a lease, and
vested Reade tdth the possession of said farm.



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88 NEW LONDON AND WINDHAM.

Hcrskell v. Bushnell.

The cows were taken by the plaintiflf without authority
from Readc, and confined in the barn-yard on the farm.

They were let out of the defendant's barn-yard but a short
time before into an open yard, from which they went into the
highway, and from the highway they went on to the land
from which they were taken, (there being no fence,) the
defendant and a boy who usually drove the cows to and froiA
the pasture being in the meantime engaged in another matter.

There was no intention on the part of the defendant to
suflFer his cows to go at large, and on this occasion they were
not roaming at large on the public highway or common for
the purpose of being kept or pastured thereon.

The defendant claimed that upon these facts tlie i)laintiff
had no right to take the cows into his custody under the pro-
visions of the statute upon which the suit was brought, and
the court so ruled *.

It further appeared that in about fifteen minutes after the
cows were taken by the plaintiff, and before he had had rea-
sonable time to give the notice required by statute, they were
taken from his custody by llie defendant, who had no knowl-
edge that they were intended to be restrained or impounded
by the plaintiff, until he was in the act of taking them from
the plaintiff's custody, and that he was then informed by the
plaintiff that the cows were impounded, and forbidden to
take them until damages and fees should be paid.

* Ti e sections of the statute referred to are as follows : —

*' Sect. 192. No cattle, horses, mules, asses, sheep, goats, geese, or swine shall
roam at large upon any public highway or common, for the purpose of being
kept or pastured thereon, either with or without a keeper.

' Sect. 1 93. Any person may seize and take into his custody and possession
any animal which may be in any public highway, and opposite to land owned or
occupied ^by him, contrary to the provisions of the preceding section ; and any
person may take into his custody and possession any animal wliich may be tres-
passing upon premises owned or occupied by him, provided said animal enters
the premises from the highway, or through a fence belonging to the owner of said
animal, or through a lawful fence belonging to any other person.

" Sect. 200. Every person who shall rescue any animal seized and taken into
custody under the provisions of the 193d section of this act, out of the hands or
custody of the person thus having seized or taken it, shall forfeit the sum of
seven dollars, one-half of which forfeiture shall be to the use of him who shall
prosecute to effect, and the other hall to the treasury of the town where the
ofiense is committed."

t



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MARCH TERM, 1870. 39

Herskell v. Bushnell.

The plaintiflF claimed that the contract between the plain-
tiff and Reade did not amount to a lease, nor divest the
plaintiff of the occupancy of the premises, and prayed the
court so to decide ; but the court did not so decide.

The court having rendered judgment for the defendant,
the plaintiff moved for a new trial for error in the rulings of
the court.

A. F. Park ^nd Lucas j in support of the motion.

1. It being found that the cows were seized and taken
into custody by tlie plaintiff, while trespassing upon premises
owned by him, and that they entered upon those premises
from the highway, it is immaterial whether they were roaming
at large on the public highway for the purpose of being kept
or pastured thereon. Gen. Statutes, 130, § 193 ; 1 Swift Dig.,
653 ; Taylor's Land. & Tenant, § 765.

2. It was not necessary to pFove the occupancy alleged
in the declaration; it was suflScient to establish by legal
proof such an interest in the premises as the statute requires ;
and that is either ownership or occupancy. 1 Swift's Dig.,
654 ; Parker v. HbtchkisSy 25 Conn., 321 ; Avon Manufactur-
ing Co. V. Andrews^ 30 id., 476. Gen. Statutes, 130, §193.
But if necessary, the plaintiff proves his possession in proving
his ownership. Ownership of uninclosed land carries with it
occupancy until the contrary is shown. 1 Swift's Dig., 162 ;
Taylor's Land. & Tenant, § 86 ; Bouvier's Law Diet., " Lease."

3. The plaintiff's contract with Rea^e, as found by the
court, did not amount to a lease, or deprive the plaintiff of
the occupancy of his premises. 1st. It is not found to be a
lease in fact, nor is it a lease in form. 2d. It contains no
reservation of rent or any thing to be given or paid as rent.
3d. It contains no definite term of use nor any stipulation
for exclusive and quiet possession. 4th. The parties were
tenants in common of the products from their origin, or com-
mon occupiers, and it is for the interest of both parties to the
contract that it should receive such construction as makes
them tenants in common of the products, and the law gives
such construction in the interest of agriculture when the
contrary does not clearly appear. At most Reade's interest



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40 NEW LONDON AND WINDHAM.

Herskell v. Boshne

in the premises was that of a joint occupant with the plaiptiff,
which, if true, can be of no avail to the defendant. 1 Swift's
Dig., 131 ; Bouvier's Law Diet., "Lease" ; Bradishy. Scbenck^
8 Johns., 151 ; Caswell v. DUtrich^ 15 Wend., 879 ; Putnam
V. Wise, 1 Hill, 234; 4 Kent Com., 95, sec. 3; Walker v.
Filts, 24 Pick., 191 ; Hilliard on Eeal Prop., 199, sec. 24 ;
Taylor's Land. & Tenant, § 24 ; 1 Washb. on Real Prop., book
1, ch. 10, sec. 10 ; Bouvier's Law Diet., "Occupier ;" Web-
ster's Diet., "Occupier."

Htwetfy contra.

1. The contract between the plaintiff and Reade created
the relation of landlord and tenant between them and gave
to the latter the exclusive possession of the land upon which
the cows rescued were taken by the plaintiff. Jackson v.
BrotvneUj 1 Johns., 267 ; Moulton v. Robinson, 7 Fost., 560,
557 ; 1 Washb. on Real Prop., book ly ch. 10, sec. 10 ; JBoa-
hins V. Rhodes J 1 Gill & Johns., 266 ; Woodruff y, Adams,
6 Blackf., 817 ; RinehaH v. Olwine, 6 Watts & Serg., 157 ;
Ross V. Swaringer, 9 Ired. (Law,) 481 ; Doremas v. IhuHirdj
8 Zabr., 390 ; Blake v. Coats, 8 Iowa, 548 ; Haichdl v. JGm-
brough, 4 Jones, (N. C.) 163 ; Burns v. Cooper, 3 Penn. S.
R., 426 ; WaOs v. Preston, 26 Cal., 59 ; Walker v. Fitts, 24
Pick., 191.

2. As the cows were not roaming at large on the highway
from which they entered the premises in question, the plain-
tiff had no right to ti^ke them into his custody and possession
under the provisions of the statute upon which this suit is
brought. Gen. Statutes, tit. 7, §§ 192, 193, 197. See also
sections 180 and 190 of the same statute.

Looms, J. This as an action for a forfeiture pursuant to
section 200 of the General Statutes, page 132. To incur
the forfeiture it must appear that there was a rescue of the
cattle out of the custody of the person who seized or took
them into his custody, under the provisions of the 193d sec-
tion, page 130.

In this case there was in fact a rescue of the cattle taken.



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MARCH TERM, 1870. 41

Henketl o. BushneU.

but the forfeiture could not have been incurred unless the
cattle, when thus rescued, were lawfully in the custody of the
plaintiff.

The question to be determined th^efore is, whether the
taking of the cattile by the plaintiff, in this case, was author-
ioed by the statute.

The statute under which the plaintiff took the cattle is as
follows : — ^'^ Any person may take into his custody and pos-

• session any animal which may be tre^assing upon premises
owned or occupied by him, provided said animal enters the
fnremises from the highway, or through a fence belonging to
the owner of said animal, or through a lawful fence belong-
ing to any other person." Gen. Statutes, p. 130, sect. 198.

There are three requisites to a lawfiil taking of the animals
under this statute.

1. The premises where the animal is found must be owned
or occupied by the person so taking the animal.

2. The animal must be trespassing.

8. It must have entered the premises in one of the three
ways mentioned in the proviso of the statute ; namely, from

• the highway, or through a fence belonging to the owner of
the animal, or through a lawful fence of any other person.

First. Had the plaintiff the requisite interest in the prem-
ises where the cattle were taken ?

What sort of interest is contemplated by the words "owned
or occupied ?" Is mere ownership suflBcient when the occu-
pation is in anotiier 7

Looking simply at the grammatical construction of the
phrase, and giving the ordinary meaning to each word, and
to the diqunctive " or" between the words, we should consider
it sufficient if there was mere ownership of the premises
without occupation, or actual occupation without ownership :
but when we consider that the statute gives the right to take
the animals only when trespassing on the premises, we are
induced to believe that the intention of the act was to confer
tills summary remedy only upon the possessor of the prem-
ises in a case where the possession was injured. Tne phrase

Vol. xxxvn. — 6



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42 NEW LONDON AND WINDHAM.

Herskell v. Bnshnell-

"owned or occupied" is therefore to be construed with refer-
ence to the principles applicable to trespass.

The general ownership draws with it the constructive pos-
session, if the" premises are not in the possession of some
other person ; but if the possession is in another, then only
the person in actual possession can defend and protect that
possession by taking the cattle into custody. No one else
indeed would have any right to enter on the premises for
any such purpose.

The terms "owned or occupied," as used in this statute,
are to be considered convertible terms, the meaning being,
that the premises must be in the actual or constructive occu-
pation of the person who is authorized to take the animals.
If, therefore, the plaintiff was a mere owner of the premises,
but had, as claimed by the defendant, leased the same to
Reade, who was at the time in actual occupation, then the
judgment of the court for the defendant would have been
correct.

But do the facts found by the court show such a lease of
the premises from the plaintiff to Reade as divested the for-
mer of possession and conferred it upon the latter ?

It might seem at first blush that the finding of the court
concluded the parties upon this issue, and settled the matter,
as a question of fact, that the premises were in the actual
occupation of Reade ; but this view is not correct.

The court, it is true, finds that the premises were in the
actual occupation of Reade, but it is plainly found as an in-
ference of law from certain facts stated. It is expressly
stated thac Reade's occupation was under a contract between
him and the plaintiff, to carry on, manage and cultivate the
farm upon shares for one year, and that this contract was
that the plaintiff and Reade each owned one-half the stock,
each fumisjied one-half the seed, each lived in the house on
the farm, and each received one-half the products of the
farm. Upon these facts as to the contract it appears that
the parties were at issue upon a question of law, — whether it
amounted to a lease so as to divest the plaintiff of the occu-
pancy ; and the court fomid, contrary to the claim of the



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MARCH TERM, 1870. 43

Herskell »'. Bushnell.

plaintiff, that this contract amounted to a lease and vested
Reade witn the possession of the farm. Tlie question there-
fore is fairly open to review, as matter of law, whether or
not the court was correct in deciding that the contract above
mentioned amounted to a lease, and vested the possession of
the land in Reade as tenant.

The courts have found it difficult to fix any general inile
by which to determine whether or not the carrying on a farm
by one not the owner upon shares, constitutes him a tenant
with a separate right of property in the crops, and the author-
ities in different states, and even in the same state, are not
perfectly uniform. Whether a letting on shares amounts to
a lease, depends much on the particular terms of the agree-
ment. It may be considered mere payment for the labor of
cultivating the farm by a part of the crops raised, as would
usually be the case where land is let on shares for a single
crop ; or it may make the owner and occupier tenants in
common of the crops, being a mere agreement that the occu-
pier shall •work the farm a certain time and divide the profits
with the owner ; or it may amount to a lease, giving the
occupant an exclusive interest in the soil, as where the
occupant is to pay a certain quantity of grain or hay for the
premises, the owner of the soil having no intei^est till tlie
grain or hay is actually delivered.

In the state of New York, where the form of the agreement
was like a lease, reserving rent, an^ was for any definite time,
the earlier Cases, as in Stewart v. Doughty^ 9 Johns., 108, and
Jaek%on v. BroumeU, 1 Johns., 267, held it to amount to a
lease, but the later and better considered cases in the same
state have overrule^ the doctrine of the cases referred to.

In Camoell v. Districhy 15 Wend., 379, where the agree-
ment was to let land on shares for one year, the occupant
yielding a certain portion of each crop to the owner of the
land, the court held that it was a letting upon shares merely,
and not a lease to render rent. Nelson, J., in giving the
opinion, after alhiding to the fact that tliere was nothing in
the contract to indicate that the stipulation for a portion of
th# crops was by way of rent, and that the shares were of



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44 NEW LONDON A2fD WINDHAM.

HerskeU v, BashnelL

specific crops raised upon the farm, remarks : — " It is very
material to the landlord, and no injury to the tenant, that
this view of the contract should be maintained, unless other-
wise clearly expressed, for then the landlord has an interest
to the extent of his share in the crops. If it is deemed rent
the whole interest belongs to the tenant until a division.
Where a farm is let for a year upon shares, the landlord looks
to his interest in the crop as his security, and tliercby is en-
abled to accommodate tenants who otherwise would not be
trusted for the rent."

In Putnam v. TFw«, 1 Hill, 234, the owners of a farm
agreed with two persons, by contract under seal, containing
the technical phraseology of a lease reserving rent, that they
should occupy the farm and work it for one year, and if they
performed the agreement might have it in the same way for
a year longer, the occupiers agreeing hi consideration thereof
to yield and pay the owners one half of all the grain raised ;
and the court held that until a division the parties were ten^
ants in common. Cowen, J., held that, in order to determine
whether such a contract was to be regarded as a lease or not,
the true test was to see if there was any provision in whatever
form for dividing the specific products of the premises. If
such a provision was found the parties should be regarded as
tenants in common. In Dinehart v. Wilson^ 15 Barb., 696,
will be found a similar decision, recognizing the same test as
above mentioned.

In Walker v. FitU^ 24 Pick., 191, there was a written con-
tract between the plaintiff and defendant that the latter
should cultivate tho plaintiff's farm for one season, each fur-
nishing one-half the seed, Fitts to manage according to the
rules of good husbandry, arid to deliver to the plaintiff one-
half of the crops of every kind, properly secured in the
plaintiff's house, cellar and bam, the corn to be divided in
the ear, other grain to be threshed and then divided. Tins
was held not a contract of hire, nor a mere license to enter
and cultivate the farm, nor a tenancy at will, but the parties
were tenants in common of the crops growing until a division.
Morton, J., in giving the opinion, with great good sen#e



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MARCH TERM, 1870. i5

UenkeU u. BusUneU.

remarks : — " The principle that the owner and ocoupaat are
tenants in common of the forthcoming crop during all ite
stages of growth and preparation for use and until a sever-
ance by the parties, is not only supported by authority but
founded in good sense and justice. It better protects the
rights and interests of both parties, and is more salutary in
its operation than 9^j other rule."

In the light of these cases, we think the contract as found
by the court, in the case now under consideration, makes
the plaintiff and Reade tenants in common of the crops. It
is possible that the whole contract is not reported, but as the
court below assumed to give the terms of the contract we
must treat it as containing all the essential features. It no
where appears that one-half the products was to be rendered
by Reade and received by the plaintiff as rent, or that tlie
contract in terms gave the exclusive possession to Reade ; it
was not in the form, nor did it contain the technical phrase-
ology, of a lease.

The contract as given exhibits the parties as both living in
the house on the premises, boUi placing stock on the farm,
both furnishing seed with which to sow and plant, both re-
ceiving the products of the farm of every kuid, share and
fihai'e alike. There is therefore no feature of a lease, giving
Reade exclusive possession and separate right of property in
the crops, but every feature of a tenancy in common of all
the crops and products of the farm, from their origin untU
divided.

The entry of cattle on these premises inflicted a common
injury upon the plaintiff and Reade.

The plaintiff, therefore, ought to be considered an occupant,
with tlio right to take into his custody tlie cattle found doing
damage to crops in which he has a joint and common interest
with another. The fact that the interest of the plaintiff is
in common with another will not make the taking by the
plaintiff alone illegal. If the plaintiff had sued in his own
name for the injury, in an action of trespass, advantage
could have been taken of the omission to join Reade, the co-
tenant, only by a plea in abatement. It could not have been



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46 NEW LONDON AND WINDHAM.

Herskell i;. Bnshnell.

taken advantage of under the general iftsue, because proof
that the right violated was joint is no proof that the plaintifiF*s
property was not injured by the defendant's cattle. Gould's
Pleading, p. 276, § HI.

If not available in a direct action of trespass for the injury,
certainly it cannot be in this action for a forfeiture, where the
only question is whether the plaintiflf had such an interest
under the statute as gave him the right to take the cattle into
his custody, and for this purpose surely a joint interest is as
good as a several interest.

It would be absurd to require both tenants in common to
participate in taking the animals into custody. Each has an
immediate right and interest to protect that requires this
summary remedy, and in protecting his own interest he pro-
tects that ot his co-tenant, who cannot complain because he
was not first consulted.

The plaintiff, therefore, is entitled to a new trial, unless
the other facts of the case show that he had no right to take
the cattle, and therefore suffered no injury on account of the
erroneous decision above mentioned.

The second requisite we have already mentioned as essen-
tial to a lawful taking, is that the animals be found trespass-
ing. Upon this part of the case no question is presented by
the record for our decision. It appears, however, that the
cattle were taken by the plaintiff while they were upon the
land referred to, where they had no la^vful right to be, which
would constitute trespass at common law.

The only remaining question which the record presents, is,
whether the cattle must have been roaming at large in the
highway, for the pm^ose of being kept or pastured thereon,
at the time they left the highway and entered the plaintiflF's
premises ? The court decides this question in the aflSrmative.
Is the decision correct ?

That section of the statute by virtue of which the animals
were taken, (Gren. Statutes, p. 180, sect. 193,) contains two
distinct parts or provisions. The first part provides that
" any person may seize and take into his custody and posses-
sion any animal which may be in any public highway, and



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MARCH TERM, 1870. 47

, ! ! ;

Herskell v. Bnshnell.

opposite to land owned or occupied by him, contrary to the
provisions of the preceding section." Then follows the sec-
ond provision : " AnA any person may take into his custody
and possession any animal which may be trespassing upon
premises owned or occupied by him, provided said animal
enters the premises from the highway, or through a fence
belonging to the owner of said animal, or through a lawful
fence belonging to any other person."

It is obvious that this second provision is independent of
the other, and being so, the words at the end of the first pro-
vision, " contrary to the provisions of the preceding section,"
cannot apply to, or in any way qualify, the second clause.
The preceding section above referred to is the section of the
statute that prohibits animals from running at large upon
any public highway or common for the purpose of being kept
or pastured thereon. The second part of this section is com-



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