Harrelson v. Miller & Lux Inc.

—Plaintiff was the owner of about 5,880 acres of land in Tulare County. This land was let by

Plaintiff contends that Crow had no right to allow defendant to pasture its sheep upon the land, basing this contention primarily upon the assumption that the agreement between plaintiff and Crow amounted to a mere cropping agreement and did not constitute a lease of the premises. We think, however, that the instrument executed by the parties to that agreement is to be construed as a lease. In reaching this conclusion we have not attached controlling importance to the fact that the instrument so characterizes itself. But, considered with the general tenor of the instrument, the fact that the parties called it a lease is some evidence that they intended it to operate as such. While retention of possession by the owner is one indication of a cropping agreement, the so-called lease repeatedly treated possession as transferred to Crow, right of re-entry being

Plaintiff next contends that Crow was not entitled to pasture the straw and stubble even if the instrument embodying their agreement did constitute a lease. This contention is based upon several grounds.

The first of these grounds is that the right to pasture the straw and stubble was outside of Crow’s rights as measured by section 820 of the Civil Code. Conceding in this behalf that the right in question is given to a tenant for years by section 819 of the Civil Code, since section 820 provides that “A tenant for years or at will has no other rights to the property than such as are given to him by the agreement or instrument by which his tenancy is acquired, or by the last section,” plaintiff argues that wherever express rights are granted to a tenant by the lease itself he cannot claim any of the rights accorded by section 819. This argument is based upon the use of the word “or,” which we have italicized in quoting the code section. [2] It is evident, however, from a consideration of sections 819 and 820, taken together, that it was intended by the legislature that a tenant for years should be entitled to the rights accorded ¡by the former section unless their exercise was forbidden by the lease itself, but that, so far as additional privileges were

It is contended, however, that the lease itself forbids the pasturing of the stubble and straw, for the reason that since express provision is made for pasturing certain of the lands demised, the failure to expressly authorize the pasturing of the stubble and straw must be held to amount to an implied prohibition by an application of the rule of construction, expressio unius est exchisio alterius. We have examined the lease which defines the rights of Crow and find that it dealt with two separate and distinct subjects, first, the letting of the grain land which was included in the demised tract, the right to pasture which is involved herein, and,.second, the letting of the pasture lands which were included in the tract, the latter demise being for an independent purpose to enable Crow to raise stock on shares and to receive stock on the land to pasture for profit. We thus find two virtually independent agreements included within one lease. [3] Under these circumstances thé fact that the lease expressly granted the right to pasture the pasture lands cannot be construed as an implied prohibition of the pasturing of the straw and stubble on the grain lands.

Apparently receding from the position taken in th~ court~ below that the lease should be construed as requiring a division of the straw between the lessor and lessee, plaintiff still contends that, if no division was to be made, at all events the straw and stubble should have been left upon the land as a fertilizer. [4] There being no express provision to this effect in the lease, an obligation on Crow’s part to so use the straw and stubble can be based, if at all, only upon the rules and usages of good husbandry prevailing in the vicinity. The evidence in the case shows without dispute, however, that pasturing grain land was a common practice as incidental to farming. This evidence, it may be noted, is also fatal to plaintiff’s contention that Crow had no right to pasture the grain land, since it was demised solely for the purpose of “farming.” The pasturing of grain land being a common practice as incidental to farming, there was no obligation on the part of Crow to leave the straw and stubble upon the land. It follows that if de-

Plaintiff insists, however, that whatever may have been Crow’s rights to pasture the grain land himself, the granting of the right to the defendant amounted to a violation of the covenant in the lease against subletting. The contract between Crow and defendant amounted essentially to a sale of the feed coupled with a mere license to come upon the land to use it. If Crow had a right to sell the feed at all he certainly had a right to grant the right to use it on the land, for obviously the stubble at least could not be otherwise utilized. [5] That the granting of such a right is not a violation of a covenant against subletting has been directly held in Baldwin v. Jacobs, 182 Iowa, 789 , [ 166 N. W. 271 , 273], This view not only accords with the rule that such covenants should he strictly construed but it also accords with a fair and reasonable construction of the covenant as forbidding the letting of the premises to a third person for the purpose of using them as it was provided that the lessee should use them, viz., for the purpose of raising grain and the development of such other interests as are usually incidental to farming.

Although defendant introduced evidence in support of its allegation of damage sustained by reason of injury to the sheep occasioned by their premature removal from the land and by reason of the loss occasioned by the premature dismantling of its watering-troughs, the court failed to find upon these issues. [6] This was error. The special damages so set up by defendant are capable of ascertainment by proof to a reasonable certainty, and so far as damage was suffered at all in the respects named, it was certainly the direct or proximate result of the act of plaintiff in forcing the removal of the sheep before the pasturage contracted for by defendant had been used. Under these circumstances there is no apparent justification for the failure of the trial court to find upon the issues tendered.

Defendant cannot, it is claimed, under its attempted appeal, avail itself of the record furnished in this case on the alternative plan, for the reason that the appeal is taken from that which does not appear in the judgment instead of from what does appear, and, therefore, is ineffectual in that there is a failure to appeal from any part of the judg

The judgment is reversed, with costs to defendant, and the cause remanded for a new trial.

Wilbur, J., Lawlor, J., Shaw, J., Angellotti, C. J., Olney, J., and Kerrigan, J., pro tem., concurred.