Henly v. Neal
| Decision Date | 31 December 1841 |
| Parties | HENLY v. NEAL. |
| Court | Tennessee Supreme Court |
This action was instituted in the circuit court of Sumner county, and tried before Judge Maney at the February term, 1841. A verdict was rendered in favor of the plaintiff and the judgment arrested.
The plaintiff appealed in error.
Guild, for the plaintiff; White, for the defendant.
This is an action on the case. The declaration states the cause of action as follows:
“For that whereas, heretofore, to wit, the plaintiff on the 1st day of August, 1840, and previous thereto, to wit, from the 1st day of January, 1840, till the 1st day of August as aforesaid, had leased land of the defendant and was peaceably possessed thereof, and had in cultivation, to wit, in corn growing, a field of eight and one-fourth acres, lying in the county of Sumner, which eight and one-fourth acres in cultivation as aforesaid was enclosed by a fence, which likewise enclosed an adjoining field of oats of the defendants, without there being any division fence between the said fields, and thereon the said Creath Neal, on the 1st day of August, 1840, without the permission and against plaintiff's orders, turned his stock into his said field after having taken off his oats, consisting of about 100 head of hogs, thirty head of cattle, horses, etc., and then and there the said stock of hogs, cattle and horses came from the said field of defendant into the growing corn of the plaintiff, there being no cross or dividing fence between the plaintiff's corn and the defendant's stubblefield, and consumed, eat up and destroyed the said field of corn of the plaintiff, of great value to-wit, of the value of $200, which the defendant knew they would do when he turned said stock into the defendant's field; whereupon the plaintiff saith that he hath sustained damages, etc.
There was another count in the declaration, to which the defendant demurred.
The defendant pleaded not guilty, and upon this plea there was a verdict for the plaintiff, assessing his damage at $40.
The defendant moved in arrest of judgment, which motion was sustained by the court. A nolle prosequi was entered as to the second count of the declaration, and the plaintiff appealed in error to this court.
The counsel for the defendant insists that the judgment of the court below was correct.
1st. Because there is no good cause of action in the facts set out in the plaintiff's declaration. The facts stated in the declaration are, briefly, that the plaintiff had leased from the defendant eight and one-fourth acres of ground, part of a large field, for the year 1840, which he had planted and cultivated in corn, and that the defendant had cultivated the remaining part of the field in oats; that, after the oats were taken off, the defendant turned his hogs and cattle into his oats-field, and, there being no dividing fence between the oats and corn, the hogs and cattle passed into the plaintiff's corn and destroyed it. This statement consitutes a good cause of action.
It was not necessary that the plaintiff should aver that it was the duty of the defendant to build a dividing fence.
The defendant having leased part of the field to the plaintiff, the whole field being then enclosed, he had no right to remove any part of the enclosure. It follows that he had no right to put his stock within the enclosure, so as to cause injury to the plaintiff.
The plaintiff was not bound to build a division fence.
When one man rents a given portion of a field, to be cultivated in a given crop, he is prohibited from doing anything, or so using the remainder of the field, as to defeat the very object for which the tenant had rented the land.
He may not by any act of his prevent the tenant from enjoying the use of the land for the purpose for which he had rented it. If he does interrupt that enjoyment, either directly, by a trespass upon his tenant, or indirectly, by tearing away portions of the enclosure, so that, as a consequence, cattle shall enter and destroy the tenant's...
To continue reading
Request your trial
-
Kelly v. Easton
...and tenant, in the absence of a specific agreement to the contrary. The correct rule in this regard was, we think, announced in Henly v. Neal, 21 Tenn. 551, that: "When man rents to another a given portion of a field in one inclosure, . . . . he is prohibited from doing anything, or so usin......