Fox v. Brissa C.

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.

This was trespass brought by plaintiff to recover damages for an entry upon real estate in his possession. The question involved is as to the right of the landlord to enter for a breach of covenant in the lease, and forcibly eject the tenant.

The early English authorities assert this right on the part of the landlord. But modern decisions, and the reason and policy of the law, are opposed to it. (See 4 Kent, 119 ; Taylor’s Landlord and Tenant, sec. 531; Sampson v. Henry, 11 Pick. 379.) The law gives ample redress, and a summary process for the vindication of the rights of the landlord in such instances; and no more reason is perceived for allowing this extraordinary mode for redressing personal grievances in the [226]case of real estate than in the case of chattels. To hold the doctrine contended for, would be of dangerous tendency, and lead to breaches of the peace and oppression.

We see no error in the charge, allowing a recovery for the value of the vegetables, and of grape vines growing in the nursery. The vines seem to have been planted for sale, and cannot be considered in any different relation to the freehold from crops of grain, etc.

Judgment affirmed.

On petition for rehearing, Baldwin, J. delivered the opinion of the Court—Field, C. J. concurring.

Rehearing refused. To prevent any misapprehension from the original opinion, it is proper to state that the entry by this defendant, for which a recovery below was had, was under a lease to plaintiff, reserving no right of entry for a breach of the covenant, for which breach the defendant claims his right to enter and eject the plaintiff.